CFI, 4th chamber, March 15, 2000, No T-25/95

V The pleas alleging infringements of Article 85 (1) of the Treaty and of the rights of the defence in that the Commission finds the existence of three Franco-Italian concerted practices which infringed Article 85 (1) of the Treaty and that the applicants in question participated in them (Article 3 (1) (a), (b) and (c) of the contested decision)

Introduction

1819. The Commission alleges, in Article 3 (1) (a), (b) and (c) of the contested decision, three concerted practices corresponding to a similar number of bilateral relationships allegedly constituting infringements between the Italian cement producer Buzzi, on the one hand, and the three French cement producers Lafarge, Ciments Français and Vicat, on the other.

1820. In Article 3 (1) (a) it complains that Lafarge and Buzzi infringed, from 26 November to 31 December 1988, the provisions of Article 85 (1) of the EC Treaty by participating in a concerted practice involving the sharing of the market in southern France and the restriction of their autonomy of conduct with regard to production sources.

1821. In Article 3 (1) (b) it complains that Ciments Français and Buzzi infringed, from 17 March to 31 December 1988, the provisions of Article 85 (1) of the Treaty by participating in a concerted practice involving information on current prices and a forecast of price increases, with a view to the restriction of their autonomy of conduct.

1822. In Article 3 (1) (c) it complains that Vicat and Buzzi infringed, from 11 May 1983 to 31 December 1988, the provisions of Article 85 (1) of the Treaty by participating in a concerted practice involving the exchange of price information with a view to the restriction of their autonomy of conduct as regards cement supplies in southern France.

1823. Lafarge (T-43-95) claims that the Commission infringed Article 85 (1) of the Treaty by finding that it had participated in an anti-competitive concerted practice with Buzzi. During the present proceedings, and in particular in the documents which it sent to the Court of First Instance on 10 February 1997 and 28 January 1998 following the measures of 2 October 1996 and 18 and 19 June 1997 (see paragraphs 164 and 168 above), Lafarge has not argued that that finding was made in detriment of its rights of defence.

1824. Ciments Français (T-39-95) submits that the Commission made several manifest errors of assessment and that it breached its rights of defence in finding that it participated in an anti-competitive concerted practice with Buzzi.

1825. Vicat (T-37-95) claims that the Commission made an error of assessment and that it breached its rights of defence in finding that it had participated in an anti-competitive concerted practice with Buzzi.

1826. Buzzi (T-51-95) complains that the Commission made several errors of assessment and breached Article 85 (1) of the Treaty and its rights of defence in finding that it had participated in three anti-competitive concerted practices with Lafarge, Ciments Français and Vicat respectively.

1827. As stated above (see paragraphs 1819 to 1822 above), although the Commission finds that 'continuity is thus evident in Buzzi's conduct, whose 'information ..., even though it was provided individually to the three French producers, ultimately benefited all three (contested decision, recital 48, paragraph 7), separately finds, in Article 3 (1) of the contested decision, three concerted practices, without mentioning on each occasion the same addressees, while deeming each of those practices to have been of different duration. The only result common to all of them, which it bases on its findings with regard to Buzzi's conduct, is the date on which the three infringements ended, which it fixes at 31 December 1988 for each of them (recital 48, paragraph 7, of the contested decision).

1828. In order to assess the legality of Article 3 (1) of the contested decision, it is necessary to ascertain whether the Commission was entitled to find three concerted practices and whether it breached the rights of defence of Vicat, Ciments Français and Buzzi.

Concerted practice between Lafarge and Buzzi found in Article 3 (1) (a) of the contested decision

A Introduction

1829. As a basis for its conclusion that the infringement of which it accuses Lafarge and Buzzi (see paragraph 1820 above) existed, the Commission relies on the following extract from the record drawn up by Pierre Saint-Hillier of Lafarge at a meeting held with Emmanuello Buzzi of Buzzi, on 26 November 1988 (contested decision, recital 20, paragraph 3; document 33.126-6857 bis):

'Several subjects were discussed:

1. South of France

Emmanuello understood (following meeting with G. Liduena) that he had three possibilities:

Build a clinker plant near the sea

Build a grinding plant

Close the plant. Negotiate markets. Set up supply company, for supplies either from La Malle, or from Robilante, or through imports (e.g. Greece).

I said there was no urgency as we had 15 or 20 years of reserves. The problem was chiefly the operating licence.

Buzzi's position:

The market belonged to Ciments Lafarge.

No desire to enter Côte d'Azur to upset the market.

They have had only two or three customers in 20 years.

A war is pointless.

Agreements must be concluded to avoid conflict.

Prepared to consider joint venture.

1830. The Commission sees in this extract 'a statement of intent to share the Côte d'Azur market and to share cement supply sources in the medium and long term (contested decision, recital 20, paragraph 3). It finds that there was a concerted practice between Lafarge and Buzzi in contravention of Article 85 (1) of the Treaty: 'Whereas the provisions of that Article prohibit any direct or indirect contact intended to reveal to a competitor the conduct which one has decided or plans to adopt on the market, Buzzi and Lafarge, through the contact which they had on 26 November 1988, took concerted action ... to restrict their autonomy of behaviour and, in particular, Buzzi's autonomy of behaviour and, ultimately, to share the market in the south of France and restrict their future autonomy regarding sources of supply in the regions along the Franco-Italian frontier (contested decision, recital 48, paragraph 3).

B Correspondence between the Statement of Objections (SO) and the contested decision

1831. Buzzi states that it is surprised to be accused of having participated in a concerted practice with Lafarge with the object of restricting their autonomy of behaviour in the management of their sources of supply, when no such allegation appeared in the SO.

1832. It must first of all be observed that, in the 'Facts of the SO on the 'Implementation of the Cembureau agreement or Principle of not transhipping to internal European markets France-Italy and in particular on 'relations between Buzzi and Lafarge, the only passage of the abovementioned record of the meeting of 26 November 1988 between Lafarge and Buzzi which the Commission mentioned was that summarising Buzzi's position (see paragraph 1829 above). The Commission further stated: 'The introduction to the record states that: Cette rencontre fait suite à celle que nous avions eue à Paris avec Sandro et Emanuele Buzzi en septembre dernier, au cours de laquelle nous avions envisagé la possibilité d'un accord sur les affaires de béton (That meeting followed the one we held in Paris with Sandro and Emanuele Buzzi last September, during which we envisaged the possibility of an agreement on cement) (SO, point 10, p. 21). On the other hand, the Commission did not refer in the facts of the SO to the excerpt from the record of the meeting relating to the 'three options envisaged by Buzzi 'following the meeting with G. Liduena namely to build a clinker plant near the sea, build a grinding plant or close the plant, negotiate markets and set up a supply company for supplies either from La Malle, or from Robilante, or through imports (e.g. Greece) at the end of which Lafarge had said to Buzzi that there was no urgency because there were 15 or 20 years of reserves.

1833. In point 61 (b) of the SO (p. 173), concerning the legal assessment of the facts relating to the Franco-Italian agreements and-or concerted practices, the Commission complained that Lafarge and Buzzi in particular had participated in agreements and-or concerted practices the object of which was 'sharing the markets between such producers, excluding any uncertainty as to their mutual conduct and depriving consumers of the economic possibility of choosing their sources of supply. Although the Commission accused Lafarge and Buzzi of having, through their agreement and-or concerted practice to share the markets, deprived consumers of the economic choice as to their sources of supply, it did not, however, object to the parties having colluded to restrict their autonomy of behaviour with regard to their sources of supply.

1834. The Court therefore upholds Buzzi's argument that the SO is not in conformity with the contested decision as regards the accusation that it participated in a concerted practice with Lafarge concerning such a restriction.

1835. It follows that, so far as concerns that accusation, Article 3 (1) (a) of the contested decision must be annulled as against Buzzi, and, consequently, also as against Lafarge, which cannot be accused of having participated in alleged concerted action relating to the sharing of source of supply in the Franco-Italian border region, since that accusation may no longer be maintained against the only other party to the alleged concerted action.

C The existence of an anti-competitive concerted practice between Lafarge and Buzzi with regard to the sharing of the south of France market

1836. In view of the conclusion arrived at in the preceding paragraph, all that need be ascertained is whether the Commission was legally justified in considering that Lafarge and Buzzi were guilty, when they met on 26 November 1988, of a concerted practice contrary to Article 85 (1) of the Treaty in so far as the meeting concerned 'the sharing of the market in the south of France (Article 3 (1) (a) of the contested decision).

1837. Lafarge observes that the Commission relies on a single document, which is not corroborated by any other evidence or indication, in order to prove the accusation it makes in Article 3 (1) (a) of the contested decision. Buzzi is of the view that the Commission disregarded the doctrine laid down in the case-law on the burden of proof by basing its allegations solely on the internal Lafarge memorandum concerning the 26 November 1988 meeting.

1838. It should however be pointed out that there is no principle of Community law which precludes the Commission from relying on a single piece of evidence in order to conclude that Article 85 (1) of the Treaty has been infringed, provided that its evidential value is undoubted and that the evidence itself definitely attests to the existence of the infringement in question. In this connection, in order to assess the evidential value of a document, regard should be had first and foremost to the credibility of the account it contains. Regard should be had in particular to the person from whom the document originates, the circumstances in which it came into being, the person to whom it was addressed and whether, on its face, the document appears sound and reliable (Opinion of Mr Vesterdorf acting as Advocate General in Rhône-Poulenc v Commission, cited in paragraph 1053 above, p. II-956).

1839. In the present case, the record of the meeting held on 26 November 1988 between Lafarge and Buzzi was drawn up shortly afterwards by Mr Saint-Hillier, Lafarge's representative at the meeting, since it was distributed within the Lafarge company on 1 December 1988. The applicants put forward no argument which would make it possible to consider that the information contained in that document does not reflect the content of the discussions held on that occasion.

1840. Without prejudging the question considered below at paragraphs 1843 to 1876 as to whether the excerpt from the minutes in question, set out at recital 20, paragraph 3, of the contested decision, in itself proves the existence of the infringement as found, it must thus be concluded at this stage that there is no doubt as to the evidential value of that document and that the Commission was right to rely on it. The fact as pointed out by Buzzi at the hearing that the minutes were distributed within Lafarge by Mr Liduena, and not by Mr Saint-Hillier, its author, is of no significance in that respect.

1841. Buzzi further criticises the Commission for substantiating its claim that there was concerted action with Lafarge by means of evidence based on contacts which it had had with other French producers, claiming that the various bilateral relations which it maintained with the latter producers were unique.

1842. However, perusal of recital 20, paragraphs 3 and 7, and of recital 48, paragraphs 3 and 7, of the contested decision clearly show that the Commission based the various aspects of the infringement of which Lafarge and Buzzi are accused (existence of a concerted action, anti-competitive purpose and duration thereof) solely on the excerpt, reproduced in recital 20, paragraph 3, of the contested decision, of the record of the meeting held on 26 November 1988. Buzzi's argument must therefore be rejected.

1843. Next, Lafarge and Buzzi put forward eight arguments, essentially denying the existence of an anti-competitive concerted practice involving the sharing of the market of the south of France.

1844. First, Buzzi claims that the Commission committed a manifest error of assessment in stating, at recital 20, paragraph 2, of the contested decision that 'in the period in question, the prices charged by Italian producers were roughly 20% lower than prices charged by French producers. In actual fact, from 1983 to 1988, the prices charged by Italian producers were always, apart from those for 1988, higher than those charged by French producers, as shown by a comparison between its own Cement 425 prices and those charged by Vicat for CPJ 45 cement (Annex 17 to the application).

1845. The Court points out that the figures produced by the Italian cement industry at the hearing of 2 March 1993 show that the French prices were, on average, always 20% higher than the Italian prices during the period 1981 to 1991 (contested decision, recital 9, paragraph 6, and the tables in Annexes 9-3 and 9-4).

1846. Furthermore, the analysis put forward by Buzzi in fact challenges the Commission's argument for the period prior to that under consideration in respect of the infringement at issue.

1847. In any event, it does not make it possible to disregard the statements, cited above, which it made to Lafarge during the meeting of 26 November 1988:

' No desire to enter Côte d'Azur to upset the market ...

A war is pointless.

Agreements must be concluded to avoid conflict.

1848. Secondly, Buzzi maintains that the Commission, by merely stating that Buzzi had informed Lafarge of the conduct which it planned to adopt on the market in question, without stating that Lafarge did likewise vis-à-vis Buzzi, has not shown that there was an element of reciprocity, which is necessary in order to prove that there was a concerted practice within the meaning of Article 85 (1) of the Treaty. Lafarge claims for its part that the fact that one party lets another party know of its personal point of view cannot reasonably lead to the conclusion that there is a concerted practice.

1849. In that connection, the Court points out that the concept of concerted practice does in fact imply the existence of reciprocal contacts (Opinion of Advocate General Darmon in Woodpulp II, cited at paragraph 697 above, points 170 to 175). That condition is met where one competitor discloses its future intentions or conduct on the market to another when the latter requests it or, at the very least, accepts it. Perusal of the covering letter with which Mr Liduena of Lafarge distributed within his company the minutes of the meeting of 26 November 1988 reveals that the meeting was held at the behest of Lafarge. Moreover, there is nothing in those minutes drawn up by Lafarge which shows that its representative expressed any reservations or objections whatsoever when Buzzi informed it of its position regarding the market in the south of France. In those circumstances, the applicants cannot seek to reduce Lafarge's attitude during the meeting in question to the purely passive role of a recipient of the information which Buzzi unilaterally decided to pass on to it, without any request by Lafarge.

1850. It may be inferred therefrom that the contacts between Lafarge and Buzzi were motivated by the element of reciprocity essential to a finding of concerted practice. Accordingly, the applicants' arguments must be rejected.

1851. Thirdly, Buzzi denies the existence of an anti-competitive concerted practice claiming, first, that the views which it expressed to Lafarge during the meeting in question only concerned present and past circumstances, rather than anticipating future actions, and, secondly, that it had not given any undertaking to Lafarge as to its future conduct on the market in the Côte d'Azur.

1852. The Court points out in this regard that any direct or indirect contact between economic operators of such a nature as to disclose to 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, constitutes a concerted practice prohibited by Article 85 (1) of the Treaty (see most recently the judgments of the Court of Justice in Commission v Anic, cited in paragraph 270 above, paragraph 117, and Hüls v Commission, cited in paragraph 155 above, paragraph 160). In order to prove that there has been a concerted practice, it is not therefore necessary to show that the competitor in question has formally undertaken, in respect of one or several others, to adopt a particular course of conduct or that the competitors have colluded over their future conduct on the market (Opinion of Advocate General Darmon in Woodpulp II, cited at paragraph 697 above, point 172). It is sufficient that, by its statement of intention, the competitor should have eliminated or, at the very least, substantially reduced uncertainty as to the conduct to expect of the other on the market (Case T-4-89 BASF v Commission [1991] ECR II-1523, paragraph 242; and Hercules Chemicals v Commission, cited at paragraph 140 above, paragraph 260). However, in the present case, Buzzi, after acknowledging, at its meeting with Lafarge on 26 November 1988, that the market belonged to Lafarge, told it that it had no desire to enter Côte d'Azur to upset a market in which it had had only had two or three customers in the last 20 years, that war was pointless, and that it was necessary to make arrangements to avoid conflicts. By doing so, it gave Lafarge an assurance, with an anti-competitive intent, as to the in this case peaceful attitude which the latter could count on as regards the market in the south of France.

1853. Fourthly, Lafarge and Buzzi criticise the Commission for not having analysed their meeting of 26 November 1988 in its economic context. They complain first of all that it misjudged the geography (the natural obstacle of the Alps) and road conditions (poor quality of the road and motorway infrastructure) of the Franco-Italian border area. Buzzi observes in particular that the Commission states at recital 11, paragraph 5, of the contested decision that 'natural obstacles such as mountains do not form any impediment to cement supplies ... [since] the Italian producers are able to carry out supplies across the Alps in Switzerland, whereas the deliveries in question were restricted to the canton of Tessin which, for a transporter coming from Italy, is situated before the Alps. The applicants, in particular Buzzi (see annexes 18 to 29 to its application), also stress a whole series of factors which explain, in their view, why the market in the Franco-Italian border area was not in fact amenable, at least during the period under consideration in the contested decision, to cross-border transportation of cement and, therefore, that they were not at that time actual or potential competitors in the south of France market: geographical location of their respective production sites; Italian price levels; transport and customs conditions and costs; strike-related difficulties; delivery and transport time restrictions in force in the building sector; specific conditions placed on the use of cement in the context of tenders in the French public sector as well as numerous private projects; natural preference of French consumers for local producers etc. The applicants claim that, during the meeting of 26 November 1988, Buzzi merely drew attention to those objective economic limits to export activities on the Franco-Italian border market.

1854. However, the record of the 26 November 1988 meeting does not contain any reference to the various factors put forward by the applicants seeking to explain the real reasons and significance of the remarks made by Buzzi to Lafarge. On the contrary, statements such as 'a war is pointless or 'agreements must be concluded to avoid conflict undermine the analysis defended by the applicants. They make it clear that the difficulties and obstacles of all kinds put forward by them did not prevent a certain level of interpenetration of French and Italian border markets. According to the record of the meeting, Buzzi had furthermore stated that it had had two or three customers in the last 20 years in the Côte d'Azur market. During the administrative procedure, it stated that 'despite a number of obstacles which it had [had] to overcome (transport costs, customs, difference in the quality of Italian and French cement), and although it could have sold its products on closer and more profitable markets, it [had] been exporting worthwhile quantities (interessanti quantità) of cement to the south of France and, 'at prices lower than those charged by French producers (paragraph 4.3 of Buzzi's reply to the SO; contested decision, recital 20, paragraph 7). Lafarge and Buzzi were thus competitors, at least potentially, on the south of France market.

1855. The Commission was therefore right to see in the meeting of 26 November 1988 on the south of France market 'a statement of intent to share the Côte d'Azur (contested decision, recital 20, paragraph 3), that is, in short, a concerted practice between Lafarge and Buzzi intended to 'to restrict their autonomy of behaviour and, in particular, Buzzi's autonomy of behaviour and, ultimately, to share the market in the south of France (contested decision, recital 48, paragraph 3).

1856. In those circumstances, the explanations proffered by the applicants, based on all kinds of limitations affecting cross-border trade between the south of France and the north of Italy, are all the more such as to underline the seriousness of the infringement of which they are accused, inasmuch as, by their concerted action, they sought to eliminate or, at least, restrict the little actual competition which might exist on the market.

1857. Fifthly, Lafarge and Buzzi claim that the legitimate purpose of their meeting of 26 November 1988 was discussion of a joint industrial project in the region in question, a project that never came to fruition.

1858. Although it is perfectly conceivable that, during their meeting of 26 November 1988, Lafarge and Buzzi discussed a joint industrial project, the fact remains that, on that occasion, Buzzi told Lafarge that the south of France market belonged to Lafarge, that it had no desire to enter Côte d'Azur to upset the market, that war was pointless, and that agreements should be concluded to avoid conflict. The applicants' argument cannot therefore hide the reality of the unlawful collusion at the meeting of 26 November 1988 regarding the sharing of the market in the south of France.

1859. Sixthly, Buzzi claims that, although the effect of its statements could have been to guarantee to its French competitors a sharing of the south of France market, it would have been illogical for those selfsame competitors to have then spent considerable sums in order to acquire a number of its customers in that region.

1860. The Court points out in that respect that during the meeting of 26 November 1988 Buzzi indicated to Lafarge that it had had two or three customers in the last 20 years in Côte d'Azur and that that did not elicit any obvious reaction or objection on the part of the latter. The concerted action in relation to the south of France market did not therefore rule out Buzzi's keeping the 'two or three isolated accounts which it had long maintained with a number of customers in that region, since those few commercial links did not appear to be such as to upset the Côte d'Azur market. The fact that the French producers should have subsequently decided to acquire part of Buzzi's customer base in that market is therefore not inconsistent with the existence of an unlawful concerted action between Lafarge and Buzzi at the end of 1988, as shown by the excerpt from the record of the meeting mentioned by the Commission in recital 20, paragraph 3, of the contested decision

1861. Seventhly, Buzzi states that, despite its alleged undertaking not to become involved in the south of France market, its sales on that market have improved almost consistently, with the exception of those in 1988 (Annex 16 to its application). Supported on that point by Lafarge, it adds that the fall in its sales in France in 1988 can only be explained by the takeover, by certain French producers, of two of its main customers in that region, and not, as maintained by the Commission at recital 20, paragraph 7, of the contested decision, by the existence of a concerted action with the French producers, and in particular with Lafarge.

1862. The Court points out that the information provided by Buzzi to illustrate the consistent improvement in its sales until 1987 on the south of France market is irrelevant as a challenge to the infringement as found, since it is accused of having participated in an unlawful concerted practice with Lafarge only since 26 November 1988. 1863. As to the fall in Buzzi's sales in France in 1988, although it is conceivable that it may be linked, at least in part, to the loss of two important customers in the region of the south of France, those explanations do not make it possible to disregard the statements of intention made by Buzzi to Lafarge on 26 November 1988. 1864. Eighthly, Lafarge and Buzzi allege that the Commission has not proved that the alleged concerted action influenced their subsequent conduct, by leading them to aligning their respective policies on the market in question, or, at least, that the concerted action had such potential. Buzzi adds that, in any event, such influence was inconceivable, regard being had to the nature of the Franco-Italian border market.

1865. However, although, as is clear from the very terms of Article 85 (1) of the Treaty, a concerted practice implies, besides undertakings' concerting together, conduct on the market pursuant to those collusive practices, and a relationship of cause and effect between the two, it must be held, subject to proof to the contrary, which the parties concerned must adduce, that the concerted action in question influenced the parties' conduct on the market (Commission v Anic, cited in paragraph 270 above, paragraph 118 and 121, and Hüls v Commission, cited in paragraph 155 above, paragraphs 161 and 162).

1866. Lafarge states specifically that, after the meeting of 26 November 1988, Buzzi continued to supply its customers in the south of France.

1867. However, the Court points out that, during that meeting, Buzzi told Lafarge that it had had two or three customers in the last 20 years on the Côte d'Azur market. Lafarge expressed no objection, in that respect, obviously considering that that situation was not such as to upset that market. In such a context, the evidence invoked by Lafarge does not prove that the collusion between Buzzi and it on 26 November 1988 did not influence their conduct on the market.

1868. It follows from all the foregoing that the Commission was justified in concluding in Article 3 (1) (a) of the contested decision that there was an anti-competitive concerted practice between Lafarge and Buzzi involving 'the sharing of the market of the south of France. Such a concerted practice is manifestly contrary to Article 85 (1) (c) of the Treaty, which expressly prohibits all agreements and concerted practices 'which share markets.

D Duration of the infringement

1869. The Commission takes the view that the concerted practice found in Article 3 (1) (a) of the contested decision lasted from 26 November to 31 December 1988. 1870. First of all, Buzzi claims that the Commission found that the infringement began in May 1983. 1871. In actual fact, as has been pointed out above (paragraph 1869), the contested decision cites 26 November 1988 as the starting point for the concerted practice. Buzzi's argument is thus unfounded.

1872. Secondly, Buzzi states that, until 26 November 1988 there had been a 'state of war on the south of France market and that there was no 'agreement ... to avoid conflicts, in view of the record of the meeting held on that date.

1873. However, the fact that Lafarge and Buzzi agreed during that meeting that war was pointless does not necessarily mean that the parties were at war until then on the south of France market. Such a statement could just as well indicate their intention not to engage in warfare. In any event, there was held to be a concerted practice between Lafarge and Buzzi only as from 26 November 1988. The Commission has therefore not claimed that concerted action between the two parties, based on agreements intended to avoid 'war or 'conflicts, existed already before that date.

1874. Thirdly, Buzzi states that the Commission, without giving reasons, set 31 December 1988 as the date on which the concerted practice at issue was brought to an end, even though it acknowledged (contested decision, recital 48, paragraph 7) that it did not have any specific information in that regard.

1875. At recital 48, paragraph 7, of the contested decision the Commission explains that '[i]n the absence of any other precise indications of when the infringement ended, [it] considers that it lasted at least until the end of 1988, since the last concerted action with Lafarge dates from 26 November 1988 and involved Buzzi's revealing to Lafarge its future conduct on the market.

1876. On the basis of that factor, and in the absence of evidence to the contrary adduced by the undertakings concerned, the Commission was right to consider that the unlawful concerted action between Lafarge and Buzzi lasted 'at least until the end of 1988. Concerted practice between Ciments Français and Buzzi found in Article 3 (1) (b) of the contested decision

A Introduction

1877. As a basis for its conclusion that the infringement of which it accuses Ciments Français and Buzzi in Article 3 (1) (b) of the contested decision existed (see paragraph 1821 above), the Commission relies on a fax of 17 March 1988 whereby Ciments Français sent Buzzi a list of its prices applicable from 2 March 1987 together with the following covering note: 'In reply to your telex of today, herewith our ex-works prices for sacked and bulk cement. Price increase timetable has not been decided as yet. An average increase of 1% to 1.5% in the current year is envisaged (contested decision, recital 20, paragraph 4; documents 33.126-11982 to 11987). The Commission takes the view that the 'reason why Ciments Français communicated its price list and forecast price increases ... was so that Buzzi could align its cement prices in France on Ciments Français ... prices (contested decision, recital 20, paragraph 6). It concludes that 'the transmission by Ciments Français to Buzzi on 17 March 1988, at Buzzi's request, of the price list of the Beaucaire factory and of the forecast average increase for the year constitutes a concerted practice, covered by Article 85 (1) (contested decision, recital 48, paragraph 4), given that 'any communication to a competitor of the conduct which it is planned to adopt on the market, such as to enable an influence to be exerted on the competitive conduct of such competitor, constitutes an infringement of Article 85 (1) (contested decision, recital 48, paragraph 5, last indent).

B Whether there was an anti-competitive concerted practice between Ciments Français and Buzzi

1878. Ciments Français complains that the Commission committed an error of fact in its description, in recital 20, paragraph 1, of the contested decision, of the location of plant on either side of the Franco-Italian border belonging to the four undertakings mentioned in Article 3 (1) of the contested decision, inasmuch as it placed its Ranville plant at Bouches-du-Rhône, whereas Ranville is in Normandy.

1879. However, that error which the Commission acknowledges (defence in Case T-39-95, p. 30) has no consequences. As pointed out above (see paragraph 1877), the Commission, in its legal assessment in recital 48, paragraph 4, of the contested decision, merely objects to the disclosure made by Ciments Français to Buzzi of its Beaucaire price list and the provision of the forecast average increase for the year.

1880. Buzzi, for its part, complains that the Commission infringed the requirements laid down in the case-law with regard to the burden of proof by basing its finding of an infringement on a single fax of 17 March 1988 by which Ciments Français had transmitted its price list to it.

1881. It has already been stated in that respect (see paragraph 1838 above) that there is no principle of Community law which precludes the Commission from relying on a single piece of evidence in order to conclude that Article 85 (1) of the Treaty has been infringed, provided that its evidential value is undoubted and that the evidence itself definitely attests to the existence of the infringement in question. Since Buzzi has not adduced any evidence to refute the evidential value of the document cited at recital 20, paragraph 4, of the contested decision, it must be concluded here that the Commission was right to base itself on that document in order to prove the existence of the unlawful concerted action of which it accuses Ciments Français and Buzzi. That does not, however, prejudge the question examined below in paragraphs 1883 to 1921 whether the document in question proves, by itself, that the said infringement existed.

1882. Next, Ciments Français and Buzzi set out in substance nine arguments challenging the existence of the anti-competitive concerted practice alleged against them.

1883. First of all, as has already been stated above (paragraph 1844), Buzzi disputes the Commission's statement that 'in the period in question, the prices charged by Italian producers were roughly 20% lower than prices charged by French producers (paragraph 20 (2) of the contested decision). It maintains that the prices charged by Italian producers were always, apart from those for 1988, higher than those charged by French producers during that period.

1884. The Court points out that the information provided by the Italian cement industry during the hearing of 2 March 1993 shows that French prices were, on average, always 20% higher than Italian prices during the period 1981 to 1991 (contested decision, recital 9, paragraph 6, and the tables in annexes 9-3 and 9-4).

1885. In any event, Buzzi's criticisms, which amount to a challenge of the Commission's analysis in respect of the period prior to that under consideration in respect of the infringement at issue, cannot obscure the fact that on 17 March 1988 Ciments Français sent it, at Buzzi's request, its price list and forecast average increase for the year (contested decision, recital 20, paragraph 4; documents 33.126-11982 to 11987).

1886. Secondly, Buzzi maintains that the Commission, by merely stating that there was a unilateral flow of information coming out of Ciments Français, has not proved that there was the element of reciprocity essential to a finding of a concerted practice.

1887. That argument must be rejected. As has been pointed out above (paragraph 1849), the condition of reciprocity, which is necessary for a finding of concerted practice, is met where it appears that one competitor discloses information relating to its conduct on the market at the request of another competitor. The very wording of the fax referred to in recital 20, paragraph 4, of the contested decision makes it clear that the price list was transmitted by Ciments Français to Buzzi 'in reply to [the] telex of today (document 33.126-11983), that is, as the Commission rightly observes (contested decision, recital 48, paragraph 4), 'at Buzzi's request. The element of reciprocity is thus established in the present case.

1888. Thirdly, Ciments Français submits that, for various reasons to do, in particular, with the high cost of transport over the border between Italy and France, and the absence of overlap between their respective natural markets, Buzzi and itself are not actual or potential competitors. It criticises the Commission in this regard for having taken a distance considerably less than the actual distance by road or motorway as the distance separating the nearest Buzzi factory from its own (contested decision, recital 48, paragraph 5). It enclosed with its application (annexes 4 and 5) surveys carried out under the supervision of a bailiff's official, stating the actual duration and distance of a journey made under its orders by a cement lorry departing from a factory near that of Buzzi in Italy to Nîmes, at the heart of the market for Ciments Français' Beaucaire factory in southwest France. According to Ciments Français, the influence of those two factors makes that type of delivery impracticable. Ciments Français concludes that the exchange of information between Buzzi and itself did not have as its object or effect the restriction of competition within the meaning of Article 85 (1) of the Treaty, since the prime condition for such concerted practice, namely the existence of competition between the parties concerned, was absent.

1889. For its part, Buzzi again criticises the Commission for not having carried out an economic analysis of the Franco-Italian border market, emphasising the various reasons which explain, in its view, that that market was not amenable to the cross-border transportation of cement (see paragraph 1853 above).

1890. That argument cannot be accepted. As the Commission rightly pointed out, 'the ... fact is that Buzzi exports to France (contested decision, recital 48, paragraph 5). Buzzi stated during the administrative procedure that, 'despite a number of obstacles which it had to overcome (transport costs, customs, difference in the quality of Italian and French cement), and although it could have sold its products on closer and more profitable markets, it has been exporting worthwhile quantities (interessanti quantità) of cement to the south of France since the end of the 1960s (point 4.3 of Buzzi's reply to the SO; contested decision, recital 20, paragraph 7).

1891. Since there is no doubt that Buzzi exported to the south of France market, the Commission was entitled to consider that Ciments Français, which owns a production plant on that market, at Beaucaire (contested decision, recital 20, paragraph 1), and Buzzi were 'actual or, at the very least, potential competitors (contested decision, recital 48, paragraph 5).

1892. Fourthly, Ciments Français and Buzzi deny that the transmission of price lists, such as those in the fax of 17 March 1988, could have served an anti-competitive purpose. They put forward a series of arguments centred on the nature of the information communicated by that fax. Ciments Français maintains that that information had already been made public, first, through the specialist press and the economic press in general and, secondly, as a result of an obligation imposed by French Order 86-1243 of 1 December 1986 concerning freedom of pricing and competition. Buzzi claims that the document transmitted to it by Ciments Français concerned official prices set by the French State and easily available to any interested party and that the increase forecasts could be calculated on the basis of an analysis of the economic indicators taken into account by the public authorities when dealing with applications for increases. Transmission of that information by Ciments Français was a matter of simple commercial courtesy. The applicants state that the prices which had been forwarded had been in force for more than a year (from the beginning of March 1987) and that they were about to be changed, so that they were of purely historical value, making it possible at most to shed light on Ciments Français' past conduct but not to predict its future conduct. The price rise forecast for the year was given as a purely approximate range and in any event subsequently proved incorrect (2.5% instead of the 1 to 1.5% initially announced by Ciments Français). Furthermore, the information mentioned neither the type of cement nor the region concerned by the envisaged price increase. Buzzi further states that the information sent to it merely gave indications as to prices but no other information, such as Ciments Français' share of the market or the level of sales in the region in question.

1893. Such an argument must be rejected. The obligation of transparency required, in particular in relation to prices, of French producers by Order 86-1243 of 1 December 1986, cited above, applies only to 'purchaser(s) of the product (Article 33 of that Order), which was not Buzzi's position in this case. Moreover, it is clear from the fax of 17 March 1988 that the information sent by Ciments Français to Buzzi related not to the official price list, but to '(its) ex-works prices for sacked and bulk cement, including those of the factory located in the Beaucaire region, Ciments Français' natural market in the south of France (contested decision, recital 20, paragraph 4; documents 33.126-11983, 11985 and 11987). Although the prices in question had already been in force for more than a year and liable to be amended at any time, the fact remains that these were prices which were (still) in force at that time. Far from being of merely historical or statistical interest, the information which Ciments Français sent to Buzzi was thus of 'current value (contested decision, recital 48, paragraph 5). It is true that Buzzi could have obtained those prices from Ciments Français' customers. Nevertheless, it requested them of Ciments Français, which sent them to it that same day.

1894. As regards the indication as to the price rise envisaged for the year, Buzzi cannot reasonably defend the view that that information could be easily calculated on the basis of a simple analysis of the economic indicators taken into account by the State, since State control of cement prices had been abolished in France since 1986 (contested decision, recital 16, paragraph 12). In actual fact, that information was commercially confidential and thus particularly sensitive.

1895. The applicants thus took part, through that transmission of information, in a concerted practice prohibited by Article 85 (1) of the Treaty within the meaning of the case-law cited in paragraph 1852 above.

1896. By sending to Buzzi, at Buzzi's request, its sales prices in force and the forecast increase for the year, Ciments Français revealed both its current and future commercial conduct, eliminating or, at the very least, substantially reducing in advance any uncertainty as to its pricing policy, in particular on the south of France market.

1897. The fact that the information thus sent only concerned prices and not any other commercial information does not mitigate the infringement constituted by the sending of the information.

1898. Even though the price increase announced by Ciments Français eventually proved inaccurate, communication of that forecast, as the Commission rightly points out, enabled Buzzi 'to plan its pricing policy with a great degree of certainty even after the price changes forecast (contested decision, recital 48, paragraph 5).

1899. Fifthly, Ciments Français complains that the Commission engaged in an artificial terminological manipulation of the fax of 17 March 1988 by taking the statement that 'an average increase of 1% to 1.5% in the current year is envisaged (contested decision, recital 20, paragraph 4; document 33.126-11983) as proof of disclosure, by Ciments Français, of a 'forecast ... increase of its prices (contested decision, recital 48, paragraph 4). According to the applicant, the Commission thus gave the impression that the price rise had already been firmly and definitively decided.

1900. That argument must be rejected. Recourse to the term 'forecast in place of the term 'envisage cannot be considered to reveal an intention on the part of the Commission to misrepresent the wording of the fax of 17 March 1988. Moreover, nowhere in the contested decision does the Commission present Ciment Français' forecast average price increase for the year as being the result of a firm and definitive decision.

1901. Sixthly, Buzzi claims that the disclosure by Ciments Français of its price list could not have served the anti-competitive purpose claimed for it by the Commission, namely 'so that Buzzi could align its cement prices in France on Ciments Français ... prices (contested decision, recital 20, paragraph 6). The prices actually charged by the French cement producer on the south of France market did not in fact correspond to those appearing in that price list. Buzzi refers, in that respect, to the French price list for 1983 to 1988, set out in annexes 18 to 23 of its application.

1902. That argument must be rejected.

1903. Examination of the information contained in the fax sent by Ciments Français on 17 March 1988 and the indications of the French price for 1987 provided by Buzzi in annex 22 to its application leads to the conclusion that the French price specified by Buzzi for that year was of FRF 365 per tonne, that is to say exactly the same price which Ciments Français had communicated to it on 17 March 1988 in respect of its Beaucaire factory.

1904. When invited to explain itself on that point by a written question put by the Court of First Instance of 27 May 1998, Buzzi replied on 25 June 1998 that the information which it had enclosed in annexes 18 to 23 of its application was intended, in actual fact, to show that the prices which it had itself charged on the south of France market between 1983 and 1988 were largely below those of the French producers and, in particular, of Ciments Français. That argument will be examined in paragraphs 1909 to 1913. 1905. Be that as it may, even if the prices communicated by Ciments Français to Buzzi did not correspond to the prices actually charged by the French producer on the market a price which depends on a number of additional parameters which vary case by case the price specifications set out in the fax in question were such as to enable Buzzi to 'align its cement prices in France on Ciments Français ... prices (contested decision, recital 20, paragraph 6) by raising those export prices to a level likely to dissuade actual or potential Ciments Français customers from importing its products into the south of France and-or by passing on to its own customers in that region the changes in 'local prices, in this case those of Ciments Français, in order not to upset the natural market of that producer. Knowledge of the price list applied by a competitor at a given time, as well as the price increase envisaged by it for the year, enables an operator particularly where, as in the present case, that information includes a precise indication of the VAT rate in force (see documents 33.126-11984 to 11987) to adjust its own prices accordingly, without it being necessary to have available the exact actual prices which vary according to the customer charged by that competitor on the market.

1906. Seventhly, Buzzi considers that, if, as the Commission claims, 'the lower prices [were] justified by the fact that the Portland cements sold by Buzzi in France (grades 325 and 425) have lower resistance grades than the corresponding cements manufactured and sold by the French producers (grades 350 and 450) (contested decision, recital 20, paragraph 7), Buzzi cannot be criticised for having acted on the basis of the price list which had been sent by Ciments Français on 17 March 1988, since that list concerned products of a type different from those which it marketed.

1907. The Court points out that, in its application (p. 20), Buzzi contests precisely the explanation put forward by the Commission at recital 20, paragraph 7, of the contested decision (see the preceding paragraph), stating that the products which it sold in France were identical in quality to French cement and that, in the eyes of customers, they were thus entirely interchangeable and competitive as between them.

1908. In any event, whatever the degree of comparability, in terms of quality and resistance, between products manufactured by Buzzi and French cement, it is nevertheless the case that on 17 March 1988 Buzzi asked Ciments Français for its price list, which the latter hurried to transmit to it that same day, informing it also of the forecast price increase for the year. In the absence of any persuasive alternative explanation to justify that transmission of information, and regard being had to what has been set out at paragraph 1905 above, the Commission was right to consider that the 'reason why Ciments Français communicated its price-list and forecast price increases ... was so that Buzzi could align its cement prices in France on Ciments Français ... prices (contested decision, recital 20, paragraph 6). It was therefore entitled to conclude that the bilateral contact, which had the object of bringing about competitive conditions that did not correspond to the normal market conditions, was unlawful (see, to that effect, the case-law cited in paragraph 1852 above).

1909. Eighthly, Buzzi maintains that, both before and after communication of the price list by Ciments Français, it constantly charged prices in that region which were significantly lower than those of the French producers, in particular of Ciments Français. It refers in that respect to annexes 18 to 23 to its application, in which it compares French and Italian prices during the period 1983 to 1988. In reply to a written question put by the Court of First Instance on 27 May 1998, it also provided, on 25 June 1998, copies of the invoices relating to sales in the south of France, to which it referred in its application (p. 41, paragraph 11) in order to support its arguments on that point. Those invoices confirm that, in fact, Buzzi's prices for certain customers in the south of France between February 1987 and December 1988 were constantly lower (FRF 290 to 300 per tonne) than those specified by Ciments Français for its Beaucaire factory (FRF 365 per tonne) in its fax of 17 March 1988 (contested decision, recital 20, paragraph 4; documents 33.126-11982 to 11987). As indicated above (paragraph 1907), Buzzi dismisses the explanation put forward by the Commission in recital 20, paragraph 7, of the contested decision to justify its lower prices for sales in France than those of French producers.

1910. It should be pointed out in that regard that although, as is clear from the very terms of Article 85 (1) of the Treaty, a concerted practice implies, besides undertakings' concerting together, conduct on the market pursuant to those collusive practices, and a relationship of cause and effect between the two, it must be held that, subject to proof to the contrary, which the parties concerned must adduce, undertakings participating in the concerted action and which remain active on the market take into account the information exchanged with their competitors in determining their conduct on that market (Commission v Anic, cited in paragraph 270 above, paragraphs 118 and 121, and Hüls v Commission, cited in paragraph 155 above, paragraphs 161 and 162).

1911. It is appropriate to bear in mind that Buzzi has never denied having had, during the period under consideration in the contested decision, a number of customers in the south of France, more specifically in the Côte d'Azur market. It did not, however, intend to wage 'war there against the French producers (see the record of the meeting of 26 November 1988 between Lafarge and Buzzi; contested decision, recital 20, paragraph 3; document 33.126-6857 bis). It was thus perfectly able to follow an independent commercial policy with regard to those customers, which, according to the information it provided at the hearing, was essentially the fruit of personal contacts of the Buzzi brothers, while taking into account the information on prices communicated by Ciments Français in its fax of 17 March 1988, in order to respond to possible requests for exports coming from actual or potential customers of the French producer in the south of France region.

1912. It should be pointed out moreover that the Commission does not claim at all in the contested decision that the communication by Ciments Français of its price list to Buzzi led Buzzi to apply prices identical to those of the French producer. At the very most, it claims that the 'reason why Ciments Français communicated its price list and forecast price increases ... was so that Buzzi could align its cement prices in France on Ciments Français ... prices (contested decision, recital 20, paragraph 6). The fact that Buzzi's prices in the south of France were in actual fact lower than those which had been communicated to it by Ciments Français does not make it inconceivable that the Italian undertaking, despite everything, allowed the information which had been provided to it on 17 March 1988 to influence its export prices.

1913. In conclusion, Buzzi's submissions set out in paragraph 1909 above do not prove that the information which it had obtained, at its request, from Ciments Français had no impact on its conduct on the market.

1914. Ninthly, Buzzi refers to the takeover by the French producers of a number of its French customers.

1915. However, such a circumstance does not hide the fact of unlawful concerted action between Ciments Français and it, when Ciments Français sent to Buzzi, at Buzzi's request, its price list and details of the increase envisaged for 1988. 1916. It follows from all the foregoing that the Commission was justified in concluding that there was a concerted practice as stated in Article 3 (1) (b) of the contested decision.

C Duration of the infringement

1917. The Commission considers that the concerted practice which it finds in Article 3 (1) (b) of the contested decision lasted from 17 March to 31 December 1988. 1918. First, Ciments Français claims that it did not have an opportunity to express its views during the administrative procedure regarding the date on which the infringement in question ceased, as that date was not mentioned in the SO.

1919. In this connection, the Court points out that, at point 61 (b) of the SO, dedicated to the legal assessment of the facts relating to the Franco-Italian agreement or concerted practice, the Commission considered that 'the exchanges of price lists between the French producers Lafarge, Ciments Français and Vicat and the Italian producer Buzzi [constituted] concerted practices restricting competition within the meaning of Article 85 (1) [of the Treaty] from at least 1983 to 1988 (SO, p. 173). Ciments Français must have realised, on reading that passage of the SO, that the Commission intended to complain that it had allegedly participated in a concerted practice with Buzzi until at least the end of 1988. Its argument alleging lack of consistency between the SO and the contested decision must therefore be rejected.

1920. Second, Ciments Français observes that the exchange of information of which it is accused consisted of no more than the sending of a single fax to Buzzi on 17 March 1988 (contested decision, recital 20, paragraph 4; documents 33.126-11982 to 11987). Like Buzzi, it challenges the Commission's right to base itself, at recital 48, paragraph 7, of the contested decision, on the concerted action between Lafarge and Buzzi in order to extend until 31 December 1988 the duration of the infringement of which it is accused, where it has not been proved that the various contacts between Buzzi and the French producers had arisen from a single infringement. Buzzi also complains that the Commission determined the duration of its unlawful concerted action with Ciments Français without providing a specific reason. It stresses that the price list which had been sent to it on 17 March 1988 by Ciments Français was no longer in force on 1 September 1988, that is to say, four months before the date fixed in the contested decision for the end of the infringement.

1921. It must however be observed that, by informing Buzzi on 17 March 1988, at the latter's request, of its prices in force, and of the forecast price increase 'for the current year, Ciments Français offered it a reasonable degree of certainty as to its commercial conduct, in terms of prices, for the whole of 1988. The unlawful concerted action was thus likely to be of benefit to the participants until the end of 1988. The Commission was therefore entitled to find that the infringement had lasted from 17 March to 31 December 1988. Concerted practice between Vicat and Buzzi found in Article 3 (1) (c) of the contested decision

A Introduction

1922. In concluding that the infringement of which it accuses Vicat and Buzzi in Article 3 (1) (c) of the contested decision (see paragraph 1822 above) existed, the Commission relies on various telexes concerning exchanges of price lists between the two undertakings during the period from 11 to 16 May 1983 (contested decision, recital 20, paragraph 5; documents 33.126-11974, 11973 and 11975 to 11977). It also relies on a telex of 23 April 1986 sent by Buzzi to Vicat. In that telex, Buzzi stated as follows to Vicat: 'We have received requests to supply cement not only from Nice but also Toulon. We replied in the negative to all such requests and intend to continue so doing. We have learnt that your prices rose recently. Please inform us: ex-works prices for bulk and sacked goods, the percentage increase, and if other price increases are planned for this year. Our prices from March 1986 are: .... The percentage increase was around 4.5%. We anticipate-hope for another increase in September of 3% (contested decision, recital 20, paragraph 5; document 33.126-6144). The Commission bases itself finally on a document relating to Vicat's list of prices applicable from 1 July 1986, allegedly sent by that company to Buzzi, at the top of which appears the following handwritten note in Italian: '+ 6.3% for bulk compared with March 1986; + 18.79 for sacked (contested decision, recital 20, paragraph 5; document 33.126-11971).

1923. The Commission considers that the reason why 'Vicat sent its price list was so that Buzzi could align its cement prices in France on ... Vicat prices and that 'the fact that Buzzi informed Vicat both of its refusal to fill cement orders from the south of France and that it intended to continue doing so [constituted] sharing the south of France market (contested decision, recital 20, paragraph 6). At recital 48, paragraph 6, of the contested decision, the Commission finds in the following terms that there was a concerted practice between Vicat and Buzzi, contrary to Article 85 (1) of the Treaty: '... on the one hand, Buzzi reassured Vicat of its desire not to disrupt the market in the south of France, and, on the other, through the exchanges of price lists and the notification of price increases, Vicat and Buzzi endeavoured to establish a reasonable degree of certainty that any exports which continued to take place would be carried out on the basis of a pricing policy comparable to that of Vicat. By these means, they eliminated a large part of the normal risk inherent in any autonomous change in market behaviour (contested decision, recital 48, paragraph 6, last subparagraph).

B Existence of an anti-competitive concerted practice between Vicat and Buzzi

1924. Buzzi states that, according to the Commission, its statements to Vicat, according to which it intended to reply in the negative to all requests for cement coming from Nice and Toulon, constituted 'sharing the south of France market (contested decision, recital 20, paragraph 6) or reflected its 'desire not to disrupt the market in the south of France (contested decision, recital 48, paragraph 6). Buzzi states, however, that neither it nor Vicat were censured on that ground in Article 3 (1) (c) of the contested decision. It also states that the Commission did not find it was unlawful to send to Vicat on 23 April 1986 a forecast of price increases (contested decision, recital 20, paragraph 5; document 33.126-6144), even though it found the transmission of the same type of information to it on 17 March 1998 by Ciments Français to be unlawful (contested decision, recitals 20, paragraph 4, and 48, paragraphs 4 and 5, and Article 3 (1) (b); documents 33.126-11982 to 11987).

1925. It is true that in Article 3 (1) (c) of the contested decision the Commission does not expressly charge either Vicat or Buzzi with having participated in a concerted practice consisting in sharing the south of France market, unlike as alleged in Article 3 (1) (a) of the contested decision against Lafarge and Buzzi, or with having exchanged information relating to forecast price increases, unlike the complaint it makes in Article 3 (1) (b) of the contested decision against Ciments Français and Buzzi.

1926. In its legal assessment of the facts set out in recital 20, paragraph 5, of the contested decision, which leads it to conclude in Article 3 (1) (c) that there was a concerted practice between Vicat and Buzzi 'involving the exchange of price information with a view to the restriction of their autonomy of conduct as regards cement supplies in southern France, the Commission gives its reasons for finding such an infringement in the following terms: 'The exchange of price lists which took place on 11-16 May 1983 and April and July 1986, and Buzzi's communication to Vicat on 23 April 1986 of its intention not to accept orders from Nice and Toulon constitute a concerted practice, covered by Article 85 (1). Even if the price lists can be obtained through customers, the procedure is more complicated and more time-consuming. Furthermore, the exchanges related not only to the price lists, but also, on one occasion, to the forecasts of price increases. Through this concerted practice, on the one hand Buzzi reassured Vicat of its desire not to disrupt the market in the south of France, and, on the other, through the exchanges of price lists and the notification of price increases, Vicat and Buzzi endeavoured to establish a reasonable degree of certainty that any exports which continued to take place would be carried out on the basis of a pricing policy comparable to that of Vicat. By these means, they eliminated a large part of the normal risk inherent in any autonomous change in market behaviour (contested decision, recital 48, paragraph 6).

1927. That analysis shows that, in finding that there was a concerted practice between Vicat and Buzzi, the Commission sought to object to the exchanges of prices and forecast price increases between those two undertakings, inasmuch as the purpose of those exchanges was to restrict their autonomy of behaviour, in particular that of Buzzi, by enabling the latter to apply with regard to the south of France market an export pricing policy comparable to the pricing policy followed by Vicat in order not to disrupt that market, in accordance with the intentions expressed by Buzzi in its telex to Vicat of 23 April 1986. Consequently, even if Article 3 (1) (c) of the contested decision does not expressly allege that Vicat and Buzzi participated in a concerted practice to share the south of France market, it is nevertheless the case that, according to the Commission, the information exchanges objected to were designed to avoid disturbing the market in question.

1928. Next, Vicat and Buzzi put forward essentially 10 arguments denying the existence of the anti-competitive concerted practice of which they are accused.

1929. Firstly, Buzzi claims, as has been stated above (see paragraphs 1844 and 1883), that the Commission committed a manifest error of assessment in stating, at recital 20, paragraph 2, of the contested decision, that 'in the period in question, the prices charged by Italian producers were roughly 20% lower than prices charged by French producers. It submits that the prices charged by Italian producers were always, apart from those for 1988, higher than those charged by French producers, as shown by a comparison between its own Cement 425 prices and those charged by Vicat for CPJ 45 cement (Annex 17 to its application).

1930. It should be recalled once more that the figures produced by the Italian cement industry at the hearing of 2 March 1993 show, for their part, that the French prices were, on average, always 20% higher than the Italian prices during the period 1981 to 1991 (contested decision, recital 9, paragraph 6, and the tables in Annexes 9-3 and 9-4). In any event, on 23 April 1986 Buzzi told Vicat that it had received requests to supply cement not only from Nice but also Toulon which serves to illustrate the attractiveness of the Italian prices and thus to bolster the Commission's argument but that it had replied in the negative to all of them and intended to continue so doing (contested decision, recital 20, paragraph 5; document 33.126-6144).

1931. Secondly, Buzzi submits that there is nothing to prove that the document containing Vicat's price list effective as from 1 July 1986 (contested decision, recital 20, paragraph 5; document 33.126-11971) was sent to it by Vicat.

1932. It must be accepted that although the document in question was found on Buzzi's premises, with handwritten notes in Italian at the top of the page, there is no proof that it was sent by Vicat to Buzzi. Buzzi could have obtained it from one of Vicat's customers, to which no objection can be made. In those circumstances, the Commission has not shown that the abovementioned document was part of exchanges between Vicat and Buzzi. It follows that it cannot be taken into account as evidence of the concerted practice at issue.

1933. Thirdly, Vicat complains that the Commission arrived at the conclusion that its contacts with Buzzi were unlawful on the ground that they were the result of the Cembureau agreement to ensure non-transhipment to domestic markets, mentioned in Article 1 of the contested decision.

1934. That argument must be rejected. It is clear from recital 48, paragraph 6, of the contested decision that in the Commission's legal assessment of relations between Vicat and Buzzi, the Commission relied solely on the evidence referred to in the abovementioned recital 20, paragraph 5, in order to conclude that they were unlawful and made no reference whatsoever to the Cembureau agreement.

1935. Fourthly, both applicants deny that the communications complained of had an anti-competitive purpose, raising a number of arguments based on the nature of the information exchanged. Vicat submits that, because of the price-control regime which existed in France until 1986, the prices which it transmitted to Buzzi gave no indication as to its commercial policy (rebates, conditions for payment ...). It relies, furthermore, in support of its argument, on the judgments in Fiatagri and New Holland Ford v Commission, cited in paragraph 1680 above, paragraph 91, and Deere v Commission, cited at paragraph 420 above, paragraph 81. Buzzi claims, for its part, that all the prices exchanged were available to the public. The applicants add that, contrary to what the case-law requires before it can be concluded that there has been an unlawful concerted practice, the information which they exchanged did not lead to their revealing or influencing their commercial conduct on the market in question.

1936. The Court finds that the price lists exchanged between Vicat and Buzzi, referred to in recital 20, paragraph 5, of the contested decision, mostly concerned prices in force and therefore up to date. Although it was possible for the parties to obtain those price lists through customers, the fact remains that 'the procedure is more complicated and more time-consuming (contested decision, recital 48, paragraph 6), and the parties preferred to go directly to each other in order to obtain them. Moreover, Vicat sent Buzzi on 11 May 1983 a change to forthcoming prices by notifying it of the ex-works prices list for the factory at La Grave de Peille with effect from 1 June 1983 (contested decision, recital 20, paragraph 5; document 33.126-11973). On 23 April 1986 Buzzi even notified Vicat of an anticipated-hoped for 3% increase in September and in turn, asked Vicat to indicate ex-works prices for bulk and sacked goods and the percentage increase, of which it had learnt, and to tell it 'if other price increases are planned for this year (contested decision, recital 20, paragraph 5; document 33.126-6144). Contacts between Vicat and Buzzi thus concerned sensitive and at times even confidential commercial information.

1937. Furthermore, in May 1983 and April 1986, Vicat and Buzzi sent each other their respective ex-works prices for bulk and sacked cement and, on one occasion, a forecast price increase. On 23 April 1986, Buzzi further informed Vicat that it had refused requests to supply cement from Nice and Toulon and that it intended to continue so doing. By doing so, the two applicants revealed their current and future conduct on the market, thus eliminating or, at the very least, substantially reducing the uncertainty as to their respective policies on the said market. In the light of the case-law cited at paragraph 1852 above, the Commission was therefore right to consider that, by that exchange of information, they had 'eliminated a large part of the normal risk inherent in any autonomous change in market behaviour (contested decision, recital 48, paragraph 6).

1938. Although, as is clear from the very terms of Article 85 (1) of the Treaty, a concerted practice implies, besides undertakings' concerting together, conduct on the market pursuant to those collusive practices, and a relationship of cause and effect between the two, it must be held that subject to proof to the contrary, which the parties concerned must adduce, undertakings participating in the concerted action which remain active on the market take into account the information exchanged with their competitors in determining their conduct on that market (Commission v Anic, cited in paragraph 270 above, paragraphs 118 and 121, and Hüls v Commission, cited in paragraph 155 above, paragraphs 161 and 162). It will be necessary to examine (paragraphs 1952 to 1956 below) whether in the present case the evidence adduced by the parties concerned amounts to such contrary evidence.

1939. Lastly, Vicat cannot rely on the judgments in Fiatagri and New Holland Ford v Commission, cited at paragraph 1680 above, and Deere v Commission, cited at paragraph 420 above. First, the exchange of information referred to in those cases did not involve prices. Secondly, it is clear from the judgment in Fiatagri and New Holland Ford v Commission (paragraph 91) that, for transparency between traders to be considered lawful under Article 85 (1) of the Treaty, it must be likely to lead, on a market that is truly competitive owing to the atomised nature of supply, to the intensification of competition between suppliers, a condition evidently not fulfilled by the exchange of price lists between Vicat and Buzzi, if only because of the relative concentration of supply which characterises the market in question.

1940. Fifthly, Buzzi claims that the Commission contradicts itself when it affirms, first, that the exchanges of price lists and notification on price increases enabled it to develop a commercial policy comparable to that of Vicat on the south of France market, and secondly, that those products did not belong to the same class of resistance as those of the French producers.

1941. It should be borne in mind that Buzzi contests specifically, in its application, the explanation put forward by the Commission at recital 20, paragraph 7, of the contested decision for its prices being lower than those of the French producers, by emphasising that its products were of equivalent quality to those of French cement (see paragraph 1907 above).

1942. In any event, whatever the degree of comparability, in terms of quality and resistance, between the products marketed by Buzzi and the French cement producers, it has been established that Buzzi asked Vicat on various occasions to send it its price list for its factory at La Grave de Peille, together with some indication of any price increases envisaged. In the absence of an alternative persuasive explanation by Buzzi as to the reason for such price list notification, the Commission was justified in considering that 'through the exchanges of price lists and the notification of price increases, Vicat and Buzzi [had] endeavoured to establish a reasonable degree of certainty that any exports which continued to take place would be carried out on the basis of a pricing policy comparable to that of Vicat (contested decision, recital 48, paragraph 6).

1943. Sixthly, Vicat puts forward several alternative justifications for the relations it maintained with Buzzi during the period under consideration. The exchanges of price lists complained of allegedly enabled Buzzi to offer prices lower than its own, which led the Italian company to increase its sales. Vicat thus prevented Buzzi from attempting to encroach on its own client base in the south of France.

1944. That explanation cannot be accepted. An undertaking which seeks to avoid having its customers poached by a competitor would more likely seek to ensure or restore its competitiveness rather than communicate its prices to its competitor in the hope that that information would lead it to losing interest in its own customer base. In actual fact, the explanations put forward by Vicat disclose its anti-competitive intention when it exchanged information, namely to protect its natural market in the south of France.

1945. Vicat further states that, since at the time there was a system of price control in Italy, it considered it lawful that Buzzi should ask it for its price list in order to seek to have the Italian public authorities accept an increase in its prices.

1946. It must however be found that the various documents relating to the exchanges of price lists between Vicat and Buzzi (contested decision, recital 20, paragraph 5; documents 33.126-11974, 11973, 11975 to 11977 and 6144) do not contain the slightest evidence to confirm that affirmation. Moreover, the justification put forward by Vicat does not explain why Vicat itself requested Buzzi's ex-works prices for its Robilante factory on several occasions, (contested decision, recital 20, paragraph 5; documents 33.126-11975 to 11977 and 6144).

1947. Seventhly, Vicat submits that the statement of intention which Buzzi sent to it in the telex of 23 April 1986 (contested decision, recital 20, paragraph 5; document 33.126-6144) was at most, at least in so far as concerned orders from Toulon, technically impossible, given the distance between that region and the Robilante factory. For its part, Buzzi criticises the Commission once again for its failure to analyse the market in question. It informed Vicat of its intention not to accept the orders it received from Nice and from Toulon because of the numerous objective obstacles to export activity in the Franco-Italian border region (see paragraph 1853 above).

1948. It must however be pointed out that the telex of 23 April 1986 does not contain any evidence of such a nature as to support to the explanations which the applicants now put forward. Moreover, the applicants cannot argue that Buzzi's refusal to accept orders from the south of France may be explained by the difficulties and inconveniences relating to Franco-Italian cross-border trade, when Buzzi itself stated, during the administrative procedure, that those various obstacles had not dissuaded it from exporting 'worthwhile quantities of cement to the south of France, moreover 'at prices lower than those charged by French producers (paragraph 4.3 of Buzzi's reply to the SO; contested decision, recital 20, paragraph 7).

1949. Eighthly, Vicat argues that Buzzi's statement to the effect that it would refuse and intended to continue to refuse requests coming from Nice for it to supply cement is inconsistent with the truth, inasmuch as Buzzi has always sold its product in Nice. Furthermore, the report of the meeting of 26 November 1988 between Lafarge and Buzzi (contested decision, recital 20, paragraph 3; document 33.126-6857 bis) itself denies the existence of an agreement over domestic markets, in this case the south of France market, between the Italian undertaking and the French producers, in particular Vicat, in that it records Buzzi's statement that it had had two or three customers in the last 20 years in the south of France.

1950. In that regard, the parties agree that, as is shown by the passage from the record of the meeting of the 26 November 1988 between Lafarge and Buzzi and highlighted by Vicat, Buzzi maintained on the Côte d'Azur market several business contacts based on the personal links established by the Buzzi brothers. None the less, in its telex of 23 April 1986 to Vicat, Buzzi actually told the latter that it had given a negative reply to requests for the supply of cement which it had received not only from Nice but also from Toulon and that it intended to continue so doing. The indication given by Vicat means therefore at most that the French producers, among them Vicat, saw no objection to Buzzi keeping its two or three customers of 20 years standing on the Côte d'Azur market (record of the meeting of 26 November 1988 between Lafarge and Buzzi), provided that the Italian undertaking abstained from increasing its exports on that market, in order not to disrupt the natural market of the French producers and in particular of Vicat.

1951. In conclusion, the Commission was right to see in Buzzi's statement of intention of 23 April 1996 the expression of its desire 'not to disrupt the market in the south of France (contested decision, recital 48, paragraph 6). It was also entitled to find (ibidem) that through their exchanges of price information Vicat and Buzzi endeavoured to establish a reasonable degree of certainty that any exports which continued to take place would be carried out on the basis of a pricing policy comparable to that of Vicat. The Commission was therefore entitled to conclude that those bilateral contacts, which sought to bring about competitive conditions that did not correspond to the normal market conditions, were unlawful (see, to that effect, the case-law cited in paragraph 1852 above).

1952. Ninthly, Buzzi argues that the unlawful concerted practice of which the Commission accuses it and Vicat is contradicted by the constant increase of its sales in France between 1983 and 1986 (annex 16 to its application). It adds that the Commission cannot rely, at recital 20, paragraph 7, of the contested decision, on the fall in sales in France from 1987 in order to show that the abovementioned concerted action did in fact influence the behaviour of the parties concerned on the south of France market, since that drop followed the takeover by the French producers of a number of its customers in the Côte d'Azur.

1953. It states that, during the whole of the period from 1983 to 1988, its prices on the French market were significantly lower than those of the French producers, in particular those of Vicat (annexes 18 to 23 to its application). It refutes (see paragraphs 1907 and 1941) the explanation put forward in that respect by the Commission at recital 20, paragraph 7, of the contested decision. For its part, Vicat compares Buzzi's sale prices with its own on the south of France market for the period in issue. It appears from that comparison that at the end of 1985 Buzzi's prices in France were approximately FRF 100 per tonne lower than those of Vicat.

1954. As has been stated above (see paragraph 1911), Buzzi has never denied having had, during the period under consideration in the contested decision, a number of customers in the south of France, more specifically in the Côte d'Azur market. It did not intend however waging 'war against the French producers (see the record of the meeting of 26 November 1988 between Lafarge and Buzzi; contested decision, recital 20, paragraph 3; document 33.126-6857 bis). It was thus perfectly able to follow an independent commercial policy, both in terms of prices and of volume of sales, with regard to those customers, which was the fruit of personal contacts of the Buzzi brothers, while restricting vis-à-vis all other customers its autonomy of behaviour on the basis of information provided to it by Vicat in order not to disrupt the south of France market and in particular Vicat's natural market in that region.

1955. Next, the Commission does not claim, in the contested decision, that the exchanges of price lists between Vicat and Buzzi led the latter to apply prices identical to those of the French producer in the south of France market. It maintains only that 'through the exchanges of price lists and the notification of price increases, Vicat and Buzzi endeavoured to establish a reasonable degree of certainty that any exports which continued to take place would be carried out on the basis of a pricing policy comparable to that of Vicat (contested decision, recital 48, paragraph 6). The fact that Buzzi in fact applied in the south of France prices lower than those communicated to it by Vicat does not rule out the possibility that Buzzi, despite everything, followed a 'pricing policy comparable to that of Vicat by reflecting in its export prices the change in 'local prices on that market, in this case, Vicat's prices.

1956. The various arguments put forward by the applicants either to illustrate the commercial conduct of Buzzi during the period under consideration or to refute the explanations proffered to that end by the Commission at recital 20, paragraph 7, of the contested decision do not therefore show that the bilateral contacts between Vicat and Buzzi described in recital 20, paragraph 5, of the contested decision had no impact on their conduct on the market. They do not therefore show that the infringement in question did not in fact take place.

1957. Tenthly, Vicat maintains, it its reply, that the Commission could not, without contradicting itself, criticise it for having taken part in a concerted practice with Buzzi involving both an exchange of information on prices intended to ensure that their prices were aligned with each other and, at the same time, a systematic refusal by Buzzi to deliver to the south of France.

1958. The Court points out that the Commission does not claim, in the contested decision, that Vicat and Buzzi colluded on the systematic refusal by Buzzi to deliver in the south of France or, in other words, on total non-delivery of cement by Buzzi on that market. All it alleged against Vicat and Buzzi was that they participated in a concerted practice which involved 'the exchange of price information with a view to the restriction of their autonomy of conduct as regards cement supplies in southern France (Article 3 (1) (c) of the contested decision), after it had found that 'through the exchanges of price lists and the notification of price increases, Vicat and Buzzi endeavoured to establish a reasonable degree of certainty that any exports which continued to take place without prejudice to the desire, expressed by Buzzi to Vicat, not to disrupt the market in the south of France by accepting any order which it might receive not only from Nice but also from Toulon 'would be carried out on the basis of a pricing policy comparable to that of Vicat (contested decision, recital 48, paragraph 6). It follows that Vicat's argument alleging that the Commission contradicts itself on this point must be rejected.

1959. It follows from all the foregoing that the Commission was justified in concluding that there was concerted practice as stated in Article 3 (1) (c) of the contested decision.

C The duration of the infringement

1960. The Commission considers the concerted practice between Vicat and Buzzi lasted from 11 May 1983 to 31 December 1988. 1961. First, Buzzi complains that the Commission extended the starting point of the concerted practice engaged in with Vicat by finding that that practice existed from May 1983 rather than, as in the SO, from April 1986. 1962. In the SO, the Commission actually took the following view: 'The agreements and-or concerted practices between the French producers Lafarge and Vicat and the Italian producer Buzzi ... on Buzzi's exports to France constitute restrictions of competition within the meaning of Article 85 (1) since at least 1986 [in that] such agreements and-or practices have the object of sharing the markets between such producers (Chapter 10, first paragraph of point 61 (b), of the SO, p. 173). However, it added: 'The exchanges of price lists between the French producers Lafarge, Ciments Français and Vicat and the Italian producer Buzzi constitute concerted practices restricting competition within the meaning of Article 85 [(1) of the Treaty] from at least 1983 to 1988. Such exchanges were carried out because, as may be seen in point 10 [of the SO], there is a reasonable degree of certainty that a firm wishing to export will charge prices for its supplies that are comparable to those charged by the producers established in the importing country. This removes the possibility of unforeseen or unforeseeable reactions on the part of competitors and, hence, a large part of the normal risks inherent in any autonomous change of behaviour on the market (SO, Chapter 10, second paragraph of point 61 (b), p. 173). On reading that passage of the SO, Buzzi must have realised that the Commission intended to complain that it had participated with Vicat, at least since 1983, in a concerted practice which involved 'the exchange of price information with a view to the restriction of their autonomy of conduct as regards cement supplies in southern France (Article 3 (1) (c) of the contested decision).

1963. Secondly, Vicat and Buzzi submit that the Commission, by merely producing evidence of exchanges of price lists in May 1983, April 1986 and July 1986, has failed to fulfil the obligation required by the case-law (see in particular Dunlop Slazenger v Commission, cited above at paragraph 270, paragraph 79) to adduce at least evidence of facts sufficiently proximate in time for it to be reasonable to accept that the infringement continued uninterruptedly between 11 May 1983 and 31 December 1988. Vicat stresses in particular that the Commission has not shown that Buzzi and itself continued to exchange their price lists after 1986. 1964. The applicants go on to state that the exchanges of prices lists are time-barred by virtue of Article 1 (1) (b) of Regulation (EEC) No 2988-74 of the Council of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ 1974 L 319, p. 1), because the Commission's investigations began in April 1989, that is to say more than five years after the events. Buzzi adds that the 1983 exchanges at issue are also time-barred by virtue of Article 2 (3) of that regulation, because the Commission, in adopting its decision on 30 November 1994, was penalising the conduct more than 10 years after it occurred. The applicants conclude that proceedings can be brought in respect of the infringement alleged against them at most for the period between April and July 1986. 1965. The Court points out that, although the telexes relied on by the Commission at recital 20, paragraph 5, of the contested decision attest only to exchanges of price lists in May 1983 and April 1986, the directness of the language used by Vicat and Buzzi and the spontaneity with which they sent each other their respective price lists, without explaining or asking the other party to explain the reasons behind such request for price-related information, show that those exchanges were normal practice.

1966. It should further be observed that, on 23 April 1986, Buzzi informed Vicat of the fact that it had given a negative reply to requests for the supply of cement which it had received not only from Nice but also from Toulon. By so doing, Buzzi reassured Vicat as to its previous conduct on the market in the south of France.

1967. The continuity of the infringement alleged against Vicat and Buzzi is therefore certain for the period between 11 May 1983 and 23 April 1986 inclusive. Having regard to Articles 1 and 2 of Regulation No 2988-74, the Court must reject the argument that the offending conduct involving exchanges of price lists in May 1983 is time-barred.

1968. On the other hand, there is no proof of exchanges of price lists between Vicat and Buzzi after 23 April 1986. In finding that the infringement alleged in Article 3 (1) (c) of the contested decision lasted until 31 December 1988, the Commission relies on 'the last concerted action with Lafarge ... from 26 November 1988 which involved Buzzi's revealing to Lafarge its future conduct on the market (contested decision, recital 48, paragraph 7, third subparagraph). It concludes: 'December 1988 must be deemed to be the end of the infringement as regards the three French producers too. Even though it was provided individually to the three French producers, Buzzi's information ultimately benefited all three (contested decision, recital 48, paragraph 7, fourth subparagraph).

1969. However, the fact that, at the meeting of 26 November 1988 with Lafarge, Buzzi told Lafarge that it had no desire to upset the Côte d'Azur market, and that war was pointless, does not demonstrate that 'exchanges of information on prices, which is the specific subject of the infringement found in Article 3 (1) (c) of the contested decision, took place between Vicat and Buzzi until 31 December 1988. 1970. It follows that Article 3 (1) (c) of the contested decision must be annulled in so far as it finds that Vicat and Buzzi participated, after 23 April 1986, in a concerted practice involving exchanges of information on prices in order to restrict their autonomy of conduct so far as concerns deliveries of cement in the south of France.

Access to the file

1971. None of the applicants mentioned in Article 3 (1) of the contested decision has claimed that it did not have access during the administrative procedure to the incriminating evidence mentioned in recital 20 of the contested decision.

1972. So far as it contains exculpatory evidence, Vicat, Ciments Français and Buzzi made a number of observations on the basis of those documents which they had been able to consult following the measures of 2 October 1996 and 18 and 19 June 1997. They sought to show that, by giving them only restricted access to the SO and to its investigation file during the administrative procedure, the Commission had breached the rights of the defence when finding the infringements of which they are accused in Article 3 (1) (a), (b) and-or (c) respectively of the contested decision. As stated above (see paragraph 1823), Lafarge did not submit any observations to show that the finding of the infringement of which it is accused in Article 3 (1) (a) of the contested decision was made in breach of its rights of defence.

A Case T-37-95 Vicat v Commission

1973. Vicat states that, if it had been aware of a number of documents during the administrative procedure, it would have been able to use them in order to support its defence against the complaint in Article 3 (1) (c) of the contested decision alleging that it had participated in an anti-competitive concerted practice with Buzzi.

1974. In its observations of 10 February 1997, it argues, first, that the documents consulted confirm the presence of economic and historic obstacles to the existence of a Franco-Italian concerted practice. Documents 33.126-12485 to 12492, 12493 to 12509, 12463 to 12484, 12452 to 12462, 2921 to 2928, 2929 to 2931, 3158 to 3160, 3163 to 3166, 3150 to 3154, 3017, 3018, 3019 to 3032, 3053 to 3059, 3099 to 3108, 3110 to 3126, 12083 to 12096, 12081, 12082, 12136 to 12138, 3365, 12139, 12140, 12142 and 12143 show that from the early 1980s the Italian market was closed off by a series of agreements entered into by the three principal cement producers; these were agreements in relation to which Buzzi had always been hostile. All those documents would thus have enabled Vicat to prove that Buzzi was unlikely to participate in restrictions and that a concerted practice with Buzzi would have been totally ineffective, in view of its indiscipline and the small part which it played on the Italian market.

1975. Vicat relies moreover on documents 33.126-11990 and 11991, which relate to the price increase for Italian cement authorised in September 1989 by the Interministerial Price Committee (Comitato interministeriale dei prezzi CIP) due to be announced in the Italian press by AITEC. Those documents would show, in Vicat's view, that the pricing information which Buzzi had sent to it occasionally was not confidential at all and that its commercial value was limited.

1976. Secondly, Vicat claims that there is an astonishing disparity between the practices, termed unlawful, between Italian and French cement producers and the much more elaborate practices revealed by the documents in the Spanish file. The information exchanged with Buzzi in the telex referred to by the contested decision was anodyne compared to that which, on reading the file on Spain and Portugal, were exchanged between the Portuguese and Spanish markets. In that respect, Vicat refers in particular to documents 33.322-1410 to 1412 and 1406 to 1408. It expresses astonishment therefore that its occasional exchanges of information with Buzzi should have been the subject of investigations similar to those carried out into more frequent and, above all, more sensitive exchanges of information, inasmuch as the latter involved, in particular, names of customers and volumes of exports.

1977. It should however be noted that, contrary to those affirmations, the comments which Vicat could have made on the basis of the documents it lists are not such as to prove the existence of an infringement of its rights of defence in the course of the administrative procedure.

1978. First of all, the documents relied upon in order to illustrate the 'cartelisation of the Italian market since the early 1980s and the allegedly rebellious attitude of Buzzi in that respect (see the documents referred to in paragraph 1974 above) would not have shed a different light on the documents on which the Commission relied in the SO (Chapter 2, point 10, and Chapter 10, point 61 (b)) and in the contested decision (recital 20, paragraphs 5 to 7, and recital 48, paragraphs 6 and 7) in order to conclude in Article 3 (1) (c) of the contested decision that there had been a concerted practice between Vicat and Buzzi.

1979. Nor are documents 33.126-11990 and 11991 likely to reveal the existence of a breach of Vicat's rights of defence during the administrative procedure. Any comments which Vicat might have been able to make on the basis of those documents would not have prevented the Commission from finding, objectively and irrefutably, in the light of the telexes referred to in point 10 of the SO and at recital 20, paragraph 5, of the contested decision (documents 33.126-11974, 11973, 11975 to 11977 and 6144), that the exchanges between Vicat and Buzzi during the period under consideration involved their own ex-works prices applicable at their factories at La Grave de Peille (Vicat) and Robilante (Buzzi), as well as, 'on one occasion, ... forecasts of [those] price increases (contested decision, recital 48, paragraph 6), information whose sensitive or even confidential nature is undeniable, rather than price lists and price increases approved by the State authorities. Those documents would therefore not have shown that the contacts between Vicat and Buzzi set out in Article 3 (1) (c) of the contested decision were not unlawful.

1980. Finally, the quantity, nature and content of the documents used by the Commission in order to prove one particular infringement cannot, as such, affect the evidential value of fewer documents relied upon in support of a finding of another infringement. Accordingly, documents 33.322-1406 to 1408 and 1410 to 1412, relating to the Hispano-Portuguese agreement mentioned in Article 3 (2) of the contested decision, cannot undermine the evidential value of the documents relied upon by the Commission, in the SO and in the contested decision, in concluding that there was a concerted practice between Vicat and Buzzi as stated in Article 3 (1) (c) of the contested decision.

1981. In its observations of 8 January 1998, Vicat refers, first, to the extracts from an internal Ciments Français memorandum of 20 June 1988 (documents 33.126-4366, 4372 and 4387) which reflected the French company's desire to enter into cooperation agreements with Buzzi, something which would have been inconceivable if, as the Commission maintains in its contested decision, Buzzi was involved with Vicat, a competitor of Ciments Français. Those extracts thus allegedly disprove the existence of an agreement between Vicat and Buzzi. The same is true for Lafarge's minutes of a meeting of 20 December 1988 (documents 33.126-7357 to 7362) dealing, in particular, with the French company's prospects in Italy, and which involved a possible alliance between Lafarge and, specifically, Buzzi.

1982. The Court points out that the documents thus relied on by Vicat, which do indeed refer to possible alliances with Buzzi, reflect expansionist strategies envisaged by Ciments Français and Lafarge in Italy. Those documents do not however shed a different light on the documents on which the Commission relied, in the SO and the contested decision, in concluding that there was concerted practice between Vicat and Buzzi as stated in Article 3 (1) (c) of the contested decision. The fact that two French cement producers could have pondered strategic alliances in 1988 with Buzzi does not preclude or contradict the pursuit from 1983 to 1986 of unlawful collusion between Vicat and Buzzi.

1983. Secondly, Vicat states that documents 33.126-4395 to 4399 and 4406 to 4414, apparently of 9 March 1989, relating to the cooperation agreements between Ciments Français and Unicem, could have been of use in its defence during the administrative procedure, since they would have enabled it to establish a contrario that the Commission's file did not contain any proof of an agreement or a draft agreement of that type between Buzzi and itself.

1984. However, it is not possible to argue a contrario from the existence of proof of an agreement between two parties that there is no proof of concerted action between two other parties. Moreover, in the present case, the Commission did in fact refer, in the SO and the contested decision, to documents proving that there was unlawful concerted action between Vicat and Buzzi involving 'the exchange of price information with a view to the restriction of their autonomy of conduct as regards cement supplies in southern France (Article 3 (1) (c) of the contested decision). Any comments which Vicat might have been able to make could not therefore prevent a finding of such concerted action.

1985. Thirdly, Vicat invokes documents 33.126-4421 and 4422, which contain a brief description of the Italian cement industry in 1986, in order to emphasise the lack of impact on the Common Market of the alleged concerted practice, given the very modest position held by Buzzi on the Italian market (3% share of the market).

1986. However, that reasoning does not support the conclusion that Vicat's rights of defence were infringed during the administrative procedure. In prohibiting agreements which have as their object or effect the restriction of competition and which are likely to affect trade between Member States, Article 85 (1) of the Treaty does not require that the agreement in question should have actually affected trade between Member States, which, moreover, is difficult to prove to a sufficient legal standard in most cases, but requires that it be established that the agreement be capable of having that effect (Miller v Commission, cited in paragraph 1727 above, paragraph 15, and Case C-219-95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraph 19). An agreement may thus affect trade between Member States where it is possible to foresee with a sufficient degree of probability on the basis of a set of factors of law or fact that the agreement or practice in question may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States (see to that effect Case 99-79 Lancôme v ETOS [1980] ECR 2511, paragraph 23, and Montecatini v Commission, cited in paragraph 270 above, paragraph 170). In the present case, it is apparent from the documents examined in paragraphs 1922 to 1970 above that the concerted practice between Vicat and Buzzi was likely to affect normal business in the cement sector in the Franco-Italian border region, both in regard to quantities and to prices. Any observations which Vicat might have been able to make during the administrative procedure in order to illustrate the modest position held by Buzzi on the Italian market could not therefore have altered the outcome of the administrative procedure.

1987. Fourth, Vicat puts forward an internal Lafarge document, undated but probably from 1987, entitled 'Implications of the risks of overland importation over the French borders (documents 33.126-4869 to 4873). That document, relating specifically to Italian exports to the Nice-Côte d'Azur area, allegedly confirms the existence of considerable difficulties encountered by Buzzi when exporting cement to France. In other words, that document demonstrates that the low level of trade in cement between France and Italy may be explained solely by purely objective considerations to do with the various obstacles to exportation prevailing in the Franco-Italian border area, rather than, as the Commission claims, by a local concerted practice between Buzzi and the French producers, in particular Vicat. The document in question thus states, with regard to the 'Italy-Nice-Côte d'Azur market: 'The advantage in cost terms of the nearest Italian factory (Buzzi) is not favourable ... despite a variable cost of FRF 90 per tonne instead of FRF 100 per tonne charged by French factories; as regards transport costs, the favoured approach is that of the widening of the pass at Tende (a project under serious consideration) with direct deliveries; a commercially justified warehouse at Ventimiglia would only increase delivery costs. The position of French plants on the border with Italy places them, in some circumstances, in a good position to carry out reprisals. Finally, the Italian factory does not have for the time being the requisite overcapacity investment in grinding plant is required. The whole of the above would indicate that there is no significant threat of overland imports.

1988. The Court finds that that document shows that, although, according to Lafarge, there was no 'significant threat of overland imports, in particular from Italy, and specifically from Buzzi, the 'risk which such imports involved was none the less latent.

1989. Furthermore, any comments which Vicat might have made on that document in the course of the administrative procedure in an attempt to show that the low level of cross-border trade in cement between France and Italy was due to the various obstacles and inconveniences linked to export between those two markets would not have made it possible to disregard Buzzi's statements during that administrative procedure, set forth as follows in the contested decision (recital 20, paragraph 7) '... despite a number of obstacles which it had to overcome (transport costs, customs, difference in the quality of Italian and French cement), and although it could have sold its products on closer and more profitable markets, it has been exporting worthwhile quantities (interessanti quantità) of cement to the south of France since the end of the 1960s [... at] prices ... lower than the prices communicated to it by the French producers.

1990. Finally, Vicat's comments would not have prevented the Commission from deciding that Buzzi, by informing Vicat on 23 April 1986 of its decision not to give a favourable reply to requests for supply of cement which it received from the south of France and of its intention to continue so doing (contested decision, recital 20, paragraph 5; document 33.126-6144), had 'reassured Vicat of its desire not to disrupt the market in the south of France (contested decision, recital 48, paragraph 6).

1991. It appears from the foregoing considerations that, so far as concerns the infringement mentioned in Article 3 (1) (c) of the contested decision, none of the arguments put forward by Vicat in its observations of 10 February 1997 and 8 January 1998 is such as to show that its rights of defence were infringed in the course of the administrative procedure.

B Case T-39-95 Ciments Français v Commission

1992. Ciments Français states that, if it had been aware of a number of documents during the administrative procedure, it would have been able to make full use of them in order to support its defence against the complaint in Article 3 (1) (b) of the contested decision that it had participated in an anti-competitive concerted practice with Buzzi.

1993. In its observations of 10 February 1997, it argues that the chapters in the SO dealing with Italy and the documents relating thereto (in particular documents 33.126-2945 to 2948, 2949 to 2951 and 19871 to 19873) would have enabled it to state that Buzzi had not participated in the action undertaken by the Italian producers against the Greek exporters, which had nothing to do with Cembureau. According to Ciments Français, in the absence of any such relationship between Buzzi and Cembureau, the transmission of a public price list to Buzzi by Ciments Français on 17 March 1988 (documents 33.126-11982 to 11987; contested decision, recital 20, paragraph 4) should not have been considered to be proof of an unlawful concerted action and, still less so, of an application of the Cembureau agreement. Finally, those passages from the SO relating to the Italian market make no reference to any document suggesting there were links or contacts between the French and Italian producers nor, a fortiori, between Ciments Français and Buzzi.

1994. The Court finds, however, that no breach of the rights of the defence was committed in the course of the administrative procedure with regard to the documents referred to by Ciments Français. The Commission has never claimed that Buzzi had links with Cembureau. On the contrary, in recital 48, paragraph 2, of the contested decision it emphasises the lack of any structural link between Buzzi and Cembureau. Comments by Ciments Français intended to deny the existence of such a link could therefore not have altered the outcome of the administrative procedure.

1995. In any event, any comments which Ciments Français might have been able to make in order to demonstrate the lack of any link between Buzzi and Cembureau and the absence of participation by Buzzi in the action against Greek exports undertaken by the producers belonging to its market and, finally, the total absence of any reference in the Italian chapters of the SO to documents concerning contacts between the Italian and French producers, in particular between Ciments Français and Buzzi, would not have made it possible to disregard or to shed a different light on the contents of the fax of 17 March 1988 whereby Ciments Français communicated to Buzzi, at the latter's request, its price list and the increases which it envisaged for the year (contested decision, recital 20, paragraph 4; documents 33.126-11982 to 11987) and on which the Commission relied in the SO (Chapter 2, point 10, and Chapter 10, point 61 (b)) and in the contested decision (recital 20, paragraphs 4, 6 and 7 and recital 48, paragraphs 4, 5 and 7) in concluding that the concerted practice existed.

1996. In its observations of 21 November 1997, Ciments Français makes reference, as Vicat has done, to the study carried out by Lafarge entitled 'Implications of the risks of overland importation over the French borders (documents 33.126-4869 to 4910) in which it highlights the same excerpts as those relied upon by Vicat (see paragraph 1987 above). It considers that if it had been able to have access to that study during the administrative procedure, it would have enabled it to confirm the merits of the argument put forward in reply to the SO, to the effect that there had been no possibility that Ciments Français and Buzzi were in competition. In those circumstances, the sending of a price list could not have been considered to be proof of an anti-competitive agreement. What that document in fact shows is that Buzzi, which owns the nearest factory to the French border, was not in an actual or potential competitive relationship with Vicat and Lafarge on the market of the south-east of France. That conclusion applies all the more in the case of Ciments Français, whose nearest factory to the Italian border is even farther away than those of Vicat and Lafarge. Ciments Français takes the view that that exculpatory document would have altered the outcome of the administrative procedure if the Commission had seen fit to take it into account during the abovementioned procedure.

1997. As has been pointed out at paragraph 1988 above, the Lafarge document shows that, although the French undertaking did not perceive, at that time, any 'significant threat of overland imports, in particular from Italy and specifically from Buzzi, the 'risk linked with such imports was none the less latent. Furthermore, for the reason set out at paragraph 1989 above, any comments which Ciments Français might have made on that document in the course of the administrative procedure would not have prevented the Commission from finding that Buzzi exported to France (contested decision, recital 48, paragraph 5, second subparagraph). Finally, any comments which Ciments Français might have made would not have enabled the Commission to alter the conclusions it made in the second and fourth subparagraphs of recital 48, paragraph 5, of the contested decision: '... Ciments Français and Buzzi are actual or, at the very least, potential competitors and ... any communication to a competitor of the conduct which it is planned to adopt on the market, such as to enable an influence to be exerted on the competitive conduct of such competitor, constitutes an infringement of Article 85 (1).

1998. It is clear from the foregoing considerations that, so far as concerns the infringement mentioned in Article 3 (1) (b) of the contested decision, none of the arguments put forward by Ciments Français in its observations of 10 February and of 21 November 1997 are such as to show that its rights of defence were infringed in the course of the administrative procedure.

C Case T-51-95 Buzzi v Commission

1999. Buzzi, referring to various documents, states that, if it had been aware of them during the administrative procedure, it would have been able to use them to support its defence against the complaint in Article 3 (1) (b) of the contested decision alleging that it had participated in three anti-competitive concerted practices with the French producers Lafarge, Ciments Français and Vicat.

2000. Buzzi makes the general point that none of the documents in the Commission's file to which it obtained access following the measures of organisation of procedure ordered by the Court of First Instance supports the conclusion that it was involved in an unlawful concerted practice with the principal French producers.

2001. However, the fact that unlawful conduct on its part was not shown by any of the documents which Buzzi was able to consult during the procedure before the Court does not, of itself, shed a different light on the documents which were accessible during the administrative procedure on which the Commission relied in the SO (Chapter 2, point 10, and Chapter 10, points 61 (b)) and in the contested decision (recitals 20 and 48) in order to conclude that there had been a concerted practice between Buzzi and the French producers Lafarge, Ciments Français and Vicat.

2002. Buzzi next refers to a first series of documents which, in its view, could have been useful during the administrative procedure in clarifying the market conditions and proving the total absence of any competitive relationship between the French producers and itself.

2003. First of all, it refers, in its document of 9 January 1997, to an internal Lafarge memorandum of 21 April 1989 (documents 33.126-4709 and 4710), from which, it claims, that it is clear that it was not perceived by the French undertaking as a competitor on the market in the south-east of France. In its observations of 28 November 1997 it relies on another internal Lafarge memorandum of 28 February 1988 concerning 'Investigations by the Commission in Brussels (documents 33.126-16838 to 16840). That memorandum makes clear that Buzzi's factory in Robilante was not deemed a likely source of competition in the south-east of France on which Lafarge, Ciments Français and Vicat faced each other. Buzzi further refers in its observations of 28 November 1997 to an internal Vicat memorandum of 18 July 1988 (documents 33.126-6245 to 6247), which Buzzi claims confirms that it was not perceived by Vicat as a competitor on the south of France market.

2004. It should first of all be pointed out that the three internal memoranda in question make no reference to Buzzi. They concern exclusively competition between the three French producers Lafarge, Ciments Français and Vicat on the south of France market. The fact that those documents make no mention of Buzzi does not in itself mean that the Italian undertaking was not perceived by the French producers as an actual or potential competitor on that market.

2005. Next, it is appropriate to recall once again that during the administrative procedure Buzzi itself stated that, 'despite a number of obstacles which it had to overcome (transport costs, customs, difference in the quality of Italian and French cement), and although it could have sold its products on closer and more profitable markets, it had been exporting worthwhile quantities (interessanti quantità) of cement to the south of France since the end of the 1960s in order to show that it 'acted completely independently, in accordance with the actions of an entrepreneur seeking new markets (point 4.3 of the response to the SO; contested decision, recital 20, paragraph 7) and thereby to deny the complaints made against it in the SO with regard to having participated in unlawful concerted actions with the French producers.

2006. It follows that any comments which Buzzi might have made in the course of the administrative procedure to show, in the light of the three internal memoranda which it relies upon, that it was not perceived as a competitor by the French producers with which the Commission accuses it of having engaged in unlawful concerted actions would not have prevented the Commission from finding that Buzzi exported to France (contested decision, recital 48, paragraph 5) and thus that the French producers and Buzzi were actual or, at the very least, potential competitors on the south of France market (contested decision, recital 48, paragraph 5). Finally, they would not have made it possible to disregard the documents on which the Commission relied, in the SO and in the contested decision, in concluding that the three concerted practices of which Buzzi is accused did exist.

2007. Secondly, Buzzi refers in its document of 28 November 1997 to a study on the market in the south-east of France, carried out by the commercial department of Lafarge on 10 December 1987 (documents 33.126-14549 to 14604). It claims that that document shows that the market study was carried out by Lafarge using only the undertaking's internal database. Buzzi considers that if the other French producers operating in the south-east of France, as well as itself, had provided Lafarge with enough data to enable it to know and assess the market in question, Lafarge would not have needed to resort to that internal study. It further claims that it also makes it clear that, since 1984, Lafarge had abandoned an important project, specifically on the basis of its knowledge of the market in question. Buzzi finds it remarkable that the abandonment of that project was not compensated by new initiatives, such as an exchange of information with the competition. On the contrary, Lafarge's knowledge of the market became significantly worse after 1984. Those various aspects thus contradict the Commission's argument that Buzzi had entered into an agreement with the three French producers Lafarge, Ciments Français and Vicat to share the market of the south of France on the basis of reciprocal exchanges of information.

2008. The Court points out first of all that the contested decision does not allege the existence of a single agreement or concerted practice between, on the one hand, the French producers Lafarge, Ciments Français and Vicat and, on the other, the Italian producer Buzzi. The Commission accuses Buzzi of three different concerted practices, corresponding to a like number of bilateral relationships constituting an infringement, in which the Italian producer engaged with each of the three French undertakings. Since the internal study put forward by Buzzi comes from Lafarge, and Buzzi claims that the study reveals the difficulties encountered at the time by that undertaking in collecting information on the south of France market, the only matter which need be considered is whether access to the document in question by Buzzi during the administrative procedure would have been useful in its defence against the complaint in Article 3 (1) (a) of the contested decision that it had participated in a concerted practice with Lafarge involving the sharing of the market in southern France.

2009. Lafarge's internal study concerns exclusively the volume of sales and the share of that company's market in France. However, the Commission, in finding that Lafarge and Buzzi committed the infringement mentioned in Article 3 (1) (a) of the contested decision, never claimed either in the SO or in the contested decision that their concerted action related to exchanges of information on their respective sales volumes and market shares in southern France.

2010. It follows that any comments which Buzzi might have made on that internal study by Lafarge in the course of the administrative procedure in order to illustrate the difficulties of that company in obtaining information on the south of France market and to seek in that way to refute the existence of an unlawful concerted action between Lafarge and itself, would not have made it possible to disregard the record of the meeting of 26 November 1988 between Lafarge and Buzzi, on which the Commission relied in the SO (Chapter 2, point 10, and Chapter 10, point 61 (b)) and in the contested decision (recital 20, paragraphs 3 and 7 and recital 48, paragraphs 3 and 7), in concluding that the concerted practice found against those two undertakings in Article 3 (1) (a) of the contested decision did exist.

2011. Thirdly, Buzzi draws attention in its document of 9 January 1997 to the fact that, in the statistics drawn up by SFIC (documents 33.126-14809 to 14824) the flow of imports of cement from Benelux, Germany and Switzerland had always been specifically analysed, whereas the flows from the other countries, including Italy, were mentioned under the residual heading 'Others. Those documents, in Buzzi's view, thus showed that the flow from Italy was very small. It is further alleged that it is clear from those documents, in the light of an SFIC internal memorandum drawn up for its Bureau of 5 January 1988 (documents 33.126-14806 and 14807), that the Italian imports into France were not considered to be 'normal flows of imports coming from ... European neighbours, undertaken in markets governed by economic principles. Only imports from the Benelux, Germany and Switzerland were regarded as such and were, for that reason, subject to strict control. Buzzi adds that it is precisely the cement producers of countries subject to close surveillance by SFIC which had 'structural links likely to enable them to exchange information (SO, Chapter 16, point 82, p. 211). It also compares other SFIC statistics (documents 33.126-14956 to 14976) with the abovementioned statistics (documents 33.126-14809 to 14824), pointing out that that comparison confirms that Italian importations into France were of a completely different type to those coming from Germany, the Benelux and Switzerland. It further observes that, according to an SFIC document of 10 November 1987 (document 33.126-14894) and a FIC memorandum of 9 March 1989 (documents 33.126-14898 and 14899), the members of Cembureau were in the habit of keeping in contact with the purpose of controlling imports. However, the Commission's file does not show that that habit was shared by Buzzi.

2012. The abovementioned documents as a whole show that imports from Italy were occasional and residual and were perceived as such a small threat by the French producers, that they were treated in the same way as episodic importations from countries like Japan. It follows from all the foregoing that there could not have been an agreement on the Côte d'Azur market between the French producers and Buzzi, since the basic condition of such an agreement, namely that the parties concerned should, if only potentially, be operational on the same market, was not fulfilled.

2013. It should be observed, first of all, so far as concerns the SFIC statistics (documents 33.126-14809 to 14824), that documents 33.126-14809, 14812, 14813, 14815, 14817, 14820, 14822 and 14824 were accessible to Buzzi during the administrative procedure (see paragraph 250 above). Buzzi was therefore in a position to make use of them in order to support its reply to the SO. In those circumstances, it cannot now rely upon them in order to prove that its rights of defence were infringed during the administrative procedure.

2014. The internal SFIC memorandum drawn up for its Bureau on 5 January 1988 (documents 33.126-14806 and 14807) refers to 'the existence of normal flows of importations from ... European neighbours [and to] the appearance of abnormal flows of cement coming from East Germany. There is nothing in that internal memorandum, read in conjunction with the SFIC statistics (documents 33.126-14809 to 14824), to support the conclusion that the flows from Italy were deemed abnormal. Only the flows originating in East Germany were described thus.

2015. In any event, any comments which Buzzi might have made in the course of the administrative procedure on the basis of the various documents on which it relies and, in particular, in the light of the comparison between various SFIC statistics (documents 33.126-14956 to 14976 and 14809 to 14824), in order to prove that Italian imports into France were not of the same kind as the flows from Germany, the Benelux and Switzerland, would not have made it possible to disregard the statements it made during the administrative procedure to the effect that it had exported 'worthwhile quantities to the south of France market (contested decision, recital 20, paragraph 7) and, thus, have cast doubt on the finding that Buzzi and the French producers were, on that market, actual or, at the very least, potential competitors (contested decision, recital 48, paragraph 5). In short, such comments would not therefore have made it possible to disregard the content of documents on which the Commission relied in the SO and in the contested decision, in concluding that the three concerted practices of which Buzzi is accused existed.

2016. Finally, as regards the SFIC document of 10 November 1987 (document 33.126-14894) and the FIC memorandum of 9 March 1989 (document 33.126-14898 and 14899), the Court points out that Buzzi had access to document 33.126-14898 during the administrative procedure (see paragraph 250 above). On that document FIC states, for the attention of SFIC: 'Please find enclosed the update to end of February of our exports to France. As soon as we have official figures for 1988 we shall try to draw up a comparison with the figures which you very recently sent us. Buzzi was thus in a position to develop an argument during the administrative procedure on the basis of that document in order to show that, although the Cembureau membership were in the habit of exchanging information intended to enable the control of importations, there was no document in the Commission file to prove that it, not being either a direct or indirect member of Cembureau, engaged in such practices. Buzzi cannot therefore invoke that document in order to prove that its rights of defence were infringed during the administrative procedure. In any event, the argument which Buzzi could have submitted on the basis of the SFIC and FIC documents cited above would not have been of such a nature as to invalidate the documents on which the Commission relied in the SO and in the contested decision in concluding that the three concerted practices of which Buzzi is accused existed.

2017. It follows from all the foregoing that the fact that Buzzi did not have access, during the course of the administrative procedure, to documents 33.126-14806, 14807, 14810, 14811, 14814, 14816, 14818, 14819, 14821, 14823, 14956 to 14976, 14894 and 14899 was not detrimental to its defence during that procedure.

2018. Fourthly, Buzzi adduces in its document of 28 November 1997 several documents which purportedly show the significant impact of transport conditions and costs on the cement market. It refers to a Lafarge document entitled 'Commercial Policy (document 33.126-4982), which states that there 'does not exist a uniform domestic cement market but rather specific regional markets on account of, in particular, the 'the impact of transport costs. The preponderant effect of transport costs on the assessment of profitability of exports is moreover confirmed by an SNFCC document of 2 December 1986 (document 33.126-6048 to 6050).

2019. It should be recalled in that respect that in the course of the administrative procedure Buzzi emphasised the impact of transport costs on exports to the south of France (point 4.3 of Buzzi's reply to the SO), while adding, however, that 'despite a number of obstacles which it had to overcome (transport costs ... ), and although it could have sold its products on closer and more profitable markets, it [had] been exporting worthwhile quantities (interessanti quantità) of cement to the south of France since the end of the 1960s (contested decision, recital 20, paragraph 7). Any additional comments which Buzzi might have made during the administrative procedure on the basis of the abovementioned documents in order to emphasise the influence of transport conditions and costs on export policy would not have altered the outcome of the administrative procedure in that respect.

2020. Furthermore, the Lafarge document entitled 'Commercial Policy (document 33.126-4982) was accessible to Buzzi during the administrative procedure (see paragraph 250 above). It was even in the Box (see paragraph 95 above). Buzzi was therefore in a position to use it in support of its reply to the SO. It cannot now rely upon it in order to prove that its rights of defence were infringed during the administrative procedure.

2021. The SFIC document of 2 December 1986 (documents 33.126-6048 to 6050) does not show at all that the transport costs were deemed to be prohibitive for exports. The fact that that document analyses the risks of importation of cement into France becoming more serious tends rather to prove the opposite.

2022. In its observations of 28 November 1997, Buzzi refers again, as do Vicat and Ciments Français, to the undated internal Lafarge memorandum entitled 'Implications of the risks of overland importation over the French borders (documents 33.126-4869 to 4909), in which it highlights the same excerpts as those relied upon by Vicat (see paragraphs 1987 and 1996 above). It argues that it is clear from that document that its imports into France were not perceived as a threat by Lafarge, owing, in particular, to the prohibitive nature of the transport costs involved in trade in cement between Italy and France. It concludes that, since it was not perceived as a threat, Lafarge had no interest in entering into an agreement with it to restrict its autonomy of behaviour on the south of France market.

2023. Nevertheless, as has been pointed out on several occasions, Buzzi itself acknowledged during the administrative procedure that the transport costs, just as the other obstacles and difficulties involved in trade in cement between Italy and France, were not prohibitive to the extent of dissuading it from all export activity in the southern region of France (contested decision, recital 20, paragraph 7). Any comments which Buzzi might have been able to make in the course of the administrative procedure in respect of the internal Lafarge memorandum (documents 33.126-4869 to 4909) in order to prove that its imports were not perceived by the latter as a threat would not therefore have prevented the Commission from finding objectively that Buzzi exported to the south of France at the time of the conduct complained of in the contested decision, and, thus, that it was an actual or, at the very least, potential competitor of the French producers in that region. In short, such comments would not therefore have made it possible to disregard the content of the record of the meeting of 26 November 1988 between Lafarge and Buzzi, on which the Commission relied in the SO and in the contested decision in order to find in Article 3 (1) (a) of the contested decision that there was unlawful concerted action between the two undertakings involving the sharing of the market in southern France.

2024. Buzzi next refers to a second series of documents which it claims shows the existence of a practice between the French producers in which it did not participate. In its document of 9 January 1997, it refers to internal Vicat memoranda of 18 and 30 September and of 2 and 22 October 1987 (documents 33.126-5824 to 5830), as well as to a letter of 28 February 1983 sent by Vicat to Ciments Français (documents 33.126-5844 to 5845). Examination of those various documents reveals that certain of the information sent by Buzzi to Vicat or to Ciments Français could not have been circulated between those two French undertakings or communicated in turn by those two to Lafarge. Buzzi thus sees those documents as additional proof that it was never bound by a single agreement or concerted practice to the three French producers mentioned in Article 3 (1) of the contested decision.

2025. The Court points out first of all that, in the contested decision, the Commission complains not of a single Franco-Italian agreement or practice, but of three different concerted practices. Thus any comments which Buzzi might have been able to make in the course of the administrative procedure in order to deny the existence of a single Franco-Italian practice could not have altered the outcome of the administrative procedure in that respect.

2026. As to any comments which Buzzi might have been able to make on the basis of the various Vicat documents referred to above (see paragraph 2024 above) in order to prove its total lack of involvement in the agreement which existed at the time between the French producers, they would not have enabled it to exclude the content of the various documents on which the Commission relied in the SO and in the contested decision in order to establish the reality of the three unlawful concerted practices found in Article 3 (1) (a), (b) and (c) of the contested decision.

2027. Finally, Buzzi puts forward a third series of documents, relating to the prices it charged to its French customers during the period taken into account in the contested decision.

2028. In its document of 9 January 1997, it first of all states that the prices it charged French customers in 1986 for 425 cement ranged between FRF 240 and 290 per tonne, whereas it appears from a letter from SFIC to Cembureau of 27 November 1986 (document 33.126-14938) that the price in France for CPJ 45 cement, a product in competition with its own, was FRF 357 per tonne. Moreover, other documents discovered at the SNFCC (documents 33.126-15040 to 15051) allegedly confirm that the prices applied by the French producers in respect of different types of cement at different times between 1987 and 1989 were vastly greater than those which it charged its French customers during the same period.

2029. In its document of 28 November 1997, Buzzi explains that it appears from a memorandum found on Vicat's premises (documents 33.126-6166 to 6175) that the price in France in 1987 was FRF 370 per tonne and that cement imported from East Germany at a price of FR 320 per tonne was considered to be dumped. That point is purportedly confirmed by an internal Lafarge document entitled 'Commercial Policy (see paragraph 2018 above). Buzzi concludes that, if the price of FRF 320 per tonne charged by the East German producers was considered as a dumping price, the same was necessarily true of those even lower prices (an average FRF 263.5 per tonne) which it charged its French customers also during 1987. That conduct is totally incompatible with the existence of an agreement involving the sharing of markets, an agreement which, by its nature, should necessarily have been turned to maximising profits as a result of the absence of any competition on the market. Buzzi makes the further comment that, according to a Vicat document entitled 'Average sales prices 1987 and 1988 (document 33.126-5476), the price charged by the French undertaking in January 1987 was FRF 427 per tonne.

2030. On the basis of the various documents mentioned in the two preceding paragraphs and a document entitled 'France Price Development For Cement (document 33.126-15174), Buzzi submits a table showing that there was a constant increase in average prices in France applied by the French producers during the period 1983 to 1987, but that, at the same time, its own prices for sales in France advanced in peaks and troughs, with very small upward adjustments, followed by significant drops. It concludes that the trend of its prices during that period is typical of the behaviour of a marginal producer which, on a given market, tries to make small gains (on the market) by resorting to large price reductions, while carefully attempting, in so far as possible, to pass on any increases onto the market.

2031. It must nevertheless be pointed out that during the administrative procedure Buzzi stated, in reliance on a number of documents (see point 4.4 (a) and annexes 12 to 14 of Buzzi's reply to the SO), that 'the prices it charged were lower than the prices communicated to it by the French producers in order to show that it 'had embarked on the difficult task of exporting ... completely independently, in accordance with the actions of an entrepreneur seeking new markets (contested decision, recital 20, paragraph 7). However, the Commission expressed a view on that line of reasoning in the last subparagraph of recital 20, paragraph 7, of the contested decision by replying that in its view 'the lower prices were justified by the fact that the Portland cements sold by Buzzi in France (grades 325 and 425) have lower resistance grades than the corresponding cements manufactured and sold by the French producers (grades 350 and 450). Any additional comments which Buzzi might have made during the administrative procedure on the basis of the documents referred to in paragraphs 2028 to 2030 above to show that its prices on the south of France market were significantly lower than those of the French producers were therefore not likely to have altered the outcome of the administrative procedure in that respect.

2032. It must further be pointed out that the document entitled 'France Price Development for Cement (document 33.126-15174) was accessible to Buzzi during the administrative procedure (see paragraph 250 above), as was the Lafarge document entitled 'Commercial Policy (document 33.126-4982). Buzzi was thus in a position to make use of those documents in order to support its reply to the SO. It cannot now rely upon it in order to prove that its rights of defence were infringed during the administrative procedure.

2033. It follows from the foregoing analysis that, so far as concerns the infringements mentioned in Article 3 (1) (a), (b) and (c) of the contested decision, none of the documents put forward by Buzzi in its observations of 9 January and 28 November 1997 are such as to show that its rights of defence were infringed in the course of the administrative procedure.

Conclusions

2034. It is apparent from the foregoing considerations (see paragraphs 1819 to 2033) that Article 3 (1) of the contested decision must be annulled:

in so far as it finds in subparagraph (a) that from 26 November to 31 December 1988, Lafarge and Buzzi infringed Article 85 (1) of the Treaty by participating in a concerted practice involving the restriction of their autonomy of conduct with regard to production sources,

in so far as it finds in subparagraph (c) that Vicat and Buzzi infringed Article 85 (1) of the EC Treaty after 23 April 1986 by participating in a concerted practice involving the exchange of price information with a view to the restriction of their autonomy of conduct as regards cement supplies in southern France.

2035. The remainder of the pleas examined must be rejected.

VI Pleas alleging infringements of Article 85 (1) of the Treaty, the principle of equal treatment and rights of the defence in that the Commission found that there was a Hispano-Portuguese agreement which infringed Article 85 (1)of the Treaty and that various applicants participated in it (contested decision, Article 3 (2))

Introduction

2036. Oficemen (T-59-95), Cimpor (T-61-95) and SECIL (T-62-95) deny the existence of the infringement found in Article 3 (2) of the contested decision, their participation in it and the duration of the unlawful conduct of which they are accused. Cimpor and SECIL complain, moreover, that the principle of equal treatment was infringed inasmuch as the Commission found that they participated in that infringement, whereas no such finding was made in respect of the Spanish undertakings.

2037. Oficemen, Cimpor and SECIL also plead infringement of their rights of defence inasmuch as they were not given full access to incriminating and exculpating documents in the Commission's file during the administrative procedure.

2038. In this connection the Court points out that, because of irregularities committed during the administrative procedure, certain items of incriminating evidence relied upon by the Commission in the contested decision may not be used against the applicants concerned.

2039. Those documents should therefore be disregarded when assessing the evidence of the infringement and participation in it of those parties.

2040. The following must therefore be disregarded:

the three last sentences of document 33.322-2901 used in the contested decision, recital 21, paragraph 2, second subparagraph, and recital 49, paragraph 2 (see paragraphs 369 to 372 above) as inadmissible evidence against the three applicants;

documents 33.322-512, 513, 549, 550, 566 and 567, telexes sent by or addressed to Cimpor in 1988 and 1989, used in the contested decision, recital 21, paragraph 8 (see paragraph 373 above), as inadmissible evidence against Oficemen; and

document 33.322-1399 concerning the meeting of 27 July 1988, used in the contested decision, recital 21, paragraph 6 (see paragraph 374 above) as inadmissible evidence against Cimpor.

Infringement referred to in Article 3 (2) of the contested decision

A The Commission's analysis

2041. Article 3 (2) of the contested decision states that Oficemen, Cimpor and SECIL infringed the provisions of Article 85 (1) of the Treaty 'from 1 January 1986 to 24 April 1989 by participating in an agreement on the monitoring of cement movements between Spain and Portugal and on non-transhipment to their respective home markets.

2042. Evidence of that infringement is given in particular in recitals 21 and 49 of the contested decision.

2043. The Commission explains, first of all (recital 21, paragraph 1), that 'the Portuguese producers Cimpor and SECIL and the Spanish producers' association Oficemen held several meetings between 1985 and 1989 to discuss cement exports, mainly from Portugal to Spain, resulting from the difference in prices between the two countries ....

2044. It refers next (recital 21, paragraph 2) to documents relating to two meetings held in July and December 1985, during which the principle of excluding any movement of cement between Spain and Portugal was agreed.

2045. It also refers to the following record drawn up by Cimpor of the meeting held on 22 July 1985 (contested decision, recital 21, paragraph 2, first subparagraph; documents 33.322-155 to 157):

'1. The parties present, who may be regarded as the representatives of Spanish and Portuguese cement producers, expressed their clear support for the principle that there should be no cement movements from Spain to Portugal or from Portugal to Spain that are not instigated or controlled by the cement industry of either country.

2. However, they acknowledge that this unambiguous position of agreement does not prevent third parties (distributors, retailers, consumers, carriers, etc.) from undermining the intentions of the two parties, without the latter being able to exercise effective control. In the event of such situations arising, the two parties should hold open exchanges of information in order to find a solution to the problem.

2046. It also refers to an extract from document 33.322-2901 (see paragraph 2040 above), which is a record of a visit to SECIL on 28 and 29 May 1986 by two employees of Hispacement (hereinafter 'the Hispacement document). The part used against the applicants concerned (see paragraphs 369 to 372 above) states:

'... the Chairmen of the Portuguese cement companies met at the premises of Oficemen with their Spanish counterparts in December last year (that is to say December 1985), at which time it was decided to agree on a reciprocal ban on exports between the two countries.

2047. The Commission states, moreover (recital 21, paragraphs 3 to 7) that a number of meetings were held between Oficemen, Cimpor and SECIL between 20 January 1986 and 24 April 1989, during which the state of exports between Portugal and Spain was examined.

2048. Finally, basing itself on other documents (recital 21, paragraph 8), it refers to the fact that Cimpor refused to fill orders for cement coming from Spain.

2049. The Commission concludes from the whole of its analysis (recital 21, paragraph 9) that:

'... the aim of the Portuguese and Spanish producers, represented by their associations, was to control cement exports between their two countries and hence to share the markets.

2050. It then refutes the explanations put forward by the applicants during the administrative procedure (recital 21, paragraphs 10 and 11).

2051. In the legal assessment of the conduct at issue (recital 49, paragraph 1), the Commission concludes:

'The restrictions agreed at the meetings held from 22 July 1985 to 24 April 1989 between Oficemen, Cimpor and SECIL constitute an agreement within the meaning of Article 85 (1). Through that agreement, [Oficemen, Cimpor and SECIL] opted, deliberately and in the knowledge that they were committing infringements of the laws of their countries and of the Community competition rules ..., for a form of cooperation designed to restrict, or actually to prevent, trade in cement between the two countries and, in this way, to ensure non-encroachment on their respective traditional sales markets, consolidating the partitioning of the Spanish and Portuguese markets.

The agreement constitutes an infringement as from 1 January 1986, the date on which Spain and Portugal joined the Community, until 24 April 1989 at least.

2052. It adds (recital 49, paragraphs 2 to 5) that the agreement was actually implemented and that the arguments submitted by the applicants concerned did not legitimise their conduct in any way.

B Agreement between Oficemen, Cimpor and SECIL on the monitoring of cement movements between Spain and Portugal and on non-transhipment to their respective home markets

2053. For the purposes of the present analysis, a distinction should be drawn between the agreement referred to in Article 3 (2) of the contested decision (1) and the implementation of that agreement (2). The Court will then examine the arguments put forward by the applicants concerned as to special circumstances claimed to be unreconcilable with its existence (3). Finally, SECIL's special position will be examined (4).

1. Conclusion of the agreement

2054. In the contested decision, evidence that there was an agreement on the monitoring of cement movements between Spain and Portugal and on non-transhipment to their respective home markets is based on the two documents mentioned above (see paragraphs 2045 and 2046), namely the record drawn up by Cimpor of the meeting held on 22 July 1985 and the Hispacement document.

2055. Oficemen, Cimpor and SECIL submit that those documents do not constitute proof of the existence of an agreement between them.

2056. According to SECIL and Cimpor, the record of the meeting of 22 July 1985 does not reflect the point of view of its author. It does not prove the existence of any agreement, but rather that there was support for a principle. The reference to 'the principle that there should be no cement movements from Spain to Portugal or from Portugal to Spain relates to a statement of intention which should be appraised in the light of Community and national competition rules.

2057. The three applicants also challenge the evidential value of the passage from the Hispacement document used against them. There is not in fact any evidence that the meeting of December 1985, which that passage mentions, actually took place.

2058. It is common ground that Oficemen, Cimpor and SECIL participated in the meeting of 22 July 1985. That fact is moreover confirmed by the record of that meeting drawn up by Cimpor.

2059. That last-mentioned document proves the existence of a concurrence of wills between the parties present at the meeting, and thus between the applicants referred to in Article 3 (2) of the contested decision, involving 'clear support for the principle that there should be no cement movements from Spain to Portugal or from Portugal to Spain that are not instigated or controlled by the cement industry of either country.

2060. The part of the Hispacement document which is admissible evidence against the applicants concerned (see paragraphs 369 to 372 above) confirms the fact that an agreement was struck between them some months previously. It states that: 'the Chairmen of the Portuguese cement companies met at the premises of Oficemen with their Spanish counterparts in December last year [that is to say December 1985], at which time it was decided to agree on a reciprocal ban on exports between the two countries

2061. The argument put forward by Cimpor and SECIL to the effect that the record of the meeting attests to support for a principle rather than accession to an agreement must be rejected. An agreement within the meaning of Article 85 (1) of the Treaty does not necessarily have to be in writing (Case 28-77 Tepea v Commission [1978] ECR 1391, paragraph 41). For there to be an agreement within the meaning of that provision, it is sufficient for the participants in the meeting in question to have the common intention of conducting themselves in the market in a particular way (see the case-law, cited in paragraph 1010 above). In the present case, the record of the meeting of 22 July 1985 clearly shows the existence of a concurrence of wills and, therefore, of an agreement within the meaning of Article 85 (1) of the Treaty, relating to the two aspects of the infringement referred to in Article 3 (2) of the contested decision, namely the monitoring of cement movements between Spain and Portugal and non-transhipment to their respective home markets.

2062. The other arguments challenging the evidential value of the same document and of the Hispacement document must also be rejected. The evidence must be assessed, not in isolation, but as a whole (Case 48-69 ICI v Commission, cited in paragraph 636 above, paragraph 68; Case T-141-94 Thyssen v Commission [1999] ECR II-0000, paragraph 175). The documents in question emanated from Cimpor and Hispacement, companies which are perfectly acquainted with the cement market and its traders. Since they thus emanate from two different reliable sources, they confirm the existence of the agreement at issue.

2063. Moreover, the holding of a number of meetings between Oficemen, Cimpor and SECIL between 20 January 1986 and 24 April 1989, during which the state of exports between Portugal and Spain was examined (contested decision, recital 21, paragraphs 3 to 7), also confirms that the applicants concerned sought to limit and control trade in cement between Portugal and Spain. Accordingly, it confirms the existence of an agreement (see paragraphs 2070 to 2082 below).

2064. Cimpor and SECIL further submit that it is clear from the Hispacement document that what Hispacement sought to discover was whether it could purchase clinker from SECIL under better conditions than those offered by the Spanish competitors, rather than to obtain assurances that no cement exports would be made to Spain.

2065. That argument must also be rejected. Even if Hispacement had sought to import Portuguese clinker, the fact remains that the Hispacement document proves that 'the Chairmen of the Portuguese cement companies met at the premises of Oficemen with their Spanish counterparts [in December 1985], at which time it was decided to agree on a reciprocal ban on exports between the two countries. It is apparent from the record of the meeting of 22 July 1985 that the agreement between the industries of the two countries concerned cement and did not include clinker and that movements instigated or controlled by the cement industry of either country were permitted.

2066. On the basis of the document and of the extract it analysed, the Commission was therefore able to find, rightly, that there was an agreement on the monitoring of cement movements between Spain and Portugal and on non-transhipment to their respective home markets. However, it must be examined at a later stage whether it was right in finding that the participation of the parties concerned in that agreement constituted an infringement of Article 85 (1) of the Treaty with effect from 1 January 1986 and that the infringement lasted until 24 April 1989. 2. Implementation of the agreement

2067. In recital 49, paragraph 2, first subparagraph, of the contested decision, the Commission states:

'The agreement [between Oficemen, Cimpor and SECIL] was actually implemented. The representative of SECIL stated to Hispacement ... that his firm was determined to abide by the agreement with the Spanish and that Cimpor had resisted any temptation to export even though it had received orders from customers in Spain; the parties to the agreement exchanged all the information necessary to monitor and halt exports by third parties ...; Cimpor refused to sell in Spain on the pretext that we have no availabilities for export, although it is proven that, during those same periods, it met specific requests for cement from other countries ...

2068. However, as Oficemen, Cimpor and SECIL point out, various documents relied on by the Commission in recitals 21 and 49 of the contested decision as evidence that the agreement between them was implemented, are not admissible against all the three applicants (three last sentences of the Hispacement document), Oficemen (documents 33.322-512, 513, 549, 550, 566 and 567, cited in the contested decision, recital 21, paragraph 8), or Cimpor (document 33.322-1399, cited in the contested decision, recital 21, paragraph 6) on account of irregularities committed by the Commission during the administrative procedure (see paragraphs 369 to 374 and 2038 to 2040 above).

2069. The Court must therefore examine whether the other documents relied upon by the Commission prove that the agreement was actually implemented.

2.1 Meetings held between Oficemen, Cimpor and SECIL

2070. It is apparent from various documents used as evidence against the applicants concerned that they met on several occasions in order to follow closely the development of exports between Portugal and Spain, seeking to monitor movements of cement between the two countries, in accordance with the principles agreed at the meeting of 22 July 1985. 2071. In that connection, the record of that last meeting states:

'[The parties present] acknowledge that [the] unambiguous position of agreement [on the principle that there should be no cement movements] does not prevent third parties (distributors, retailers, consumers, carriers, etc.) from undermining the intentions of the two parties, without the latter being able to exercise effective control. In the event of such situations arising, the two parties should hold open exchanges of information in order to find a solution to the problem.

2072. It would appear from the minutes of the Oficemen board meeting of 13 February 1986 (contested decision, recital 21, paragraph 3; documents 33.322-1311 and 1314) that a meeting between Oficemen, Cimpor and SECIL was held on 20 January 1986. Its purpose was to 'exchange information on the development of cement exports between the two countries. During that meeting, the parties present also agreed to 'inform each other about any exports known to them.

2073. According to documents 33.322-163 to 166 and 1406 to 1408 (contested decision, recital 21, paragraph 4) which record the meeting, another meeting took place on 23 January 1987 between Cimpor and SECIL and representatives of the Spanish producers, including Mr Andía, of Oficemen. In light of those documents, importation into Spain of cement from Portugal was perceived as a problem, so that the participants in the meeting suggested, on the one hand, a medium-term solution consisting of an increase in the price of Portuguese cement, and, on the other, a short-term solution, consisting in discouraging Portuguese operators engaging in cross-frontier exports.

2074. Further meetings took place on 5 and 6 March 1987 between Cimpor, SECIL and representatives of the Spanish producers, including Mr Andía of Oficemen. SECIL does not expressly acknowledge that he attended those meetings. However, his participation as well as that of Oficemen and Cimpor are clear from documents 33.322-169 to 172 (contested decision, recital 21, paragraph 5). At those meetings, the Portuguese producers provided their Spanish colleagues with a list of the Spanish operators who had asked them for cement quotations (document 33.322-172). The position of Portuguese cement exports to Spain for each point of entry (Valencia, Alcántara, Badajoz, Tuy) was also examined in respect of each month of 1986 and for January and February 1987 (document 33.322-170). The minutes of the meeting of 6 March 1987 (contested decision, recital 21, paragraph 5; documents 33.322-1410 to 1412) indicate that the participants had noted 'a relatively rapid increase of imports [from Portugal to Spain] since mid-October [of the previous year]. It adds that, on that occasion, 'the Spanish representatives insisted in the view that Portuguese cement prices should be amended.

2075. Oficemen, Cimpor and SECIL do not deny that, at the abovementioned meetings, the movements noted in exports of cement from Portugal to Spain were followed closely. They claim, however, that the purpose of the meetings was legitimate. They sought, in actual fact, to limit the likelihood of cement P-300 exports from Portugal to Spain, on the ground that use of that product, which was prohibited in Spain, could render Spanish cement producers liable. It is alleged that the record of the meeting of 6 March 1987 shows that the purpose of the meetings in question was to check that Spanish standards were observed with the aim of preventing civil or criminal proceedings being brought against Spanish producers. Oficemen for its part pressed the Portuguese producers to negotiate a change to the system of maximum prices with their government.

2076. The Court finds that, although in the contested decision (recital 22, paragraph 11) the Commission expressed doubts as to the scope of Spanish Royal Decree No 1964-1975 of 23 May 1975, it was no longer disputed during proceedings before the Court that that royal decree, in force from 1975 to 1988, generally prohibited the use in Spain of Portland cement of a resistance below 350 kg per cm2 (cement P-350). Moreover, the Commission does not challenge the explanations put forward by the applicants concerned, according to which two grades of cement were authorised at the time in Portugal, namely grade 30 (P-300) and grade 40 (P-400). SECIL alleges that until 1989 it only produced grade 30 cement. Cimpor claims that it did not begin to produce grade 40 cement until 1985 and in small quantities which were always absorbed by domestic demand. Nor is it disputed that in 1988 Decree No 1964-1975 was repealed and replaced by Royal Decree No 1313-1988 of 28 October 1988, expressly prohibiting the importation into Spain of cement which did not comply with the type approved by the Spanish authorities, and of cement which did meet type-approval but lacked a certificate of conformity of production.

2077. However, the argument of the applicants concerned cannot be accepted.

2078. It should be pointed out that, according to the record drawn up by Cimpor of the meeting held on 22 July 1985, those who took part in that meeting 'expressed their clear support for the principle that there should be no cement movements from Spain to Portugal or from Portugal to Spain that are not instigated or controlled by the cement industry of either country. Likewise, it is apparent from the admissible part of the Hispacement document that the purpose of the agreement was to prevent 'exports between the two countries. The agreement did not provide that the exported cement should conform to the standards applicable in the country of importation.

2079. It is also apparent from the record of the meeting of 22 July 1985 that, in so far as the agreement in question bound the cement producers, but not third parties (for example, distributors and retailers), the parties to the agreement agreed that, in the event that the actions of third parties should undermine that agreement, they should 'hold open exchanges of information in order to find a solution to the problem.

2080. Admittedly, the record of the meeting of 6 March 1987 does expressly mention Oficemen's concern over the problems posed by the use in Spain of grade 30 cement coming from Portugal. However, that document shows that the solution sought to the problem of exports coming from Portugal consisted in increasing Portuguese prices. Moreover, several other documents confirm that that solution was invariably suggested, as Oficemen pointed out during proceedings before the Court (see the records of the meetings of 23 January 1987 (contested decision, recital 21, paragraph 4; documents 33.322-163 to 166 and 1406 to 1408) and from 6 March 1987 (contested decision, recital 21, paragraph 5; documents 33.322-1410 to 1412)). The applicants cannot therefore claim that any increase in the prices of Portuguese cement was likely to resolve the problem arising, in some circumstances, from the failure of Portuguese cement to comply with Spanish standards.

2081. It follows that the purpose of the various meetings held by the Portuguese and Spanish producers was to limit exports between Portugal and Spain, rather than to make Portuguese exports conform to Spanish standards.

2082. Even if the purpose of the meetings had been to monitor observance of Spanish standards, the applicants have not explained why they did not inform the competent authorities of the problem posed by the danger of the possible use of Portuguese cement which did not conform to Spanish standards. It is in principle the task of public authorities and not of private undertakings and associations to ensure that statutory requirements are complied with (Case T-30-89 Hilti v Commission [1991] ECR II-1439, paragraph 118, and SCK and FNK v Commission, cited at paragraph 485 above, paragraph 194). Moreover, it must be observed that the agreement between Oficemen, Cimpor and SECIL prohibited also 'cement movements from Spain to Portugal (record drawn up by Cimpor of the meeting held on 22 July 1985; contested decision, recital 21, paragraph 2; documents 33.322-155 to 157) and that the applicants concerned exchanged 'information on the development of cement exports between the two countries (minutes of the Oficemen board meeting of 13 February 1986; contested decision, recital 21, paragraph 3; documents 33.322-1311 and 1314) and not only on exports from Portugal to Spain. However, the argument based on the divergence between Portuguese and Spanish standards does not at all justify the monitoring of exports from Spain to Portugal. Since Spanish cement being, at the time, at least of grade 35, it was of higher quality than the grade 30 produced in Portugal.

2.2 Cimpor's refusal to sell

2083. It is apparent from several documents submitted as evidence against the applicants concerned, specifically documents 33.322-485, 486, 493 to 495, 530 to 532, 537 and 538, cited in recital 21, paragraph 8, first subparagraph, of the contested decision that, in 1988 and 1989, Cimpor refused all requests for cement from Spain with the standard response 'we have no availabilities for export.

2084. Oficemen and Cimpor claim that there were objective reasons for such refusals to sell. It therefore had nothing to do with the implementation of an anti-competitive agreement by Cimpor. The applicants explain that Cimpor's capability to export at the time was limited. That company was thus very sensitive to fluctuations in domestic demand and to the technical vicissitudes of production. It was allegedly in such understandable circumstances that, during a particular period, certain orders were accepted and certain others refused. Furthermore, in view of its limited capability to export, Cimpor was not able to establish a strategy for developing export markets. For those reasons, maintaining links with markets in which demand exceeded supply, in particular with African countries with Portuguese as the official language, was still considered a priority, but without neglecting possibilities which might occasionally arise in other markets, such as those of the Cembureau countries, including Spain, and to fill orders sent to it in so far as it was able from a technical and logistical point of view. However, the quantities of grade 40 cement produced by Cimpor were wholly taken up by the Portuguese market. Grade 30 cement was prohibited in Spain. Orders refused related explicitly or implicitly to cement of a type not manufactured by Cimpor and which it did not have available for export.

2085. The telexes relied upon by the Commission in the contested decision (contested decision, recital 21, paragraph 8; documents 33.322-485, 486, 493 to 495, 530 to 532, 537 and 538) must be viewed in their context in order to understand Cimpor's refusal to sell. It is already unequivocally clear from the record of the meeting held on 22 July 1985 drawn up by Cimpor that it participated in the agreement on the monitoring of cement movements between Spain and Portugal and on non-transhipment to their respective home markets referred to in Article 3 (2) of the contested decision. That document refers to 'clear support for the principle that there should be no cement movements from Spain to Portugal or from Portugal to Spain that are not instigated or controlled by the cement industry of either country. The participation of Cimpor in the agreement is also apparent from the admissible extract of the Hispacement document used against the three applicants (document 33.322-2901) (see paragraph 2060 above). That fact is further confirmed by the fact that various meetings were held between the Spanish and Portuguese producers in 1986 and 1987, in which the development of exports between the two countries was analysed and solutions suggested (contested decision, recital 21, paragraphs 3 to 5).

2086. In that context, Cimpor's refusal to deliver cement in Spain in 1988 and 1989 is in itself a sign of Cimpor's continued participation in the agreement. However, it is appropriate to examine whether the arguments put forward by Oficemen and Cimpor undermine the value of that evidence.

2087. The justification put forward by Cimpor in the abovementioned telexes relating to its refusal to sell in Spain, namely the lack of availability for export, cannot be accepted. Indeed, it is not disputed that, at the time when Cimpor refused to sell cement in Spain, it had agreed to fill specific orders for cement to: Africa, Guinea, Senegal, Libya, Madagascar, Puerto Rico, United States of America, and Antilles (contested decision, recital 21, paragraph 8; documents 33.322-490 to 492, 496 to 511, 514 to 517, 523 to 526, 533 to 536, 539 to 541, 543 to 548, 551 to 556 and 571 to 574).

2088. Cimpor's argument based on the divergence between standards in Spain and Portugal must also be rejected. The Spanish Royal Decree No 1964-1975 prohibited the use, but not the importation, into Spain of Portland cement of a resistance below 350 kg per cm2 prohibition of importation of such a product was added only by Spanish Royal Decree No 1313-1988 (see paragraph 2076 above). In those circumstances, there was nothing to prevent Cimpor from selling in Spain grade 30 cement, which it in fact produced, until the entry into force of Royal Decree No 1313-88. A fortiori, there was nothing to prevent Cimpor from selling in Spain grade 40 cement, the importation and use of which were not prohibited, as Cimpor had begun, as it admits in its submissions, to produce that type of cement in 1985 'in small quantities. It must in addition be pointed out that Cimpor has not justified any of the disputed refusals to sell by claiming that its products did not conform to the Spanish standards in force. It constantly used the standard response 'we have no availabilities for export. Yet, at the same time, it accepted orders for Guinea, Senegal, Libya, Madagascar, Puerto Rico, United States of America and Antilles. Moreover, in reply to 'Spanish orders, it stated that it had no cement available even where the orders did not indicate the type of cement required (see document 33.322-538, cited in recital 21, paragraph 8, first subparagraph, of the contested decision). On the other hand, when, in August 1988, it received from 'Jcc Imp Exp an order for grade 35 cement for delivery in Senegal, that is to say outside the Community, it offered it grade 30 cement (documents 33.322-551 and 553, cited in recital 21, paragraph 8, third subparagraph, of the contested decision).

2089. In view of the automatic nature of the refusals to sell and of the standard response used to that effect which was, moreover, not true, the Commission was right to conclude (contested decision, recital 49, paragraph 2) that such refusals to sell constituted implementation of the agreement entered into by the Portuguese producers and Oficemen. That finding is borne out by the telex from Tracoisa, a Spanish trader, to Cimpor of 13 March 1989 (contested decision, recital 21, paragraph 8; document 33.322-575): '... If exports to Spain cannot (be) even considered due to the bilateral agreement between Spanish and Portuguese producers, okay but please let us know your possibilities for other markets. Even if, as Oficemen claims, that telex represents merely the speculative view of one undertaking which could not have any direct knowledge of the alleged Hispano-Portuguese agreement, the fact remains that that factor is evidence which entirely agrees with other evidence proving, when taken together, that the agreement entered into by the Portuguese and Spanish producers was implemented.

2090. Cimpor further argues that all the documents relied upon by the Commission allegedly post-date the adoption of Spanish Royal Decree No 1313-1988. It could therefore not have been at all legally or technically possible for it to fill the 'Spanish orders.

2091. However, the relevant date is not that of the adoption of Spanish Royal Decree No 1313-1988, that is to say 28 October 1988, but rather that of its entry into force, 4 January 1989. Among the documents relied upon by the Commission in recital 21, paragraph 8, of the contested decision, there are several refusals to sell relating to Spanish orders prior to the date on which the royal decree entered into force (Cimpor telexes of 24 August 1988 (document 33.322-549), of 11 November 1988 (document 33.322-532) and of 20 December 1988 (document 33.322-537 and 538). In any event, it must be pointed out that, so far as concerns orders after the date on which the royal decree entered into force, Cimpor's refusal to sell does not make any reference to legal difficulties (see paragraph 2088 above).

2.3. Conclusions

2092. It follows from all the foregoing that, solely on the basis of the documents that were admissible evidence against the applicants concerned, the Commission was properly able to find in recital 49, paragraph 2, subparagraph 2, of the contested decision that the agreement referred to in Article 3 (2) was actually implemented.

3. Specific circumstances ruling out the existence of an agreement

2093. Firstly, Oficemen claims that the existence of any Hispano-Portuguese agreement is ruled out by the report on the cement industry in Spain, published on 31 July 1991 by the Tribunal de Defensa de la Competencia (Annex O to its application). That report states that there was no sign of the existence of agreements or concerted practices between Spanish producers and foreign producers.

2094. However, the fact that the Tribunal de Defensa de la Competencia did not find any such evidence does not shed a different light on the documentary evidence analysed in paragraphs 2054 to 2092 above. The study which led the national court to its conclusion of July 1991 did not in fact deal with that direct documentary evidence.

2095. Secondly, Oficemen claims that the increase in cement exports from Portugal to Spain disproves the existence of the agreement referred to in Article 3 (2) of the contested decision. Those exports rose from 2 439 to 75 427 tonnes between 1986 and 1988, that is to say an increase of 2 993%, whereas Portuguese exports to other countries decreased from 52.6 million tonnes in 1986 to 39.6 million tonnes in 1988, that is a reduction of 33%. The fact that Portuguese exports to Spain amounted to no more than 2 715 tonnes in 1989 and only 83 tonnes in 1990 was allegedly due to the adoption of Royal Decree No 1313-1988. 2096. It should however be borne in mind that the Commission, in concluding that there had been an infringement, based itself on documentary evidence of direct collusion between the applicants concerned rather than on an analysis of the market. Any increase in exports from Portugal to Spain is not such as to shed a different light on the direct documentary evidence examined in paragraphs 2054 to 2092 above, which unequivocally shows not only that an agreement existed but also that it was implemented. In any event, as the Commission rightly points out (contested decision, recital 49, paragraph 4), exports to Spain could have taken place under other conditions in the absence of a restrictive agreement (see, to that effect, Consten and Grundig v Commission, cited at paragraph 837 above, paragraph 495). The argument must therefore be rejected.

2097. Thirdly, Cimpor and SECIL rely on the following passage from the record of the meeting of 6 March 1987 (contested decision, recital 21, paragraph 5; documents 33.322-1410 to 1412): 'The Portuguese ... are minded not to do anything about it, so that we shall have to insist at other meetings. That passage purportedly shows that there was no agreement between Spanish and Portuguese producers.

2098. That argument must be rejected. When examined in the light of all the information contained in the record in question, the passage relied upon shows that Oficemen harboured grave doubts as to the action which the Portuguese producers had to take vis-à-vis the Portuguese authorities, and in particular vis-à-vis the Directorate General for Competition and Prices, in order to bring about an increase in the price of cement in Portugal. Such action is perfectly consistent with an agreement on the regulation of trade in cement between Spain and Portugal and on non-transhipment to their respective home markets.

2099. Fourthly, Oficemen, Cimpor and SECIL set out a series of arguments explaining that the reduced volume of exports of Portuguese cement to Spain between 1 January 1986 and 24 April 1989 was due to the existence of technical and structural barriers rather than to any alleged agreement between the Spanish and Portuguese producers. Having regard to the applicable technical standards in Spain, the price levels in Spain, the system of maximum prices in Portugal and the high utilisation rate of production capacity, export of cement from Portugal to Spain was not a realistic option.

2100. Thus, SECIL claims to have produced only grade 30 cement, the marketing and, subsequently, the importation of which into Spain were prohibited (see paragraph 2076 above). Cimpor also produced almost exclusively grade 30 cement. It did not begin to produce grade 40 cement until 1985, in small quantities, which were always absorbed by domestic demand. Since the Portuguese plants worked at the limit of their production capacity during the period under consideration (in the order of 90%), the use of the existing lines with a view to manufacturing and stocking P-350 cement or cement of greater resistance intended for export would not have been possible without causing serious depletion in the supply of the Portuguese market.

2101. Moreover, it claims that prices charged in Spain and in Portugal were similar. Cimpor and SECIL refer in that connection to the passages of the Hispacement document (documents 33.322-2898 to 2903) which were not disclosed during inspection of the investigation file during the administrative procedure (see paragraphs 369 to 372 above). The Spanish market was thus allegedly of no interest, even in the rare event of Cimpor or SECIL having spare capacity. Once the costs of transport were taken into account, the final price for their product in Spain was not competitive. Furthermore, there was a risk that the Spanish producers might take reprisals, a risk which no rational businessman could ignore, having regard to the volume of the Spanish industry's surplus. It was therefore natural, when seeking an outlet for the small surpluses which they occasionally had, that the applicants should have preferred those markets in which demand structurally exceeded supply, such as the African markets, rather than the Spanish market, which was structurally in surplus. The applicants state in that connection that no Portuguese cement production plant was situated near the Spanish border.

2102. According to the applicants, the increase of imports into Spain of cement from Portugal between 1986 and 1988 was the result of the fact that Royal Decree No 1964-1975 prohibited the use of cement P-300 in work carried out within Spain, but not its importation. Taking advantage of the fact that the customs authorities did not check at the border whether the imported cement complied with the technical requirements of the Spanish royal decree, a number of unscrupulous intermediaries and undertakings imported and used Portuguese cement of the P-300 type in Spain until 1988. 2103. Another factor which helped to dissuade Portuguese producers from selling their cement in Spain was the system of maximum prices applicable in Portugal. According to Oficemen, Cimpor and SECIL, the prices imposed did not give a true view of the costs of production, so that the level of prices in force in Portugal was artificially low. Moreover, the maximum authorised sale price had been the same since 1986 irrespective of whether the cement was delivered to the purchaser from factories situated on the Portuguese coast or from stores in the interior. Accordingly, the 'ex warehouse sale price did not reflect the cost borne by the cement producer to transport the product between the factory and the warehouse. Purchase of Portuguese cement at Portuguese warehouses situated close to the border at artificially low prices thus became attractive from 1986 for Spanish intermediaries and consumers, which triggered exports to Spain. However, because of the Portuguese pricing system the effect of which was that long-distance sales achieved by producers (including all sales for export to Spain) were subsidised by sales close to factories, Portuguese producers had no interest in promoting their sales for export to Spain at the cost of more profitable sales on the Portuguese coast.

2104. The Court points out that in order to prove the existence of the infringement the Commission relied on documentary evidence of direct collusion between the applicants concerned and of implementation of the agreement, rather than on the reduced volume of cement exports from Portugal to Spain (see paragraphs 2054 to 2092 above).

2105. The arguments which the applicants base on the existence of technical and structural barriers in order to justify the low level of trade between Portugal and Spain are not of such a nature as to shed a different light on that direct documentary evidence. Thus, the applicants do not explain why, faced with alleged difficulties over the export of cement from Portugal to Spain, they undertook not to tranship to their respective home markets. Rather, their line of argument is such as to emphasise the seriousness of the infringement committed, since, by concluding and implementing the agreement referred to in Article 3 (2) of the contested decision, they attempted to eliminate the little actual remaining competition on the market.

2106. For the sake of completeness, the Court makes the following observations: the argument based on the divergence between Portuguese and Spanish standards does not justify the monitoring of exports from Spain to Portugal. Since Spanish cement was, at the time, at least of grade 35, it was of a better quality than the grade 30 produced in Portugal (see paragraph 2082 above). The system of maximum prices applicable in Portugal could not have discouraged 'ex warehouse sales by Cimpor and SECIL to Spanish customers prepared to pay the transport costs. The argument based on the allegedly prohibitive costs of transport or distance is inconsistent with the large number of Spanish orders placed with Portuguese producers (contested decision, recital 21, paragraph 8; documents 33.322-485, 486, 493 to 495, 530 to 532, 537 and 538). Finally, the Court points out the contradiction between the various arguments put forward by the applicants concerned, who allege, on the one hand, that the price levels in Spain and Portugal were nearly identical and, on the other, that, because of the artificially low prices in Portugal, Portuguese cement was attractive to Spanish and Portuguese intermediaries and consumers.

4. SECIL's special position

2107. SECIL maintains that it took no initiative in seeking to conclude an agreement with the Spanish producers. It claimed that such an agreement would have been of no interest to it, given that its production capacity was fully utilised to meet domestic demand and it feared Spanish reprisals. It points out that its commercial behaviour did not give rise to Spanish concerns and that Cimpor's refusal to sell are not evidence that it participated in an agreement on non-transhipment to home markets.

2108. The Court finds that the fact that SECIL did not participate in the drawing up of any of the documents referred to in recital 21 of the contested decision and that most of the documents were not discovered in its files does not mean that they may not be used against it as evidence of the infringement with which it is charged (Empresa Nacional Siderúrgica v Commission, cited at paragraph 1053 above, paragraph 312).

2109. It is apparent from Cimpor's record of the meeting held on 22 July 1985 that SECIL undertook to apply the agreement entered into by the participants at that meeting (see paragraphs 2058 and 2059). Moreover, the admissible part of the Hispacement document, which confirms the existence of that agreement (see paragraph 2060 above), reports the visit by two Hispacement employees precisely to SECIL. Moreover, there is specific documentary evidence of the implementation of the agreement in the context of meetings in which SECIL took part (see paragraphs 2070 to 2082 above). SECIL's alleged lack of interest in exporting to Spain is thus not of such a nature as to shed a different light on that specific documentary evidence.

2110. Finally, the Commission did not put forward Cimpor's refusals to sell to Spanish clients in 1988 and 1989 as evidence of SECIL's participation in the conclusion of the agreement. As pointed out above, that evidence is constituted by Cimpor's record of the meeting held on 22 July 1985 and the Hispacement document. In order to illustrate the implementation of the agreement, the Commission referred to Cimpor's refusal to fill orders for exports of cement from Portugal to Spain in 1988 and 1989. Evidence that the agreement was implemented by SECIL is not, however, based on Cimpor's refusal to sell but on participation in various meetings held by the Portuguese and Spanish producers with a view to limiting exports of cement between Portugal and Spain (see paragraphs 2070 to 2082 above).

5. Conclusion

2111. It follows from all the foregoing that none of the circumstances relied on by the applicants give grounds for overruling the finding that the disputed agreement was concluded and implemented (see paragraphs 2066 and 2092 above).

C Unlawful nature of the applicants' conduct

2112. Since Cimpor and SECIL admit to having been, during the period covered by the contested decision, the only Portuguese cement producers, and since Oficemen was the trade association to which the Spanish cement producers belonged, the agreement concluded by those parties manifestly restricted competition between Portuguese and Spanish producers and was such as to have a material effect on trade between the two Member States concerned. Such an anti-competitive agreement is one of the kinds of conduct expressly prohibited by Article 85 (1) (c) of the Treaty.

2113. Even though the first item of documentary evidence relates to a meeting held on 22 July 1985, the Commission was justified in concluding that 'the agreement [constituted] an infringement as from 1 January 1986, the date on which Spain and Portugal joined the Community (contested decision, recital 49, paragraph 1, second subparagraph). From 1 January 1986, the agreement, which continued to be implemented (see paragraphs 2070 to 2082 above) by parties established from that date within the Community, clearly fell within the scope of Article 85 (1) of the Treaty.

2114. Oficemen submits that the Commission has not adduced evidence that the agreement or concerted practice was maintained after the accession of Spain and Portugal to the Community. It observes that the documents relating to meetings after 1 January 1986 make no reference at all to a Hispano-Portuguese agreement. At those meetings the Spanish representatives merely expressed their disquiet at the growing imports of grade 30 cement from Portugal and asked the Portuguese producers to negotiate, with their Government, a change of those aspects of the maximum price system which stimulated such exportation. Cimpor also complains that the Commission based its finding of infringement on evidence dating from before 1986. SECIL, for its part, observes that Cimpor's record of the meeting of 22 July 1985 only mentions an intention to enter into an agreement (see paragraph 2056 above). Without breaching the principle of the presumption of innocence, the Commission is not entitled to assume that, as from 1 January 1986, SECIL began to infringe Article 85 of the Treaty by putting that intention into practice.

2115. Those arguments must be rejected. Although Cimpor's record of the meeting of 22 July 1985 predates the accession of Spain and Portugal to the Community, and in the contested decision that record plays a leading part in proving the existence of the infringement found, the Court finds that point 6 of that document shows that the parties to the agreement considered that their intention not to compete with each other could raise problems from the point of view of Community and domestic competition law in the two countries in question. Such a concern thus disclosed the intention of Oficemen, Cimpor and SECIL to implement the agreement after 1 January 1986. It is apparent, moreover, from the first sentence of the extract from the Hispacement document, concerning its two employees' trip to Lisbon in May 1986, that the same parties met in December 1985 and that 'it was decided to agree on a reciprocal ban on exports between the two countries. When that document was drawn up, namely at the end of May 1986, the Hispano-Portuguese agreement was also described not as an agreement which had expired but as an existing agreement. Finally, it has already been observed that the agreement referred to in Article 3 (2) of the contested decision was implemented in the framework of the various meetings held by Oficemen, Cimpor and SECIL after 1 January 1986 (see paragraphs 2070 to 2082 above).

2116. The Court must still examine the applicants' arguments that their conduct did not fall within the scope of Article 85 (1) of the Treaty.

2117. First, Oficemen, Cimpor and SECIL assert that Cimpor's record of the meeting held on 22 July 1985 shows the participants' intention to comply with competition law. Such an intention rules out the possibility that the applicants could have entered into an anti-competitive agreement contrary to the provisions of Article 85 (1) of the Treaty.

2118. The Court finds that point 6 of the record of that meeting reveals that the parties considered that their intention not to compete with each other could raise problems from the point of view of Community and domestic competition law in the two countries in question. However, that awareness, far from exonerating the applicants concerned of any liability, reveals, as the Commission rightly points out (contested decision, recital 49, paragraph 1), the conscious and deliberate nature of the infringement.

2119. Secondly, SECIL and Cimpor state that the cement industry in Portugal was nationalised in 1975. One of the results of nationalisation was the priority given to servicing the Portuguese market. The balance between domestic demand and national production thus arose out of a deliberate policy pursued by the Portuguese State, so that the conduct of the two undertakings falls outside the scope of Article 85 (1) of the Treaty.

2120. That argument must be rejected. Neither Cimpor nor SECIL have proved that through the conduct of the Portuguese authorities they were denied the degree of autonomy required of them by Article 85 (1) of the Treaty (see, to that effect, Joined Cases C-359-95 P and C-379-95 P Commission and France v Ladbroke Racing [1997] ECR I-6265, paragraphs 33 and 34, and Case T-387-94 Asia Motor France and Others v Commission [1996] ECR II-961, paragraphs 61 and 65). Thus, there is nothing in the file to show that the Portuguese State prohibited cement exports or exerted pressure on Cimpor and SECIL to restrict their exports to Spain. They thus enjoyed a sufficient degree of autonomy in the choice of commercial policy, in particular export policy. Moreover, the circumstances to which Cimpor and SECIL refer do not explain why the Portuguese producers thought it necessary to give an undertaking to Spanish producers that they would not export to Spain.

2121. Thirdly, Oficemen, Cimpor and SECIL submit that, in view of the divergence between Portuguese and Spanish standards, their conduct could not have had an anti-competitive effect. They are of the view that, even if an agreement had been concluded between the Portuguese producers and Oficemen, it would have been rendered purposeless as soon as the Spanish Royal Decree No 1313-88 entered into force (see paragraph 2076 above).

2122. That argument must also be rejected. Even though use of cement of a resistance below 350 kg per cm2 was prohibited in Spain, the various refusals to sell attest to the existence of real demand in Spain for cement from Portugal (see paragraphs 2083 to 2091 above). Moreover, none of the refusals to sell to Spanish customers was based on the ground that the Portuguese producers did not produce cement of a quality equal to or greater than that of Spanish cement of resistance 350. Moreover, it was not for the Portuguese and Spanish producers to stem such demand. It was conceivable that potential Spanish importers of cement from Portugal intended to re-export that cement to other States in which the use of grade 30 cement was not prohibited. Finally, the agreement in question also prohibited exports from Spain to Portugal; the applicants have not even claimed that there were technical and structural barriers to it. In those circumstances, it was in any event likely to have an appreciable effect on trade between Spain and Portugal.

2123. Even after the entry into force of Spanish Royal Decree No 1313-1988 on 4 January 1989, the disputed agreement was not rendered purposeless, since the Portuguese producers continued to have an interest in seeing their national market protected and it was in the Spanish producers' interest that the Portuguese producers should not hasten to apply to the Spanish authorities for approval of their cement types which complied with the requirements laid down by them. Thus, SECIL admitted to making its first application for approval on 3 February 1992 (application, point 2.2.6).

D Duration of the infringement

2124. Oficemen, Cimpor and SECIL submit that, should the Court find that the Commission has proved the existence of the infringement, it could not be considered to have lasted until 24 April 1989. 2125. The Court has already found that the Commission was right to fix the beginning of the infringement as 1 January 1986 (see paragraph 2113 above).

2126. None of the documents in the file show that the agreement was entered into for a limited period. The record of the meeting held on 22 July 1985 reveals that the agreement provided for the organisation of meetings between the parties when 'third parties (distributors, retailers, consumers, carriers, etc.) [could undermine] the intentions of the two parties. It was also provided that, at such meetings, the Spanish and Portuguese producers 'should hold open exchanges of information in order to find a solution to the problem.

2127. In those circumstances, the Commission was right to consider that, in the absence of any sign to the contrary, the Hispano-Portuguese agreement lasted throughout the period in respect of which it has documents confirming the holding of meetings between the Spanish and Portuguese producers at which information on exports between the two countries was examined.

2128. It is unequivocally clear from the records of the meetings held between the Portuguese and Spanish producers on 20 January 1986, 23 January and 5 and 6 March 1987 that, at those meetings, the problem of Portuguese imports was discussed and that solutions were proposed, namely an increase in the price of Portuguese cement and a policy intended to discourage Portuguese operators engaging in cross-frontier exports (see paragraphs 2070 to 2082 above).

2129. It is also apparent from the documents mentioned in the contested decision that, even leaving aside document 33.322-1399 (see paragraphs 374 and 2040 above), other meetings between the Spanish and Portuguese producers also took place, in particular on 25 June 1987, 10 November 1897, 5 February 1988, 21 April 1988, 10 May 1988, 27 July 1988, 28 October 1988, 12 January 1989 and 24 April 1989, as shown in Cimpor's documents 'Programa de Acção Conjunta and various memoranda and telexes (contested decision, recital 21, paragraph 6). However, the Commission does not have any minutes of those meetings.

2130. The applicants concerned conclude therefrom that the Commission has not adduced any evidence proving that the meetings in question pursued an objective contrary to Article 85 of the Treaty.

2131. The Court finds however that, under the 'Programa de Acção Conjunta run by Cimpor, a number of meetings were called with the Spanish producers and that SECIL acknowledges having participated in some of those meetings. If, contrary to what is suggested by the Commission in the contested decision (recital 21, paragraph 7), it cannot be concluded from documents 33.322-162, 177, 181 and 252, tables drawn up by Oficemen setting out the imports into Spain of cement coming from Portugal, that those tables were prepared on the basis of information collected from Portuguese producers and that they were discussed at meetings organised as part of the 'Programa de Acção Conjunta, the very fact that such meetings were held in that context between Spanish and Portuguese producers nevertheless constitutes objective and relevant evidence showing that the agreement lasted from June 1987 until 24 April 1989, when the last meeting of which the Commission was aware took place. Other objective and relevant evidence confirms the pursuit of that agreement during the same period. First, it is apparent from the documents found by the Commission that, at the time, Cimpor refused any order for cement coming from Spain, while at the same time accepting orders relating to deliveries outside the Community (see paragraphs 2083 to 2091 above). Secondly, the telex from Tracoisa of 13 March 1989 mentions the 'bilateral agreement between Spanish and Portuguese producers (see paragraph 2089 above).

2132. Since those various items of objective and consistent evidence demonstrate that the agreement continued until 24 April 1989, the Commission was right to conclude that the infringement was committed from 1 January 1986 to 24 April 1989. Breach of the principle of equal treatment

2133. Cimpor and SECIL maintain that, by not finding that all the Spanish undertakings which are members of Oficemen or, at least, those which attended the meetings referred to in recital 21 of the contested decision, participated in the infringement, the Commission infringed the principle of equal treatment. It is incorrect to allege that the Hispano-Portuguese agreement was concluded between Cimpor and SECIL, on the one hand, and Oficemen, on the other. It is apparent from the documents gathered by the Commission that various Spanish producers, namely Portland Mallorca, Cementos del Mar, Cementos del Atlántico, Portland Valderrivas, Cementos Portland Hispania, Asland, Hornos Ibéricos, Hispacement, Cementos Cosmos, Tudela Veguin and Cementos Alba, took part in the meetings between Spanish and Portuguese producers. Cimpor and SECIL rely in that regard on Cimpor's record of the meeting held on 22 July 1985 (documents 33.322-155 to 157), an internal document of SECIL's concerning the same meeting (document 33.322-167), Cimpor's memoranda on the meeting of 23 January 1987 (documents 33.322-163 to 166), Oficemen's internal memoranda on that same meeting (documents 33.322-1406 to 1408) and the memoranda relating to the meetings of 5 March 1987 (document 33.322-171), of 6 March 1987 (documents 33.322-1410 to 1412), of 5 February 1988 (document 33.322-161) and of 12 January 1989 (document 33.322-997).

2134. The Commission replies that the representatives of the Spanish producers who took part in the meetings referred to in recital 21 of the contested decision were on Oficemen's board of directors and attended the meetings in question in that capacity.

2135. Even if the explanation put forward by the Commission were, at least in so far as concerns the meetings of 23 January 1987 (attended by Mr Viñolas of Asland), of 5 March 1987 (attended by Mr Quemeda of Portland Valderrivas, Mr Asunción of Asland and Mr Fresno of Cementos Portland Hispania), of 5 February 1988 (attended by Mr Suana of Hornos Ibéricos) and of 21 April 1988 (attended by Mr Magan of Hornos Ibéricos), the Court points out that the fact that traders who were in a position similar to that of Cimpor and SECIL were not found by the Commission to have committed any infringement cannot in any event constitute a ground for setting aside the finding of an infringement by Cimpor and SECIL, provided that that infringement was properly established (Woodpulp II, cited in paragraph 106 above, paragraph 146). The foregoing grounds have shown that, in the contested decision, the Commission was right to conclude that Cimpor and SECIL participated in the infringement from 1 January 1986 to 24 April 1989. In those circumstances, Cimpor's and SECIL's complaint must be rejected.

Infringement of the rights of the defence when access to the file was granted

A Incriminating documents

2136. So far as concerns incriminating documents not made available to the applicants during the administrative procedure, it must be emphasised again that, even if the extracts from documents reporting the trip of two of Hispacement's employees to Lisbon in May 1986 (document 33.322-2901) are disregarded (see paragraphs 369 to 374 and 2038 to 2040 above), the Commission adduced, in the contested decision, evidence of the existence of the alleged infringement and of the participation in it of Oficemen, Cimpor and SECIL.

B Exculpatory documents

2137. In their application, Cimpor and SECIL submit that the parts of the Hispacement document (documents 33.322-2898 to 2903) which were not disclosed during inspection of the investigation file during the administrative procedure (see paragraphs 369 to 372 above) contains exculpatory evidence.

2138. However, Cimpor and SECIL cannot claim for the first time in their application that the passages initially omitted from the document in question contained exculpatory evidence, since they received the full text of the document in the course of the administrative procedure, a year and a half before the adoption of the contested decision, namely on 3 May 1993. If Cimpor and SECIL considered that that document contained information which exculpated them, they could have drawn the Commission's attention to that point before the contested decision was adopted. In any event, none of the information contained in the passages which had at first been omitted is of such a nature as to shed a different light on the specific documentary evidence on which the Commission relied in the SO (points 11 and 61 (c)) and in the contested decision (recitals 21 and 49) to establish the infringement (see paragraphs 2101 and 2104 to 2106 above).

2139. Oficemen, Cimpor and SECIL also make a number of observations based on documents which they were able to consult following the measures of 2 October 1996 and 18 and 19 June 1997 on the matter of access to the file. According to them, those documents would have been useful in the course of the administrative procedure in their defence against the complaint laid against them. Hornos Ibéricos and Blue Circle also rely on a number of documents relating to the same complaint (Hornos Ibéricos: documents 33.322-124 to 133, 170, 905, 966 to 973, 1019, 1020, 1027, 1080 to 1089, 1319 to 1322, 1395, 1396 et 1409 and Chapter 9 'Portugal at the SO; Blue Circle: documents 33.322-2898 to 2903). However, the observations which they were able to make on the basis of those documents could not have altered the outcome of that procedure for those applicants, since they are not referred to in Article 3 (2) of the contested decision (see paragraph 256 above).

1. Case T-59-95 Oficemen v Commission

2140. In its observations of 10 February 1997 Oficemen submits that a number of documents included in the file on Portugal attest to the fact that it was impossible for the Portuguese producers to export cement to the Spanish market, since Portuguese domestic demand was practically identical to their total production and they were bound by longstanding undertakings with regard to the markets of the former Portuguese colonies. Thus, Cimpor's report of activities for 1987 (document 33.322-905) and SECIL's for 1988 (document 33.322-1072) reveal that during the period from 1983 to 1987 Portuguese production was taken up in satisfying domestic demand. A letter of 17 November 1987 from Cimpor to SECIL (document 33.322-1021), which mentions the intention of the latter to import cement, is put forward as evidence that the Portuguese producers did not have the capacity to export. Likewise, the data in the fax sent by Cimpor to SECIL on 7 March 1987 (documents 33.322-1025 and 1026) concerning exports to Spain, attest to their sporadic nature and confirm the difficulties encountered by the Portuguese producers in supplying the neighbouring market. Finally, ATIC's data on imports and exports to and from Portugal in 1989 (document 33.322-197) are put forward as evidence that the Portuguese industry exported only to those countries with which it had traditional links (former Portuguese colonies such as Guinea-Bissau and São Tomé). That information is alleged to prove that the slight potential that there was for export was principally channelled towards trade with those markets, thus rendering exports to Spain impossible.

2141. The Court finds however that the alternative explanations which Oficemen put forward in order to justify the low level of trade in cement between Spain and Portugal during the period under consideration, based on the various documents on which it relies, were not of such a nature as to shed a different light on the body of specific documentary evidence on which the Commission relied in the SO (points 11 and 61 (c)) and in the contested decision (recitals 21 and 49), which unequivocally shows not only that an agreement existed but also that it was implemented (see paragraphs 2054 to 2092 above).

2. Cases T-61-95 Cimpor v Commission, and T-62-95 SECIL v Commission

2142. In their written pleadings of 7 and 10 February 1997, Cimpor and SECIL put forward, first, a series of arguments alleging that they did not receive the chapters of the SO relating to Spain (Chapters 8 and 18) during the administrative procedure. They mention in particular point 55 of the SO (p. 155), which they claim substantiates their argument that the Spanish technical rules explain the reduction of cement exports to Spain. Moreover, according to SECIL, it is clear from the same point (p. 151) that it did not have any interest in subscribing to an agreement which offered the certain prospect to Spanish producers that it would not export its cement to Spain.

2143. The Court points out that, in the SO (points 11 and 61 (c)) and in the contested decision (recitals 21 and 49), the Commission relied on specific documentary evidence, not on the market conduct of the undertakings in question, in order to establish the existence of the infringement and the participation of Cimpor and SECIL in it. Consequently, even if Cimpor and SECIL had had available to them the extracts from the chapters of the SO on Spain during the administrative procedure in order to support their two arguments, those extracts would not have been of such a nature as to shed a different light on the specific documentary evidence on which the Commission relied (see paragraphs 2054 to 2092 above).

2144. Secondly, Cimpor and SECIL submit, in their statements of 7 and 10 February 1997, that points 55 and 87 of the SO (pp. 153, 155 to 157 and 220) show that, if the absence of exports was indeed the result of an agreement, responsibility for that infringement should be attributed not only to Oficemen, but also to the Spanish cement producers. They further claim that, if they had had access to the SO pages in question, the manifestly discriminatory nature of the contested decision could have been avoided. In support of that argument they mention numerous other documents in the investigation file. Thus, they submit that it is clear from Oficemen's Articles of Association (documents 33.322-1216 to 1219) that, in the event of an agreement being entered into, this would be possible only between the Portuguese and Spanish producers, but not between the Portuguese producers and Oficemen. That is also clear, furthermore, from the minutes of Oficemen's board meetings of 13 February 1986 (documents 33.322-1311 to 1318), of 18 September 1986 (documents 33.322-1319 to 1323), of 12 March 1987 (documents 33.322-1329 to 1333) and of 10 March 1988 (documents 33.322-1334 to 1340), from various telexes and notes from Cimpor, SECIL and Oficemen (documents 33.322-1035 to 1038), and replies from Asland (documents 33.322-1801, 1802 and 1805) and Hispacement (document 33.322-2597) to a question put by the Commission during the administrative procedure.

2145. The Court finds that, if Cimpor and SECIL had been able, during the administrative procedure, to point out that several passages of the SO showed that Spanish undertakings participated in the Hispano-Portuguese agreement the Commission could at most only have found that the latter had participated either in addition to or instead of Oficemen in the infringement complained of. On the other hand, such an observation would not have been of such a nature as to exonerate Cimpor and SECIL in any way, since it would not have shed a different light on the specific documentary evidence establishing Cimpor and SECIL's participation in that agreement (see paragraphs 2054 to 2092 above).

2146. Thirdly, Cimpor and SECIL submit, in their written pleadings of 21 January 1998, that, during the period covered by the contested decision, their natural market, namely the Portuguese market, was undergoing a period of expansion. In such circumstances, it was allegedly impossible for them to develop an export policy. They cite, in that regard, a report of the board of directors of Ciments d'Obourg of 29 September 1988 (document 33.322-215). They also rely on various minutes of the Comité de Programación, a committee set up by several Spanish undertakings (documents 33.322-2816, 2820, 2829, 2830, 2833 and 2837). Those documents confirm that the Portuguese undertakings were unable to exploit the Spanish market in the long term. They show that, where surplus production was significant, as was the case in Spain, definition of an export policy would have made sense only towards countries which had regular deficits and subject to the existence of permanent capacity to deliver cement and clinker. For that reason, undertakings such as Asland, Molins, Sanson, Uniland, Portcemen and Hispacement were obliged to act together in order to palliate the difficulties entailed by the fluctuations in exportable surpluses. In support of the same argument, SECIL relies moreover on a document entitled 'Peter Schuhmacher, of 22 May 1980 (document 33.126-6007). It refers, further, to the report on the trip by Mr Torrela, of Hispacement, to Lisbon, on 3 to 5 June 1987 (document 33.322-2954), from which it is clear that neither in 1986 nor in 1987 was there any actual export capacity and that it had even imported clinker. The memorandum shows moreover that Hispacement was aware that SECIL's export capacities were purely theoretical.

2147. The Court must once again point out that in the SO (points 11 and 61 (c)) and in the contested decision (recitals 21 and 49) the Commission relied on specific documentary evidence in order to establish the existence of the infringement and the participation of Cimpor and SECIL in it. In particular, the record drawn up by Cimpor of the meeting held on 22 July 1985 between representatives of cement producers from Spain and Portugal shows that the parties present 'expressed their clear support for the principle that there should be no cement movements from Spain to Portugal or from Portugal to Spain that are not instigated or controlled by the cement industry of either country. The fact that various documents confirm that the Portuguese undertakings had no interest in or any possibility of exploiting the Spanish market in the long term is not of such a nature as to shed a different light on the documentary evidence used by the Commission. Moreover, the argument put forward by Cimpor and SECIL makes no mention of the interest which Portuguese producers had in Spanish producers' not exporting their overproduction to Portugal.

2148. Fourthly, Cimpor and SECIL consider that the content of a number of documents is inconsistent with the existence of an Hispano-Portuguese agreement or their participation in it. They explain that their participation in various meetings with Spanish producers must be understood as a prudent response on their part to the concerns expressed by the Spanish producers. They submit in their written pleadings of 21 January 1998 that several documents point out the large export capacity of the Spanish undertakings. Those documents are two plans setting out Cim-Bel's strategy (documents 33.126-8382 and 8406) and internal Lafarge memoranda of 20 and 25 April 1988 (documents 33.126-4631 and 4621 to 4624). Cimpor also relies on a CCB document entitled 'Basic information 1987 (see paragraph 1169 above) (documents 33.126-1634 and 1636). It was natural for the Portuguese undertakings to view with some apprehension the concerns of the Spanish producers, whose surpluses were equal to or greater than the Portuguese market, and which were complaining of unfair competition conditions. Cimpor and SECIL claim that, if they had had access to those documents during the administrative procedure, they would have been better able to explain the context in which the meetings with the Spanish producers took place.

2149. That argument must be rejected. The background against which those meetings between Spanish and Portuguese producers took place was necessarily known to the latter, which included Cimpor and SECIL. There was therefore nothing to prevent them from putting forward that argument even during the administrative procedure. Moreover, it must be stated that the aforesaid documents, which attest to the existence of Spanish exports to the German, Belgian, Netherlands and French markets, contain nothing which constitutes either a direct or indirect link with the meetings which took place between the Spanish and Portuguese producers and which are referred to in recital 21 of the contested decision. Cimpor and SECIL have thus not succeeded in demonstrating that access, during the administrative procedure, to the documents to which they refer, would have enabled them to make comments of such a nature as to shed a different light on the specific documentary evidence on which the Commission relied in the SO (points 11 and 61 (c)) and in the contested decision (recitals 21 and 49).

2150. Cimpor and SECIL submit, in their written pleadings of 7 February 1997, that certain Oficemen documents (documents 33.322-1225 and 1372 to 1374) show that there were some imports of cement and clinker from Spain to Portugal between 1986 and 1989. They observe next that, in the report for 1988 drawn up by the Directorate General for Mines and Construction (documents 33.322-1245 to 1289), the pages on cement imports and exports are missing. In their written pleadings of 21 January 1998, they state that the Informe General al Consejo de Administración (General Report to the Board of Directors) of Hispacement of March 1987 (document 33.322-2941), proves that trade in cement between Portugal and Spain continued to grow between 1986 and 1989, when the new Spanish technical rules blocked the access of Portuguese cement to the Spanish market. The document confirms that meetings were held by Spanish producers, in particular between Hispacement and Expocemsa, on coordinating the export of bagged cement and clinker to Portugal.

2151. The Court finds that the pages of the report drawn up by the Directorate General for Mines and Construction on the import and export of cement were accessible to the applicants following the measure of 18 and 19 June 1997. The pages in question are pages 57 to 67, which are included in the file as documents 33.322-1273 to 1278. However, in their written pleadings of 21 January 1998, Cimpor and SECIL did not claim that the fact of not having had access to those documents during the administrative procedure was detrimental to their defence.

2152. As to the argument that there was an increase in cement exports between the two countries concerned, it is clear from Cimpor's record of the meeting held on 22 July 1985 that the agreement between the Portuguese and Spanish producers did not ban all cement movements between the two countries but only movements that were not instigated or controlled by the cement industry of either country (see paragraph 2045 above). Moreover, the argument in question has already been raised by the interested parties during the administrative procedure. It was however rejected in the contested decision. The Commission was of the opinion that 'the increase in exports [was] not sufficient to refute the documentary evidence (contested decision, recital 21, paragraph 11, last subparagraph). It also took the view (contested decision, recital 49, paragraph 4) that: 'The argument put forward by the parties that the agreement did not prevent cement movements between the two parties ... carries no weight. As the Court ruled in 1966, the fact that an agreement does not in any way prevent or indeed promotes an increase in the volume of trade between Member States does not mean that there may not be a restriction of competition or that the agreement cannot affect trade between Member States, since such trade could have developed under other conditions if there had been no restrictive agreement. In so far as the Oficemen documents (documents 33.322-1225 and 1372 to 1374) and the Hispacement report of March 1987 (document 33.322-2941) substantiate an argument which was already put forward during the administrative procedure, and in the absence of any explanation by the applicants of how those documents could add to that argument, it must be held that Cimpor and SECIL have not been able to establish that lack of access to the said documents during the administrative procedure infringed their rights of defence.

2153. Cimpor also refers, in its memorandum of 7 February 1997, to an extract from Valenciana's annual report for 1988 (document 33.322-1818), which mentions under-use, in the order of 30%, of the production capacity available in Spain. It maintains that it could have used that document in support of its argument that it made no sense for it, as an undertaking without any significant export capacity, to favour exportation to markets in which the potential offer greatly exceeded demand as a result of plant capacity.

2154. The Court points out that the fact that a Spanish undertaking, namely Valenciana, experienced 30% production under utilisation of capacity bears no direct relationship to the Hispano-Portuguese agreement found in the SO and in the contested decision. In any event, the document relied on is not of such a nature as to shed a different light on the specific documentary evidence on which the Commission relied in the SO (points 11 and 61 (c)) and in the contested decision (recitals 21 and 49) in order to find that there was an infringement and that Cimpor participated in it. It is precisely a Cimpor memorandum on a meeting of 22 July 1985 which states that the parties present 'expressed their clear support for the principle that there should be no cement movements from Spain to Portugal or from Portugal to Spain that are not instigated or controlled by the cement industry of either country.

2155. In its written pleadings of 21 January 1998, SECIL refers to an internal memorandum of Cimpor's of 12 February 1987 (document 33.126-108), which allegedly attests to the importation in 1987 by Cimpor of cement in areas on the border with Spain in sufficient quantities for the Spanish undertakings to feel threatened. It also cites a Cimpor document of 12 April 1988 regarding Cementos del Norte (document 33.322-185) which refers to the serious threat from the export of Spanish surplus to Portugal and the need for the dissuasive measures taken by Cimpor. It claims that it could have used those documents to explain the non-collusive relationship between undertakings in Spain and Portugal. It explains that the Spanish market was threatened by the lower prices in Portugal and the Portuguese market by the Spanish surpluses. There was competition, even if it was cautious and restricted by the circumstances, and any thought of limiting it by means of a restrictive agreement would have been an illusion. That analysis was corroborated by the study carried out by Cimpor on 17 May 1988 of the takeover bid made by Cementos del Norte for the Souselas factory (documents 33.322-256 to 269). At the time, Cementos del Norte felt threatened by the Souselas factory's export capacity and its plan to purchase it was seen as a way of eliminating a competitor. Cimpor was aware of the aggressiveness of the Spanish cement producers and did indeed consider the market of the north of Spain as a natural market with great potential. Neither the strategy pursued by Cementos del Norte nor Cimpor's reaction are consistent with the existence of an agreement between the cement industries of both countries for the purpose of protecting their respective home markets and discouraging trade in cement.

2156. The Commission, in the SO (points 11 and 61 (c)) and in the contested decision (recitals 21 and 49), relied on specific documentary evidence in order to establish the existence of a Hispano-Portuguese agreement and the participation of the various parties in it. The documents mentioned in the foregoing paragraph would not have been useful to SECIL in its defence. The Commission has never claimed that the agreement complained of had put an end to all actual or threatened cement export between the two countries concerned. The SO (point 11, second paragraph) and the contested decision (recital 21, paragraphs 3 to 7) refer in fact to various meetings between Portuguese producers and Oficemen 'with the purpose of exchanging information on the development of cement exports between the two countries. Moreover, the existence of production surpluses in Spain was not such as to render Article 85 (1) of the Treaty inapplicable to the anti-competitive conduct of the Portuguese producers, a matter which is unequivocally clear from various items of specific documentary evidence (see paragraphs 2054 to 2092 above). Finally, the circumstances relied upon by the applicant show that the Portuguese and Spanish producers had a real interest in concluding the agreement at issue. Accordingly, if SECIL had been able to show, during the administrative procedure, on the basis of documents 33.332-108, 185 and 256 to 269, that in 1988 there were production surpluses in Spain and a threat of cement being exported between the two countries, that could not have altered the outcome of the procedure. For the sake of completeness, the Court points out that the documents relied upon by SECIL only concern the individual conduct of Cimpor on the market and are not such as to exonerate SECIL in any way.

2157. Fifthly, Cimpor and SECIL submit, in their written pleadings of 21 January 1998, that various documents could have reinforced their argument that the main topics of discussion at the meetings between Spanish and Portuguese producers, during the period covered by the contested decision, were technical requirements and quality control of imported cement. They refer to the minutes of the meetings of the board of directors of Oficemen of 18 September 1986 (documents 33.322-1319 to 1323), of 12 February 1987 (documents 33.322-1329 to 1333) and of 10 March 1988 (documents 33.322-1334 to 1340). The use of those documents during the administrative procedure would have therefore enabled them to strengthen the line of argument that the Spanish undertakings were above all concerned about the unequal conditions of competition and the notion that trade in cement between the two countries should be on the basis of similar technical regulations and qualities. The minutes of Asland's board of directors meeting of 24 September 1986 (documents 33.322-1607 and 1608) would also have been useful to that end. That document purportedly shows that Asland was concerned by cement imports of no declared origin and by the need to adopt measures to thwart them. Far from contemplating seriously the possibility of agreeing to share the market, Asland sought rather the adoption of monitoring statistics and quality checks.

2158. Cimpor relies on other documents which, in its view, could have reinforced its argument that the main topic of discussion at the meetings between Spanish and Portuguese producers, during the period covered by the contested decision, was that of the technical requirements in force in the two countries and their implications for bilateral trade. In its written pleadings of 7 February 1997, it refers to an extract from the agenda for the meeting of the Oficemen board of directors of 15 February 1990 (documents 33.322-1362 and 1363) and, in its written pleadings of 21 January 1998, it relies on minutes No 11-88 of SECIL's board of directors of 12 May 1988 for the meeting with the Spanish cement producers (documents 33.322-1048 and 1049), and an internal SECIL memorandum of 10 May 1988 (documents 33.322-1051 and 1052). The two last-mentioned documents also show that the undertakings in the two countries closely followed changes in technical requirements 'in order to avoid placing obstacles in the way of entry of cement into each country.

2159. It must be stated that that argument was already pleaded by the applicants during the administrative procedure (contested decision, recital 21, paragraph 10) and rejected in the contested decision. Thus, as the Commission found (contested decision, recital 49, paragraph 3): 'if the parties' concern was to prevent the circulation of cement that did not correspond to the standards of a country, such concern does not explain why the monitoring of cement movements between the two countries by the producers themselves would have brought the cement exported into conformity with the standards of the country of destination. In addition ... it is not the task of an undertaking (or association of undertakings) to act, on its own initiative, in place of the public authorities responsible for implementing the laws of its country .... Moreover, it considered (contested decision, recital 21, paragraph 1) that the argument was not sufficient to 'justify the control of any exports from Spain to Portugal since Spanish cement [was] at least grade 35 and thus higher than the Portuguese grade 30. In so far as documents 33.322-1048 and 1049, 1051 and 1052, 1319 to 1323, 1329 to 1333, 1334 to 1340, 1362, 1363, 1607 and 1608 substantiate an argument which was already put forward during the administrative procedure, and in the absence of any explanation by the applicants on what those documents could add to that argument, it must be held that Cimpor and SECIL have not been able to establish that, had they had access to the said documents during the administrative procedure, that procedure would have had a different outcome.

2160. Cimpor adds, in its written pleadings of 21 January 1998, that various documents show that the producers of other Member States and Cembureau attached importance to harmonisation and to the need for competition to take place in conditions of equality and without dumping (minutes of the meetings of the FIC board of 29 June 1977 (documents 33.126-1953 to 1965), 12 July 1978 (documents 33.126-1967 to 1974), 17 October 1979 (documents 33.126-1976 to 1988), 12 December 1979 (documents 33.126-1990 to 1999), 9 July 1980 (document 33.126-2009), 8 December 1982 (documents 33.126-2026 to 2033), 23 February 1983 (documents 33.126-2035 to 2043) and 13 July 1983 (documents 33.126-2044 to 2049)). Access to those documents during the administrative procedure would have made it possible to emphasise the relevance of technical regulations and quality control in the context of the relationship between the Spanish industry and the Portuguese industry.

2161. However, the Court finds that the documents aforementioned are not connected with the infringement found to have been committed. Moreover, they do not contain any information concerning the Spanish and Portuguese markets or producers. Their contents could not therefore have shed a different light on the specific documentary evidence used by the Commission both in the SO (points 11 and 61 (c)) and in the contested decision (recitals 21 and 49).

2162. Sixthly, Cimpor and SECIL refer, in their memoranda of 21 January 1998, to a large number of documents relating to agreements concluded between Italian undertakings and between Italian and Swiss undertakings (documents 33.126-2902, 2916, 2919 to 2921, 2943, 2976, 2985 to 3013, 3014 to 3032, 3033 to 3036, 3042, 3043, 3053 to 3059, 3110 to 3126, 3127 to 3131, 11878 to 11966, 12083 to 12113 and 12116 to 12135). They claim that access to those documents during the administrative procedure would have enabled them to show more clearly and forcefully the weakness of the evidence against them, taking account of the apparently institutionalised and organised market sharing by the undertakings in the cement industry in the various Member States.

2163. In that respect, it is sufficient to observe that the possible existence of institutionalised agreements between Italian and Swiss producers is not of such a nature as to shed a different light on the specific documentary evidence on which the Commission based itself both in the SO (points 11 and 61 (c)) and in the contested decision (recitals 21 and 49) in order to find the existence of the infringement and that the Portuguese producers participated in it.

2164. It follows from all the foregoing that the rights of the defence of Oficemen, Cimpor and SECIL were not affected by the lack of access to the parts of the SO and to the documents on which they relied in order to exculpate themselves during the present proceedings.

Conclusion

2165. It follows from all the foregoing (see paragraphs 2036 to 2164 above) that the pleas examined must be dismissed.

VII Pleas alleging infringements of Articles 85 (1) and 190 of the Treaty, the principle of equal treatment and the rights of the defence in that the Commission finds that there was a Franco-German agreement and concerted practice contrary to Article 85 (1) of the Treaty and that various applicants participated therein (contested decision, Article 3 (3) (a))

Preliminary observations

2166. Dyckerhoff (T-35-95), SFIC (T-36-95), Cedest (T-38-95), Ciments Français (T-39-95), Heidelberger (T-42-95), Lafarge (T-43-95) and BDZ (T-48-95), which are found in Article 3 (3) (a) of the contested decision to have committed an infringement of Article 85 (1) of the Treaty consisting in a Franco-German agreement and concerted practice, dispute the existence of such an agreement and concerted practice and also their participation in the infringement. Ciments Français and Heidelberger specifically dispute the existence of the various elements in respect of that infringement, namely an agreement on the sharing of the Saarland market, various concerted practices and an agreement on the general regulation of cement supplies between France and Germany, or at the very least their participation therein. Dyckerhoff, SFIC, Cedest, Lafarge and BDZ dispute the existence of certain of those elements, or at the very least their participation therein. Ciments Français, Heidelberger and Lafarge dispute the length of their participation in the infringement. Ciments Français also criticises the artificial nature of the link which the Commission finds between the three elements identified in respect of that infringement. The applicants' complaints relate both to the assessment of the economic background to the alleged Franco-German agreement and to the interpretation of the evidence which the Commission puts forward in the contested decision.

2167. Before assessing the substance of the various arguments put forward, it is appropriate to examine the infringement in question as presented in the contested decision.

2168. The Commission states in Article 3 (3) (a) of the contested decision that SFIC, Lafarge, Ciments Français, Cedest, BDZ, Dyckerhoff and Heidelberger 'infringed the provisions of Article 85 (1) of the Treaty from 23 June 1982 to at least 30 September 1989 by participating in agreements and concerted practices involving the regulation of cement supplies from France to Germany and from Germany to France. The reasoning which the Commission devotes to this infringement in the contested decision is to be found, in the account of the facts, in recital 22, paragraphs 1 to 11 and 13 to 18, first subparagraph, and, in the legal assessment, in recital 50, paragraphs 1 to 4. 2169. It is apparent from that reasoning that the Commission, in reliance on the content of a number of documents, finds the existence, from 1982, of an agreement to share the Saarland market and concerted practices between various French and German producers and associations and, from 1984, of an agreement on the general regulation of cement supplies between France and Germany.

2170. The Commission states in recital 50, paragraph 4, first and third subparagraphs:

'In view of the fact that the agreement on the sharing of the Saarland market, the concerted practices involved in the pursuit of a solution on the limiting of sales by Cedest in Germany apart from the Saarland, and the 1984 agreement referred to in the letter of 22 September 1986 all had as their object the sharing of markets and the restriction of cross-frontier flows of cement between France and Germany, the Commission takes the view that the agreements and concerted practices may be deemed to be a single and continuous infringement.

...

The single and continuous infringement relating to the restriction of cross-frontier flows between France and Germany was committed, from 23 June 1982 to 30 September 1989, by SFIC, Cedest, Ciments Français, Lafarge, BDZ, Dyckerhoff and Heidelberger.

2171. The Commission therefore finds the participation of those applicants in an infringement consisting of various elements, the existence of which it claims to have established on the basis of specific documentary evidence. The arguments put forward by the applicants seek to show that the Commission has failed to adduce proof of its allegations The Court will examine those arguments in turn according to the element of the infringement to which they relate.

Agreement to share the Saarland market

2172. It follows from the contested decision that the Commission, as it has confirmed by implication in its written submissions and expressly in its answer to a written question put by the Court in Cases T-35-95, T-36-95, T-38-95, T-39-95, T-42-95, T-43-95 and T-48-95, considered that one of the constituent elements of the infringement referred to in Article 3 (3) (a) of the contested decision was an agreement to share the Saarland market.

2173. Without providing any specific details of the date on which the agreement was concluded or from which it was applied, the Commission observes in the Legal Assessment of the contested decision (recital 50, paragraph 2, first and second subparagraphs):

'The memoranda of 23 June 1982, 22 July 1982 and 17 November 1982 ... show that the sharing of sales on the Saarland market between Ciments Français, Cedest, Heidelberger and Dyckerhoff was an established fact that was not disputed by any of the undertakings concerned, since it was only other markets that were disputed (Saarland excluded).

The existence of this agreement is confirmed by the statement made by Dyckerhoff to Ciments Français at the meeting on 9 and 10 May 1983 ... that it did not intend to sell in Saarland and France the cement obtained through the grinding of 100 000 tonnes of clinker at the factory of Ciments Luxembourgeois.

2174. The Commission considers that the existence of this agreement not only predates the period in issue but is also contemporaneous with that period. It points out (recital 22, paragraph 17, second subparagraph) that 'the agreement on Saarland is referred to in the notes of two different producers; the agreement is mentioned not only as a historical fact but also as an existing fact ....

2175. The Commission maintains that the three documents to which it refers in recital 50, paragraph 2, first subparagraph, of the contested decision establish that Cedest began to sell cement in German Länder other than Saarland, which led the German producers to react by 'attacking the market in eastern France to the detriment of the French producers there. This move by Cedest did not affect the application of the agreement to share the Saarland market, however, so that the preexisting agreement continued and the other parties concerned by the general regulation of cement supplies between France and Germany, following Cedest's conduct, took part in the agreement to share the Saarland market on that occasion by incorporating it into a broader framework.

2176. The Commission thus explains (recital 50, paragraphs 2, third subparagraph, and 3, first subparagraph):

'This agreement on the sharing of the Saarland market initially involved Ciments Français, Cedest, Heidelberger and Dyckerhoff. However, on the basis of the points made in paragraphs 3, 4 and 5 below, the Commission considers that the agreement forms part of the wider arrangements covering relations as a whole between the German and French producers, not just these four producers alone.

Following the exports by Cedest to the German Länder other than Saarland and the German producers' reaction in France, bilateral consultations took place with a view to limiting cross-frontier flows of cement.

2177. The bilateral agreements referred to correspond, in the structure of the contested decision, to the concerted practices referred to in Article 3 (3) (a) of the contested decision.

2178. Furthermore, the Commission states in recital 50, paragraph 4, second subparagraph that:

'... even though initially SFIC, BDZ and Lafarge were not parties to the agreement on the Saarland, they accepted it as from 23 June 1982, i.e. as from the time when they acted to extend the agreement on the Saarland to other German Länder and to fit the agreement into the broader framework of the regulation of trade flows between France and Germany.

2179. The Commission also states (recital 50, paragraph 4, first subparagraph) that the fact that 'the agreement on the sharing of the Saarland market, the concerted practices involved in the pursuit of a solution on the limiting of sales by Cedest in Germany apart from the Saarland, and the 1984 agreement referred to in the letter of 22 September 1986 all had the same object gives grounds for it to regard those agreements and concerted practices as a single and continuous infringement.

2180. Consequently, even though in the contested decision the Commission finds an infringement only in respect of the concerted practices implemented between 1982 and 1984 and the agreement concluded in 1984 when it states (recital 50, paragraph 3, final subparagraph) that '[t]he concerted practices described here, which took place from 1982 to 1984, and the 1984 agreement resulting from the letter of 22 September 1986 constitute infringements of Article 85 (1) committed by SFIC, Cedest, Ciments Français, Lafarge, BDZ, Dyckerhoff and Heidelberger, its failure expressly to refer to the agreement to share the Saarland market leaves no scope for ambiguity as to the characterisation by the Commission of that agreement in the contested decision, contrary to what is alleged by BDZ. Moreover, the wording of Article 3 (3) (a) of the contested decision refers to the participation of the applicants in question in agreements and concerted practices. The use of the plural confirms that the agreement to share the Saarland market is regarded as one of the constituent elements of the infringement.

2181. As regards the evidence, Dyckerhoff, Ciments Français, Heidelberger and BDZ claim that the Commission has failed to establish the existence of an agreement to share the Saarland market in 1982 and 1983. Cedest (T-38-95) denies having participated in such an agreement at that time.

2182. For the purpose of establishing the existence of the agreement, the Commission relies in the contested decision (recitals 22, paragraph 2, and 50, paragraphs 1 and 2) on, first, four documents and, second, the setting-up of a transport company, the Saarländische Silo-Transport GmbH (hereinafter 'SST).

2183. The four documents in question lead the Commission to consider that in 1983 the agreement to share the Saarland market was an established and undisputed fact for Ciments Français, Cedest, Heidelberger and Dyckerhoff (contested decision, recital 50, paragraph 2).

2184. However, the Commission's analysis of those matters in the contested decision and in the context of the present proceedings cannot be accepted.

2185. It is apparent from two documents referred to in the contested decision that the agreement to share the Saarland market to which they refer formed part, at least until Cedest adopted a more aggressive commercial approach in Germany, of a broader framework involving the regulation of transfers of cement between France and Germany.

2186. First, an internal memorandum from Vicat (documents 33.126-6055 to 6057) dated 22 July 1982 and entitled 'Deliveries of German cement to Eastern France, states that sales in the Saarland market, at least until 1977, were made in accordance with a specific quota arrangement between Cedest, Ciments Français, Dyckerhoff and Heidelberger.

2187. In point 1 of that memo, which deals with the background to supplies of German cement in eastern France, the author points out that:

'Historically, the starting point to this business was when Saarland became an economic part of Germany in 1959. ... In the period 1947-1959, cement was supplied by French (Thionville and Hagondange) and German steelmakers under a specific quota system. Thus, until recently, deliveries were broken down as follows:

SCF [Ciments Français] = 120 000 tonnes-year through Saarländische Zement-Gesellschaft (affiliated to SCF);

Cedest = 90 000 tonnes-year;

German producers (Dyckerhoff from the Gommel plant and Heidelberger) = 250 000 tonnes-year.

...

This generally accepted situation was considerably altered some five years ago by Cedest which, not content with supplying the Saarland market, acquired an entire section of German consumers representing an annual share of some 100 000 to 120 000 tonnes-year. The German producers protested vehemently, then, tired of fruitless discussions, took the initiative by entering eastern France with the aim of making good their losses on the French market, in particular by targeting Cedest customers.

2188. The author of the memorandum therefore considered that the previous situation, which included an agreement to share the Saarland market, was considerably altered by Cedest's conduct. Cedest was no longer satisfied with its quota share in Saarland and began to sell a quantity of approximately 120 000 tonnes to German customers outside Saarland. This considerable change in the situation led the German producers to react and to begin to sell their cement in France, more particularly in the east. The author of the memorandum therefore saw the agreement to share the Saarland market as part of a broader arrangement which also covered transfers of cement between France and Germany in areas other than Saarland.

2189. The remaining passages in the document confirm that subsequently the agreement to share the Saarland market, which existed at least from 1959 until 1977, was no longer applied.

2190. Thus the memorandum goes on:

'Despite the devaluation of the French franc and the price freeze (11.6.82), German producers decided to intensify their action in the East.

...

Furthermore, Cedest is spoiling the climate which can only result in conflict, a conflict that is liable to spread at a time when we are endeavouring to increase our tonnage.

The problem remains unsolved, however, as regards the tonnes taken on the French market by German producers, owing to the attitude of Cedest.

2191. Accordingly, it cannot be concluded from the memorandum in question that an agreement to share the Saarland market existed in 1982, as the Commission claims (contested decision, recital 50, paragraph 2).

2192. Second, it follows from a handwritten internal memorandum dated 23 June 1982 by Lafarge (documents 33.126-6592 to 6596) referred to in recital 22, paragraph 4, of the contested decision that the agreement to share the Saarland market which existed until the 1970s represented the reaction of the producers concerned to the first disruption of relations between French and German producers. In the context of that reaction it was decided to split the Saarland market by giving one half of sales to the French producers and the other half to the German producers, which supports the information in Vicat's memorandum of 22 July 1982 that Cedest and Ciments Français held a quota of 210 000 tonnes and Dyckerhoff and Heidelberger a quota of 250 000 tonnes (see paragraph 2187 above). The Lafarge internal memorandum of 23 June 1982 confirms that the agreement to share the Saarland market fitted into a broader context of regulation of transfers of cement between France and Germany.

2193. That memorandum records discussions between Lafarge and Dyckerhoff. Although the German producer in question is not expressly named in the document, it can be identified from the use of the letters 'GR in the memorandum to indicate what was said by Mr Grüner, a Dyckerhoff employee, and also from what is stated in the contested decision (recital 22, paragraph 4) and the arguments exchanged by the parties in Cases T-35-95 and T-43-95. 2194. The author of the memorandum reports what Mr Grüner said as follows:

'Gr 1) Background

Two years ago, opportunity to speak to G d'A. about

Laf. [Lafarge] in Germany

Cedest's relations South Germany

The first disruption was Saarland. Rule of the game sharing. France the result being

Germany

a price increase of DM 15 or %. Disastrous

clause 5 000 t too much -> necessary.

10 000 reaction

That worked

Towards 1970 the Thionvillaise began to supply 20-30 000 ...

later -} W [Wössingen]

...

2195. The Commission states in the contested decision (recital 22, paragraph 4), without being contradicted by the applicants, that the 'Thionvillaise meant Cedest.

2196. It is apparent upon examining the memorandum that Cedest had ceased to comply with the agreement to share the Saarland market at the beginning of the 1970s and had clearly exceeded its quota. Since it follows from Vicat's internal memorandum of 22 July 1982 that Cedest had also sold cement in German regions other than Saarland since the end of the 1970s, which would have considerably altered the position thus far prevailing between France and Germany (see paragraph 2187 above), Lafarge's memorandum confirms that Cedest's conduct and the German producers' reaction related to both the Saarland and the various other border regions.

2197. The author of the Lafarge memorandum states elsewhere that '... Cedest tried to demolish the Fr. sys. ..., which also demonstrates that Cedest's attitude was seen to threaten the entire position.

2198. The author of the memorandum also states that 'BC asks 'What are Cedest's rights since this has been going on for 10 years? Those words were spoken by Mr B. Collomb, of Lafarge, who was at the meeting representing the interests of Wössingen (formerly Portland Zementwerk Wössingen, PZW for short), a German subsidiary of Lafarge (contested decision, recital 22, paragraph 11, fourth subparagraph). His words show that the disruption caused by Cedest's conduct had been continuing for 10 years when the memorandum was drafted.

2199. Accordingly, it cannot be maintained that the Lafarge internal memorandum of 23 June 1982 shows that the agreement to share the Saarland market was still being applied in 1982 and 1983. 2200. That document and the preceding document show that the agreement to share the Saarland market was an arrangement whose scope extended beyond the boundaries of Saarland and covered all relations between France and Germany. The agreement was not to sell cement outside the home frontiers and where sales were made these were to be made within the agreed limits, as for the Saarland market, which was an exceptional case owing to its historical attachment. However, the two documents do not show that the agreement still existed in 1982 and 1983, since they record that it was called in question not only by Cedest but also by the German producers.

2201. The Commission cites two further documents in support of its argument: an undated internal note by Lafarge (documents 33.126-6582 and 6583), cited in recital 22, paragraph 7, of the contested decision, setting out the content of discussions held at a meeting on 17 November 1982 between Cedest, Dyckerhoff and Heidelberger, and a summary record drawn up by Ciments Français on 17 May 1983 (documents 33.126-4251 to 4253), cited in recital 22, paragraph 9, of the contested decision, which reports a meeting between Ciments Français and Dyckerhoff on 9 and 10 May 1983. 2202. However, these two documents do not contradict the conclusions which may be drawn from an examination of Vicat's internal memorandum of 22 July 1982 and the Lafarge memorandum of 23 June 1982. 2203. First, the undated internal note by Lafarge, entitled 'Summit Meeting CEDEST-DYCK-HEI 17-11, is headed 'JM to B. Collomb. The first paragraph is worded as follows: 'Knut BFB called me this afternoon to give me a brief account of yesterday morning's meeting, which continued through lunch, all in the best atmosphere participants: Seillière + Renard Lose-Grüner Brenke. The initials 'JM are those of Mr J. Marichal, representing Lafarge. Mr Seillière and Mr Renard represent Cedest. The abbreviation 'Knut BFB corresponds to the name of one of Lafarge's associates in its Wössingen subsidiary, Mr Knut Bücker-Flürenbrock. Mr J. Lose and Mr H. Grüner represent Dyckerhoff. Mr T. Brenke represents Heidelberger.

2204. It therefore follows from the first paragraph of the note, which is not reproduced in the contested decision, that the information which it contains comes from someone, Mr Knut Bücker-Flürenbrock, who had not participated in the meeting on 17 November 1982. 2205. In its observations of 7 January 1998 concerning access to the Commission file which it had been granted following the measure of 18 and 19 June 1997, Cedest relied, in particular, on the content of an internal note of Lafarge of 7 January 1983 (documents 33.126-7514 to 7516), to which it had not been given access during the administrative procedure, to challenge the probative value of the internal Lafarge note cited in recital 22, paragraph 7, of the contested decision and to establish that it had continued to act independently in Germany during that period.

2206. It should be emphasised that the note of 7 January 1983, which the Commission, at the hearing in Case T-38-95, did not deny had an objective link with a complaint against Cedest, would not only have been useful to Cedest for the purpose of its rights of defence during the administrative procedure (see paragraph 247 above and paragraphs 2284 to 2290 below) but sheds fresh light on the content of the internal note by Lafarge referred to in recital 22, paragraph 7, of the contested decision as regards what was actually said by Cedest's representatives during the meeting on 17 November 1982 with the representatives of Dyckerhoff and Heidelberger.

2207. The internal note of 7 January 1983 is an internal record of the information obtained by two Lafarge representatives, Mr Collomb and Mr Marichal, at a meeting on 10 December 1982 with, inter alios, the representatives of Dyckerhoff and Heidelberger on the occasion of the twenty-fifth anniversary of the brothers E. and K. Bücker-Flürenbrock, Lafarge's associates in Wössingen. Under the heading that note states, 'Lose and Bremke: 'Nothing very special, very friendly. The traditional refrain: You should do business in the FGR, but nothing new. Yes, we have had a conversation with Cedest. The form was very subdued, pleasant, but essentially there is no change. On the other hand, they made no reference to what Knut Bücker-Flürenbrock claims was said by Cedest at that meeting, namely: We are quite happy for RMC to obtain additional tonnage of cement from Wössingen. In that case, however, RMC will purchase less cement in Rheinland-Westphalia, that is from Dyckerhoff.

2208. Several factors show that this extract from the note refers to the meeting on 17 November 1982 between Cedest, Dyckerhoff and Heidelberger. First, Mr Lose represents Dyckerhoff and the name 'Bremke corresponds to Mr T. Brenke, who represents Heidelberger. Second, the meeting to which the note of 7 January 1983 refers took place on 10 December 1982, less than a month after the meeting on 17 November 1982 between Cedest, Dyckerhoff and Heidelberger. Third, both notes, the note of 7 January 1983 and the note referred to in the contested decision (recital 22, paragraph 7), are internal notes of Lafarge, drafted by the same person, Mr Marichal. Fourth, the wording of the note of 7 January 1983 shows the link between that note and the undated note referred to in the contested decision (recital 22, paragraph 7). Thus the first paragraph of the undated note states that it is a record of the meeting of 17 November 1982 given to Mr Marichal by Mr K. Bücker-Flürenbrock via the telephone on 18 November 1982 (see paragraph 2203 above). The note of 7 January 1983 not only mentions the pleasant atmosphere at the meeting which Mr Lose, of Dyckerhoff, and Mr Brenke, of Heidelberger, had with the representatives of Cedest, but refers expressly to what Mr Bücker-Flürenbrock ascribes to Cedest during that meeting (see preceding paragraph).

2209. The wording of the note of 7 January 1983 and the source of the information which it records therefore remove all probative value from the document which the Commission used in the contested decision (recital 22, paragraph 7) as evidence of what Cedest's representatives said about the Saarland market at the meeting of 17 November 1982. 2210. First, it directly contradicts the wording of the note cited by the Commission in the contested decision and from which it concludes that Cedest was prepared to limit its sales in Germany and adapt them to market trends (recitals 22, paragraph 7, and 50, paragraph 3, second subparagraph). Second, unlike the internal note cited in the contested decision (recital 22, paragraph 7), they report information obtained from persons, Mr Lose and Mr Brenke, who actually attended the 17 November 1982 meeting between Cedest, Dyckerhoff and Heidelberger.

2211. It follows that, apart from the fact that the failure to grant access to the note during the administrative procedure affected the rights of defence of Cedest (see paragraphs 2284 to 2290 below), the content of the note shows that the Commission committed an error of assessment when, relying on the extracts from the undated internal note quoted in the contested decision stating that '... 1. Mr Seillière for the first time produced the following figures (exports to FGR, excluding Saarland): ... 3. Cedest confirmed that it would sell only to RMC... and to PZW [Wössingen] in Germany. It also agreed in future to adjust its supplies to Germany (excluding Saarland) to delivery trends in that country whether the trend is upward or downward ..., it considered that Cedest was prepared to limit its sales in Germany and adapt them to market trends (contested decision, recital 22, paragraph 7) and had 'stated to Dyckerhoff and Heidelberger that it wished to sell in Germany only to RMC and PZW and agreed in future to adjust its supplies to Germany (excluding Saarland) to delivery trends in that country, whether the trend [was] upward or downward (see memorandum of 17 November 1982, paragraph 7 of recital 22) (contested decision, recital 50, paragraph 3, second subparagraph).

2212. In that context, the Commission cannot establish the existence of an agreement to share the Saarland market in 1982 and 1983 by relying solely on what, according to the Lafarge internal note cited in the contested decision, Mr Knut Bücker-Flürenbrock attributed to Cedest's representatives.

2213. Second, the Commission does not demonstrate that an overall agreement to share the Saarland market was pursued solely on the basis of the summary record drawn up by Ciments Français on 17 May 1983 (contested decision, recital 22, paragraph 9; documents 33.126-4251 to 4253). The very most that can be inferred from that record is that there was an exchange of views between Dyckerhoff and Ciments Français concerning the Saarland market.

2214. The words used indicate that the Saarland situation was seen, by Ciments Français at least, as being different from the 'zone in which Ciments Français operated through the Luxembourg company Intermoselle, which it owned jointly with Ciments Luxembourgeois and Dyckerhoff.

2215. Thus in the second subparagraph of paragraph 1 the author of the record says of a representative of Dyckerhoff, Mr Grüner, who was to retire: 'He will continue to play an active role, however, especially concerning relations with neighbouring countries. He will therefore probably continue to be involved in one way or another in Intermoselle, Ciments Luxembourgeois and perhaps the situation in Saarland.

2216. In the second and third subparagraphs of paragraph 5 the author says: 'Mr Doumenc, [who] provided a broad account of the projects which we have agreed with CL [Ciments Luxembourgeois], revealed that we regard our position in IM [Intermoselle] as the starting point for our entire policy in the region, that, on that basis, where we are on an equal footing with DYZ [Dyckerhoff], we should reflect together on future changes in which we should be associated. Similarly, it would be desirable to be on the same side in the sector in Saarland, where there will be changes. The author of the record thus implicitly states that at that period the two producers concerned were not, or were no longer, on the same side in the sector in the Saarland market and that changes in the market situation were expected.

2217. Last, the author notes in paragraph 6 that 'DYZ [Dyckerhoff] confirmed that talks were nearing completion with CL [Ciments Luxembourgeois] to provide DYZ [Dyckerhoff] with a grinding quota of 100 000 t on CL's [Ciment Luxembourgeois's] grinding plant and for cement deliveries in the Trier region and in the Eifel. These tonnes will not a priori go to Saarland unless there is a definite economic advantage compared with the Goellheim plant which currently delivers to Saarland. The tonnes will never go to France.

2218. The Commission's interpretation of the summary record cannot be accepted. Even supposing that the words used in paragraph 6 shows that Dyckerhoff intended to inform Ciments Français that it would not alter their respective positions on the Saarland market, they do not establish the existence of an overall agreement to share the Saarland market between French and German producers.

2219. To conclude, it cannot be denied that the first two documents relied on by the Commission (Vicat's note of 22 July 1982 and the Lafarge internal note of 23 June 1982, see paragraphs 2186 to 2200 above) show that an agreement to share the Saarland market existed and operated at least until 1970, or even until 1977. However, the scope of that agreement was wider than that determined by the Commission in the contested decision, and the four documents to which it refers in that decision do not support the view that the agreement was an established and undisputed fact in 1982 and 1983. 2220. Only the existence of the agreement to share the Saarland market, as apprehended in the contested decision, is capable of affecting the legality of Article 3 (3) (a) of that decision, since the Commission regards it as one of the elements of the infringement which commenced on 23 June 1982 (see paragraphs 2172 to 2180 above).

2221. As regards the agreement to set up SST, to which the Commission refers in recital 22, paragraph 2, of the contested decision, none of the applicants concerned disputes either the existence of that company or the dates on which, according to the contested decision, it was set up and sold (recital 22, paragraph 2). Dyckerhoff claims that SST has no relevance to any question of the sharing of supplies and that its activities were confined to transporting cement in silos. Heidelberger observes that it had no influence over SST, since it had only a small shareholding in that company, and that it never used SST to transport its cement.

2222. The Commission does not state in the contested decision what role it considers that the agreement to set up SST played in the implementation of the alleged agreement to share the Saarland market. Although it states in its account of the facts (recital 22, paragraph 2) that '[t]he agreement to share the Saarland market was supported by another agreement on the setting-up of a joint cement transport company Saarlaendische Silo-Transport GmbH, the only company which the associates (Arbed, Ciments Français, Cedest, Wülfrather, Heidelberger and Dyckerhoff) would use to transport their cement to Saarland, it makes no further reference to SST in the legal assessment in establishing the existence of an agreement to share the Saarland market. In its answer to a written question put by the Court in Cases T-35-95, T-38-95, T-39-95 and T-42-95 the Commission states that it mentioned the agreement to set up SST in the context of its account of the facts, but drew no legal inference from it. It further states that Article 3 (3) (a) of the contested decision concerning the regulation of cement supplies between Germany and France does not refer to that agreement and that the agreement does not appear to have been applied during the period of the infringement found in Article 3 (3) (a).

2223. Consequently, there are no grounds for taking that agreement into consideration in order to rule on whether the agreement to share the Saarland market was a constituent element of the infringement referred to in Article 3 (3) (a) of the contested decision.

2224. It follows from all the foregoing that the Commission has failed to demonstrate the existence in 1982 and 1983 of the agreement to share the Saarland market to which it refers in the contested decision. Accordingly, there is no need to decide on the participation of the various parties in such an agreement or on the claims of Ciments Français and Heidelberger that the matters are time barred.

2225. Article 3 (3) (a) must therefore be annulled in part in so far as it finds that Dyckerhoff, SFIC, Cedest, Ciments Français, Heidelberger, Lafarge and BDZ participated in an agreement to share the Saarland market from 23 June 1982. Concerted practices between various French and German producers and associations between 1982 and 1984

2226. Dyckerhoff, SFIC, Cedest, Ciments Français, Heidelberger and Lafarge deny having in any way participated in the concerted practices which the Commission found in the contested decision. BDZ on the other hand does not devote any specific argument to the concerted practices.

2227. Before the merits of the various arguments put forward by the applicants are assessed, it is appropriate to recall the description of the concerted practices given by the Commission in the contested decision.

2228. In recital 50, paragraph 3, first subparagraph, the Commission states:

'Following the exports by Cedest to the German Länder other than Saarland and the German producers' reactions in France, bilateral consultations took place with a view to limiting cross-frontier flows of cement.

2229. The Commission then refers (same paragraph, second and third subparagraphs) to talks between SFIC and BDZ, to pressure exerted on Cedest by SFIC and the French producers concerned, to concerted action between Cedest, Dyckerhoff and Heidelberger, to concerted action between Lafarge and Dyckerhoff and to concerted action between Dyckerhoff and Ciments Français.

2230. The Commission observes (fourth subparagraph) that '[t]he problem of relations between French and German producers was discussed, as a hot spot, at the meeting of Head Delegates on 19 March 1984 (see paragraph 9 of recital 19).

2231. The Commission states (fifth subparagraph) that these various instances of collusion are 'concerted practices [which] led to the conclusion of an agreement between the French and German undertakings and associations of undertakings concerned and observes (seventh subparagraph) that those concerted practices, which took place from 1982 to 1984, constitute infringements of Article 85 (1) of the Treaty.

2232. In Article 3 (3) (a) of the operative part of the contested decision the Commission finds the existence of an infringement consisting, inter alia, of those concerted practices.

2233. In support of the contested decision the Commission relied on the content of a number of documents to establish the five concerted practices referred to in recital 50, paragraph 3, second and third subparagraphs, of the contested decision, which took place in 1982 and 1984 and had 'as their object the sharing of markets and the restriction of cross-frontier flows of cement between France and Germany (contested decision, recital 50, paragraph 4, first subparagraph) and more particularly to 'extend the agreement on the Saarland to other German Länder and to fit the agreement into the broader framework of the regulation of trade flows between France and Germany (contested decision, recital 50, paragraph 4, second subparagraph).

2234. Dyckerhoff does not deny that it took part in discussions with German and French producers in 1982 and 1983 or that it was concerned about Cedest's expanding activities in Dyckerhoff's natural market. Similarly, Heidelberger admits that there may have been contacts between French and German producers in 1982 with a view to putting a stop as soon as possible to the cross-frontier supplies which had increased at that time. However, it states that no agreement was concluded.

2235. The Court will examine each of the concerted practices found by the Commission in the order in which they are referred to in recital 50, paragraphs 2 and 3, of the contested decision.

A Talks between SFIC and BDZ

2236. In recital 50, paragraph 3, second subparagraph, of the contested decision the Commission states that talks were held between SFIC and BDZ and refers to the handwritten internal memorandum of Lafarge of 23 June 1982 (documents 33.126-6592 to 6596) mentioned in recital 22, paragraph 4, of the contested decision, but does not specify the relevant passages.

2237. SFIC disputes the Commission's interpretation of that memorandum in the contested decision, and more particularly its interpretation of the following passage, which is on the first page of that document and reports what was said by Mr Grüner of Dyckerhoff:

'1) Background:

'... then Gemalen Schäben Germany pq domestic

reaction in France. Verband [BDZ] found it very hard to see

all the more so because there was

Not dominate the partner (subsidiary)?

Talks with Fr. syn. [SFIC] and let's suppose that

tonnage increased to the point at which

the market was disrupted

CLK 25-HOZ 25 and PZ 35 mixture

by RMC. Publicity

Waited a very long time without doing anything ...

2238. SFIC considers that there is no reason to think that the talks in question were talks with BDZ and points out that the note in any event relates to events before 1982. 2239. Although this passage from the note actually refers to BDZ ('Verband) and to talks with SFIC, it appears, as SFIC says, in the context of an historical account by Mr Grüner of the events which marked relations between the French and German industries following Cedest's conduct in the 1970s. Even supposing that such references provide evidence of the existence of talks between SFIC and BDZ, they clearly relate to a period before the note in question was drawn up.

2240. The note therefore fails to establish the existence of talks between SFIC and BDZ alleged to have taken place between 1982 and 1984. 2241. Even though the Commission makes express reference only to that note when it accuses SFIC and BDZ of having colluded (contested decision, recital 50, paragraph 3, second subparagraph), it also adduces two other pieces of evidence to demonstrate that such talks took place between SFIC and BDZ, at least in 1984, when it explains the result, in its view, of the various concerted practices, namely the conclusion of an agreement in 1984. 2242. In recital 50, paragraph 3, fifth subparagraph, of the contested decision the Commission states that the letter of 22 September 1986 from the Chairman of Ciments Français and of SFIC, Mr B. Laplace, to the Chairman of Heidelberger and of BDZ, Mr P. Schuhmacher (contested decision, recital 22, paragraph 10) 'refers [inter alia] to the progress achieved as compared with 1984 at the periodic meetings between Mr Laplace, Mr Lose and Mr Brenke.

2243. At least one passage in that letter (first and second subparagraphs) confirms that meetings were held between the two associations in 1984 to deal with the problems encountered in relations between the French industry and the German industry: 'As you know I have periodic meetings with Jürgen Lose [from Dyckerhoff] and Ted Brenke [from Heidelberger]. I believe, if we look back at the situation we were faced with in 1984, that what we discussed during the course of these meetings has worked reasonably well. It is significant, moreover, that although the letter is written on Ciments Français notepaper, Mr Laplace makes particular reference to his capacity as Chairman of SFIC (fifth paragraph) and refers to the 'French parties. Similarly, he does not refer specifically at any point in his letter to the position of Heidelberger, of which Mr Schuhmacher was Chairman, but speaks of the 'German side and of the 'French and German interests. Last, the matters dealt with in the letter are within the competence of a national trade association, since they refer to relations between the industries of two different countries.

2244. The Commission also refers to the discussions at the Cembureau Head Delegates meeting on 19 March 1984 in footnote 100 and in recital 50, paragraph 3, subparagraph 4, of the contested decision.

2245. As the Commission points out in footnote 100, it follows from the memorandum to the Chairman dated 15 March 1984, concerning the meeting of Cembureau Head Delegates on 19 March 1984 (documents 33.126-11728 and 11729), referred to in recital 19, paragraph 9, of the contested decision, that exports from France to Germany were seen by the meeting as still being a 'hot spot. Both SFIC and BDZ participated in that meeting, the former represented by Mr Collomb and the latter by Mr A. von Engelhardt (recital 19, paragraph 8).

2246. The memorandum of 15 March 1984 states that exports from France to Germany were to be discussed and that the discussions did not concern traditional or even structural trade between those two Member States.

2247. Thus item 2, entitled 'Situation on the European markets, states, in particular:

' Comments on the table showing imports and exports of member countries.

It will be noted that the discussions will not concern traditional or even structural inter-state trade, e.g. exports from Germany and Belgium to the Netherlands.

The hot spots are still:

Exports from Germany to the United Kingdom and Ireland;

Exports from France to Germany;

Exports from Spain to Ireland and the United Kingdom.

A new hot spot is exports from Italy to Switzerland.

Participants will then be asked to comment round the table.

2248. The fact that there is no reference to discussions concerning Franco-German relations at the meeting of 19 March 1984 in the notes on the meeting dated 2 April 1994 (documents 33.126-11733 to 11737), cited in recital 19, paragraph 10, of the contested decision, does not deprive the information in the memorandum of 15 March 1984 concerning discussions between SFIC and BDZ in 1984 of all probative force.

2249. The conclusion reached in the notes on the meeting that '[p]ressure from inter-member trade had slackened considerably through improved bilateral contacts confirms that, as indicated in the two abovementioned paragraphs from Mr Laplace's letter of 22 September 1986 to Mr Schuhmacher (see paragraph 2243 above), bilateral contacts took place in any event between the French industry and the German industry in 1984. The reference in the memorandum of 15 March 1984 to exports from France to Germany and the fact that SFIC and BDZ were present at the meeting on 19 March 1984 therefore attest to the fact that the two associations did hold talks at that time.

2250. Finally, the content of the documents presented in the contested decision not only gives reason to conclude that talks were held between the two national associations, SFIC and BDZ, at least in 1984, but also shows that the subject-matter of those talks concerned the special situation of relations between the industries of both the countries concerned, and in particular the attempts to limit or regulate exports from one country to the other. The anti-competitive nature of the subject-matter of the talks in which the two associations were involved is therefore established. Moreover, subject to proof to the contrary, which it was for the associations to adduce (Commission v Anic, cited in paragraph 270 above, paragraph 121, and Hüls v Commission, cited in paragraph 155 above, paragraph 162), it must be held that the talks between SFIC and BDZ influenced their conduct and that of their members concerned by trade between France and Germany.

2251. It follows from the foregoing (paragraphs 2236 to 2250) that the Commission was entitled to find that there was a concerted practice between SFIC and BDZ contrary to Article 85 (1) of the Treaty. However, the contested decision does not contain any evidence to show that the concerted practice existed before 1984.It follows that Article 3 (3) (a) must be annulled in so far as it finds that there were unlawful talks between SFIC and BDZ before 1984. B Pressure exerted on Cedest by SFIC and the other French producers concerned

2252. The Commission infers from the internal memorandum of Lafarge of 23 June 1982 (contested decision, recitals 22, paragraph 4, and 50, paragraph 3, second subparagraph; document 33.126-6592 to 6596) that following concerted action, whose objective was to limit cross-frontier flows of cement, the SFIC and the other French producers concerned exerted pressure on Cedest to restrain its exports to Germany.

2253. In recital 50, paragraph 3, of the contested decision the Commission does not indicate precisely the part of that memorandum from which it drew that inference.

2254. In recital 22, paragraph 16, however, it cites the following passage (p. 3 of the memo):

'The industry (Syndicat) and Lafarge in particular applied their full weight when: unregulated competition (Kerpen).

Ground slag dangerous for mixtures.

2255. When placed in the context of the discussions described in the memo, this passage shows that pressure was actually exerted on Cedest. The pressure was anti-competitive in nature: the passages which precede the one set out above show that the purpose of the pressure was to induce Cedest to put a stop to its aggressive commercial policy in Germany and to respect the 'home market principle (the expression found on p. 2 of the memo).

2256. As regards those responsible for the pressure, the Commission refers to SFIC and 'the other French producers concerned (contested decision, recital 50, paragraph 3, second subparagraph), namely Lafarge and Ciments Français.

2257. SFIC maintains that in the SO the Commission, relying on an extract from the Lafarge internal memorandum of 23 June 1982, criticised it only for having held talks with BDZ. That document does not mention the existence of pressure exerted on Cedest.

2258. It must be pointed out that the information provided in the SO does not identify SFIC as one of those responsible for bringing pressure to bear on Cedest. After citing the extract from the Lafarge internal memorandum of 23 June 1982 concerning the talks between SFIC and BDZ, the Commission states that '[t]he memorandum goes on to refer to pressure brought to bear by Lafarge and Ciments Français on Cedest (SO, paragraph 12, p. 25). Nor is SFIC criticised elsewhere in the SO for having participated in the pressure on Cedest referred to in the Lafarge memorandum of 23 June 1982. Consequently, the description of this objection in the SO was not worded in such a way that SFIC could be aware that it was accused of the conduct in question. The exercise of its rights of defence was therefore affected. Consequently, Article 3 (3) (a) of the contested decision must be annulled in so far as it finds that SFIC participated in a concerted practice designed to exert pressure on Cedest.

2259. As regards Lafarge, it is sufficient to observe that the passage from its internal memorandum of 23 June 1982, cited in paragraph 2254 above, to the effect that 'the industry (Syndicat) and Lafarge in particular applied their full weight ..., reproduces what was said by Mr Collomb, who specifically represented Lafarge's interests. The passage clearly shows that Lafarge brought pressure to bear on Cedest, whatever the effect it may have had on Cedest's conduct. It follows that Lafarge's participation in the conduct referred to in recital 50, paragraph 3, of the contested decision was established in the decision.

2260. Nor does Lafarge devote any specific argument to the abovementioned passage. It merely states that its internal memorandum reveals only that its good offices were sought in the dispute provoked by Cedest and that, as the other documents referred to in recital 22 of the contested decision bear out, there was continuing disagreement among the various parties concerned, which precluded any concerted action or cooperation susceptible of being classified as a concerted practice within the meaning of case-law (Case 48-69 ICI v Commission, cited in paragraph 636 above, paragraph 64, and Case T-2-89 Petrofina v Commission [1991] ECR II-1087, paragraphs 214 and 215). In that regard, Lafarge also relies on the content of its internal memorandum concerning a meeting between Cedest, Dyckerhoff and Heidelberger on 17 November 1982 (contested decision, recital 22, paragraph 7) and a summary record drawn up by Ciments Français on 17 May 1983 (contested decision, recital 22, paragraph 9), which show that Cedest did not alter its conduct or withdraw from the German market.

2261. It should be pointed out, however, that even supposing that Lafarge's interpretation of its internal memorandum of 23 June 1982 is correct, it cannot be described as complete. The fact that it was approached to settle the dispute provoked by Cedest does not weaken the evidence that there was in fact concerted action with Ciments Français in particular. Nor does it preclude the possibility that it exerted some pressure on that occasion. The fact that Lafarge holds shares in Cedest is even of such a kind as to confirm the reality of the pressure described in its own internal memorandum of 23 June 1982. The illegal nature of the concerted action aimed at exerting pressure on Cedest has been established (see paragraph 2255 above).

2262. Furthermore, the Commission did not allege that Cedest altered its commercial conduct following the pressure brought to bear by SFIC and the other French producers concerned. In that regard, it merely demonstrated that the exercise of that pressure, following concerted action, was designed to compel Cedest to alter its conduct (see paragraph 2255 above), which is sufficient to find that it was unlawful for the purposes of Article 85 (1) of the Treaty (see the case-law cited in paragraph 1674 above). The argument which Lafarge bases on Cedest's conduct after pressure had been brought to bear on it is therefore irrelevant.

2263. In any event, it is necessary to reject Lafarge's argument, first, that it had no interest in exerting any pressure whatsoever on Cedest, having regard to the special features of its situation and that of its German subsidiary Wössingen on the market, and, second, that the 'oil stain ('tache d'huile) economic theory, which the Commission used to prove the existence of a Franco-German agreement, does not explain Lafarge's competitive conduct in Germany, where Wössingen's sales increased between 1976 and 1991; moreover, that theory cannot be applied to regional markets scattered throughout the territory.

2264. It should be observed that, contrary to what Lafarge claims, the existence of the concerted action designed to bring pressure to bear on Cedest is established not on the basis of an economic analysis of the market, in the light of an 'oil stain theory, but on that of specific documentary evidence coming from Cedest itself. The question whether Lafarge had or did not have any 'interest in bringing pressure to bear on Cedest is therefore irrelevant, since the existence of such pressure has been properly established. Nor is it contradictory for an undertaking to participate in a bilateral agreement designed to ensure respect for home markets and at the same time to seek to strengthen its local subsidiary in a territory concerned by that agreement. That observation also applies to all the concerted actions in which Lafarge is alleged to have participated (see paragraphs 2295 to 2315 and 2331 to 2442 below).

2265. Moreover, a number of items contradict Lafarge's argument. It may be seen, first, that it was preoccupied with the state of Franco-German relations, since a number of documents show that it participated in discussions on that subject (internal memorandum of 23 June 1982 (contested decision, recital 22, paragraph 4; documents 33.126-6592 to 6596), in which its representative, Mr Collomb, referred in particular to the existence of the 'home market principle; undated internal note concerning a meeting between Cedest, Dyckerhoff and Heidelberger on 17 November 1982 (contested decision, recital 22, paragraph 7; documents 33.126-6582 and 6583); letter of 28 July 1982 from Mr C. Hummel, of Dyckerhoff, to Mr Collomb, of Lafarge (contested decision, recital 22, paragraph 5; documents 33.126-6597 to 6599) and internal note by Lafarge of 2 September 1982, drawn up by Mr Marichal for Mr Collomb (contested decision, recital 22, paragraph 6; document 33.126-6584)). Then, as the Commission points out in the contested decision, Lafarge had a special interest in taking part in the discussions on Franco-German relations in view of the position of its German subsidiary Wössingen (recital 22, paragraph 13, third and fourth subparagraphs). Last, as the Commission also observes in the contested decision (recital 22, paragraph 13, second subparagraph), even if Lafarge's position were not entirely comparable to that of other French producers, owing to the location of its plants, it was not protected from the consequences of competition between French and German producers in its own trading area, since there was a risk that the conflict provoked by Cedest's attitude in the German market would spread in the event of reprisals on the part of the German producers.

2266. Furthermore, Lafarge's attempt to rely on its own internal memoranda of 6 August 1982 (documents 33.126-7522 to 7524) and 7 January 1983 (documents 33.126-7514 to 7516) is inadmissible under Article 48 (2) of the Rules of Procedure, since it relied on them for the first time at the hearing.

2267. In any event, the existence and the content of those two internal memoranda in reality confirms the interest which Lafarge showed in the problems raised by Cedest's conduct in Germany, more particularly because of Lafarge's presence within Wössingen.

2268. The memorandum of 6 August 1982, drawn up by Mr Marichal and entitled 'LC [Lafarge] strategy in Germany Cedest affair, consists of three separate parts: A. Forces present, B. Foreseeable movements and C. Proposed action.

2269. In point 3 of part A the author notes that Wössingen 'like others is affected by C.'s [Cedest's] inroads.

2270. The five points in part C also show that Lafarge felt concerned by Cedest's conduct in Germany:

'1. Refuse so-called concerted action with the two large German producers without Cedest, which can only cause LC [Lafarge] setbacks.

2. Maintain position. we shall only come if Cedest invites us. In France, where there are minority shareholdings, that is the way it is done.

3. Do not accept even the concept of compensation given to PZW [Wössingen] on an undertaking by Cedest not to attack any more which would probably not be complied with (a fool's game) and consequently avoid the slippery slope of ... (thus killing two birds with one stone).

4. Exert a form of blackmail on Cedest: more than CK if no brakes RMC-Ludwig why refrain from using the only means of pressure that seems to be available?

in practice JM [Mr J. Marichal] tf [no doubt meaning telephone] write to B.R. [Mr B. Renard of Cedest] to insist on having the result of the enquiry which he promised L.M. and say that we are relying heavily on his intervention with RMC

no ... CK to Cedest if no result

Otherwise we are pleasing an enemy (or rather a competitor) of W [Wössingen]

in refusing those whom W [Wössingen] we must try to manage without it costing us anything

5. Tell Cedest (orally) that we shall not be the inquisitors in the proceedings brought against them in Germany.

2271. The internal memorandum of 7 January 1983 shows that the Lafarge management were anxious to ascertain the content of the discussions held in Lafarge's absence between Cedest and the German producers Dyckerhoff and Heidelberger at a meeting on 17 November 1982. 2272. Turning last to Ciments Français, it must be stated that the extract from the internal Lafarge memorandum of 23 June 1982 cited in paragraph 2254 above does not expressly mention Ciments Français, although in the SO (paragraph 12, p. 25) the Commission expressly accuses it of bringing pressure to bear on Cedest.

2273. Ciments Français claims that the memorandum in issue provides no grounds for concluding that it participated in discussions about Cedest's sales in Germany, still less in bringing pressure to bear on Cedest.

2274. None the less, it follows from the content of that memo, examined in the light of the content of the internal Ciments Français memorandum of 25 January 1983 (documents 33.126-4254 to 4256), cited in recital 22, paragraph 8, of the contested decision, and the summary record drawn up by Ciments Français on 17 May 1983 (contested decision, recital 22, paragraph 9; documents 33.126-4251 to 4253), that the Commission was correct to take the view that, in the context of concerted action whose objective was to limit cross-border trade in cement, Ciments Français brought pressure to bear on Cedest.

2275. In that regard, it should be observed, first, that although Ciments Français is not actually mentioned by name in the extract from the internal Lafarge memorandum of 23 June 1982 concerning pressure on Cedest (see paragraph 2254 above) and although that memorandum describes, in the Commission's own words, a discussion between the representatives of Lafarge and Dyckerhoff (contested decision, recital 22, paragraph 4), the author refers to the 'ind. (Syn), that is to the French industry, of which Ciments Français indisputably then formed part. Furthermore, Ciments Français is mentioned later in the memo, where reference is made to its influence on Cedest, in the following words: 'CF [Ciments Français] we know that it has less influence on Cedest than L [Lafarge]. Also delivery prices to RMC are below French prices. BC put the ball in Ciments Français's court. As the Commission observed in its answer to a written question put by the Court in Case T-39-95, the reference to Ciments Français can only be explained by its involvement in the earlier discussions to which the memorandum refers.

2276. Next, it follows from the Ciments Français memorandum of 25 January 1983 and its summary record of 17 May 1983 that Ciments Français was still involved in 1983 in the discussions on Cedest's conduct in Germany. Both documents thus indicate that it participated in discussions with Dyckerhoff on the restriction of Cedest's sales in Germany and the retaliatory measures which Dyckerhoff intended to take against Cedest. Even though those documents are relied upon in the contested decision to support the existence of a different concerted practice, between Ciments Français and Dyckerhoff (see paragraphs 2316 to 2330 below), they confirm Ciment Français's involvement in the concerted action pursuant to which pressure was brought to bear on Cedest by the French industry, as indicated by the Lafarge memorandum of 23 June 1982 (see preceding paragraph). Subject to proof to the contrary, which it was for Ciments Français to adduce (Commission v Anic, cited in paragraph 270 above, paragraph 121, and Hüls v Commission, cited in paragraph 155 above, paragraph 162), it must be held that the concerted action in question influenced its conduct in trade between France and Germany.

2277. Ciments Français cannot plead lack of interest in Cedest's sales in the Palatinate on the grounds that it was not present in that area, controlled no German producer, did not own shares in Cedest and was not involved in the proceedings brought by the Bundeskartellamt in relation to southern Germany. Ciments Français further points out that it did not have access to the file relating to that national cartel during the administrative procedure.

2278. As the Commission correctly observed in its submissions in Case T-39-95, that argument is irrelevant, since what is at issue is not an agreement to share sales in the Palatinate market but pressure brought to bear to prevent the German producers, who were irritated by Cedest's conduct, from adopting retaliatory measures against the French regions in which Ciments Français was present, for example eastern France, and the only German region where Ciments Français confirms that it was present, Saarland. Moreover, neither in the SO nor in the contested decision did the Commission find that Ciments Français participated in the infringement found in Article 3 (3) (a) of the contested decision on the ground that it participated in a national cartel relating to southern Germany which may have been found to exist by the Bundeskartellamt or any other authority.

2279. Nor can Ciments Français find support in the internal Lafarge note concerning a meeting between Cedest, Dyckerhoff and Heidelberger on 17 November 1982 (contested decision, recital 22, paragraph 7; documents 33.126-6582 and 6583) for its argument that it did not participate in bringing pressure to bear on Cedest. Even supposing, as Ciments Français claims, that the note records discussions relating exclusively to Cedest's conduct in the Palatinate, the content of the note has no effect whatsoever on the evidence that Ciments Français participated in bringing pressure to bear on Cedest, since that evidence is in another document, the Lafarge memorandum of 23 June 1982 (contested decision, recital 22, paragraph 4; documents 33.126-6592 to 6596). Furthermore, the note relating to the meeting held on 17 November 1982 does not anywhere mention Ciments Français.

2280. Accordingly, it follows that the Commission has shown that Lafarge and Ciments Français brought pressure to bear on Cedest to reduce its sales in the German market. On the other hand, because SFIC's rights of defence were infringed during the administrative procedure (see paragraphs 2257 and 2258 above), its participation in the exercise of such pressure has not been lawfully established.

2281. Moreover, it is established that the pressure in question was anti-competitive (see paragraph 2255 above).

C Concerted action between Cedest, Dyckerhoff and Heidelberger

2282. The Commission infers the existence of this concerted action from an internal handwritten note by Lafarge recording a meeting between Cedest, Dyckerhoff and Heidelberger on 17 November 1982, during which the parties concerned discussed Cedest's sales in Germany (contested decision, recitals 22, paragraph 7, and 50, paragraph 3, second subparagraph; documents 33.126-6582 and 6583).

2283. None of the three parties concerned has denied that the meeting took place on 17 November 1982 or that it was present at the meeting. Although they do not dispute the subject-matter of the discussions which took place at the meeting, all three claim that, in spite of that particular subject-matter, it did not constitute conduct contrary to Article 85 (1) of the Treaty, either because the discussions consisted purely in the communication of an undertaking given by Cedest to Dyckerhoff and Heidelberger, or because they were not followed up, or because it is evident from the handwritten note that Cedest did not give a favourable response to the requests that it give an undertaking, or again because, since Cedest did not agree to the producers' request to cease its aggressive sales policy in Germany, or even contemplate adopting a course of conduct consistent with that request, the attempt was at the very most unilateral and did not in any event constitute a concerted practice contrary to Article 85 (1) of the Treaty, which requires, at least, concerted action between two people.

2284. As indicated in paragraph 2205 above, in its observations of 7 January 1998 concerning access to the Commission file which it had been granted following the measure of 18 and 19 June 1997, Cedest relied, in order to establish that it had continued to act independently in Germany, in particular, on the content of an internal note of Lafarge of 7 January 1983 (documents 33.126-7514 to 7516), to which it had not been given access during the administrative procedure.

2285. That internal memorandum is at variance with the content of the Lafarge note concerning the meeting on 17 November 1982 referred to in the contested decision (recital 22, paragraph 7) as regards what was said by Cedest's representatives at that meeting (see paragraphs 2203 to 2210 above).

2286. It is clear, therefore, that that note could have proved useful to Cedest in the exercise of its rights of defence during the administrative procedure (see paragraph 247 above). The administrative procedure might have had a different outcome had Cedest had access to that document before the contested decision was adopted, having regard to its impact on the evidential value of the note describing the meeting on 17 November 1982. 2287. The note of 7 January 1983 contradicts the content of the only document evidencing Cedest's participation in the concerted practice with Dyckerhoff and Heidelberger referred to in Article 3 (3) (a) of the contested decision.

2288. Since the concerted practice with Dyckerhoff and Heidelberger is the only one referred to in Article 3 (3) (a) of the contested decision in which Cedest is alleged to have participated, that provision must be annulled as against Cedest, in so far as it establishes that Cedest participated in concerted practices involving the regulation of cement supplies from France to Germany and from Germany to France.

2289. In any event, it should be reiterated that the content of the note of 7 January 1983 shows that the Commission committed an error of assessment when it considered that 'Cedest was prepared to limit its sales in Germany and adapt them to market trends (contested decision, recital 22, paragraph 7) and that 'Cedest stated to Dyckerhoff and Heidelberger that it wished to sell in Germany only to RMC and PZW and that it agreed in future to adjust its supplies to Germany (excluding Saarland) to delivery trends in that country, whether the trend is upward or downward (see memorandum of 17 November 1982, paragraph 7 of recital 22) (contested decision, recital 50, paragraph 3, second subparagraph) (see paragraph 2211 above).

2290. The Commission cannot claim, as it did at the hearing in Case T-38-95, that it also relies on certain passages in the internal Lafarge memorandum of 23 June 1982 (contested decision, recital 22, paragraph 4; documents 33.126-6592 to 6596). That memorandum makes no mention of specific meetings or undertakings given to German producers by Cedest at such meetings. The most that can be inferred from the passage worded '... H. Since 1980 we have constantly told our French colleagues not to accept Cedest (81). ... is that the person making that remark, from Dyckerhoff, was referring to contacts between Dyckerhoff and Cedest in 1981. Apart from the fact that the reference was to events which, even on the assumption that they had actually occurred, did so before the period of the infringement found in Article 3 (3) (a) of the contested decision, the Commission made no mention in that decision either of the existence of those contacts between Dyckerhoff and Cedest or of their content.

2291. However, the infringement of Cedest's rights of defence resulting from the infringement of its right to have access to the Commission's file during the administrative procedure, the absence of any evidence that it participated in a concerted practice with Dyckerhoff and Heidelberger on 17 November 1982 and the consequences flowing therefrom do not mean that the findings which the Commission based on the content of the internal Lafarge note referred to in recital 22, paragraph 7, of the contested decision in relation to Dyckerhoff and Heidelberger are unlawful.

2292. Apart from the fact that in their observations on the access to the file which was granted following the measures of organisation of procedure adopted by the Court (see paragraphs 2446, 2447, 2461 and 2462 below) neither of those parties asserted that the internal Lafarge note of 7 January 1983 was relevant, they did not deny having attempted in concert at the meeting on 17 November 1982 to secure undertakings from Cedest. In their case that meeting therefore had an anti-competitive object, since the purpose of that contact between two competitors on the market, Dyckerhoff and Heidelberger, was to influence by common agreement the conduct on the market of an actual or potential competitor (see, in that regard, Suiker Unie and Others v Commission, cited in paragraph 651 above, paragraph 174; Rhône-Poulenc v Commission, cited in paragraph 1053 above, paragraph 121; BASF v Commission, cited in paragraph 1852 above, paragraph 240, and Hercules Chemicals v Commission, cited in paragraph 140 above, paragraph 258). Subject to proof to the contrary, which it was for Dyckerhoff and Heidelberger to adduce (Commission v Anic, cited in paragraph 270 above, paragraph 121, and Hüls v Commission, cited in paragraph 155 above, paragraph 162), it must be held that the concerted action between those two undertakings relating to Cedest's conduct in Germany influenced their conduct in trade between France and Germany.

2293. Heidelberger cannot deny having participated in that concerted practice by relying on the internal memoranda of Lafarge of 23 June and 2 September 1982 (contested decision, recital 22, paragraphs 4 and 6; documents 33.126-6592 to 6596 and 6584), which describe discussions between Lafarge and Dyckerhoff. Apart from the fact that it relies on those two memoranda in order to show that it did not participate in an agreement or concerted action with Lafarge and Dyckerhoff, which the Commission did not allege in the contested decision, the content of the two internal memoranda of Lafarge provides no details of the meeting on 17 November 1982 during which Heidelberger and Dyckerhoff sought to convince Cedest to alter its conduct in Germany.

2294. It follows that the evidence presented by the Commission in the contested decision (recital 22, paragraph 7) justified its conclusion that Dyckerhoff and Heidelberger had infringed Article 85 (1) of the Treaty at the meeting with Cedest on 17 November 1982 (contested decision, recital 50, paragraph 3, second subparagraph). The content of the internal memorandum of Lafarge of 7 January 1983, which contradicts the terms of the memorandum referred to in the contested decision solely as regards Cedest's conduct, does not alter that fact.

D Concerted action between Lafarge and Dyckerhoff

2295. The Commission finds the existence of concerted action between Lafarge and Dyckerhoff on the basis of three documents: a handwritten internal memorandum dated 23 June 1983 by Lafarge (documents 33.126-6592 to 6596) cited in recital 22, paragraph 4, of the contested decision, a letter of 28 July 1982 from Mr Hummel, of Dyckerhoff, to Mr Collomb, of Lafarge (documents 33.126-6597 to 6599), cited in recital 22, paragraph 5, of the contested decision, and an internal handwritten note by Lafarge dated 2 September 1982 (document 33.126-6584), cited in recital 22, paragraph 6, of the contested decision. Those three documents lead the Commission to take the view that 'Lafarge and Dyckerhoff endeavoured to prevent any aggressiveness and to establish a climate of harmony between the French and German producers involved in exports (contested decision, recital 50, paragraph 3).

2296. As indicated in paragraph 2234 above, Dyckerhoff acknowledges that discussions took place between German and French producers in 1982 and 1983 but makes no specific comment in relation to the three documents presented by the Commission. It merely points out that even if the object of the discussions in question was to encourage Cedest to abandon its aggressive sales policy in Germany, they cannot constitute concerted practices since Cedest did not agree to do as they wished.

2297. That submission must be rejected. Although the discussions undertaken by Dyckerhoff and Lafarge were actually aimed at inducing Cedest, by one means or another, to cease its particular conduct in Germany, they had an anti-competitive object. Subject to proof to the contrary, which it was for Dyckerhoff and Lafarge to adduce (judgments in Commission v Anic, cited in paragraph 270 above, paragraph 121, and Hüls v Commission, cited in paragraph 155 above, paragraph 162), it must be held that the concerted action between those two undertakings influenced their conduct in trade between France and Germany. Such concerted action constitutes an infringement of the prohibition in Article 85 (1) of the Treaty (see the case-law cited in paragraph 2292 above).

2298. In the present case the anti-competitive nature of the discussions between Dyckerhoff and Lafarge results specifically from the three documents to which the Commission refers in the contested decision.

2299. Thus the internal memorandum of 23 June 1982 by Lafarge describes a meeting between representatives of Lafarge and Dyckerhoff during which Cedest's conduct and its effects on Franco-German relations were discussed. The memorandum also expressly refers to the principle of respect for home markets, in the following words: 'Home market principle OK. But is it easily complied with In Belgium? Should perhaps be reviewed at frontier level but not without agreement. Where do we stand with regard to Cedest?

2300. Similarly, in his letter of 28 July 1982, Mr Hummel, of Dyckerhoff, says: 'And as we are frankly exchanging ideas, I should like to add today that, in our opinion, true cooperation could have positive effects not only as regards your majority holding in Wössingen but especially on Cedest. It should be possible to resolve existing problems through a fundamentally positive attitude on the part of all the participants, in view of the composition of the Cedest and Lafarge administrative boards.

2301. Lastly, in the internal note by Lafarge dated 2 September 1982 the author, Mr Marichal, describing a telephone conversation with Mr Grüner, of Dyckerhoff, on the same day states, in particular: 'I replied that first of all it was absolutely essential to explore all the possibilities of direct negotiation with Cedest and then, as you had already said, to seek a meeting with the Chairman of Cedest, in which you would be prepared to take part if invited by the Chairman of Cedest. I also said that I considered it too soon to organise a meeting with the German producers affected by Cedest's aggression to discuss what each of them can or cannot tolerate, as long as the talks with Cedest had not taken place ... Finally, and still in German, he gave a very good summary of what he took to be our position: No general meeting, but an essential talk between Dyckerhoff (with or without Heidelberger) and the Chairman of Cedest before any other meeting. 2. A meeting with the German producers affected, after the talks, so as to some extent to share the sacrifices if an agreement has been concluded.

2302. Lafarge claims that the content of the three documents shows that there was persistent disagreement between the various parties concerned.

2303. First, while it acknowledges that its internal memorandum of 23 June 1982 refers to the discussions which it had with Dyckerhoff, it claims that the memorandum contains no trace of any agreement concluded between it and Dyckerhoff. The memorandum establishes only that Lafarge's intervention was approved in the context of a conflict provoked by Cedest's conduct in Germany.

2304. The Court points out that the mere fact that Lafarge acknowledges that its memorandum of 23 June 1982 provides an accurate account of discussions which it had with Dyckerhoff and that those discussions related to Cedest's conduct in Germany, which is already quite plain from the content of that document, shows that it thereby participated in concerted action contrary to Article 85 (1) of the Treaty. It is irrelevant whether Lafarge complied with the alleged requests made by Dyckerhoff, since the content of the internal memorandum shows that those two producers informed one another of conduct which they envisaged adopting in response to Cedest's own conduct. Subject to proof to the contrary, it must be held that the discussions between those two undertakings influenced their conduct in trade between France and Germany, so that their attitude constitutes a concerted practice within the meaning of Article 85 (1) of the Treaty (see the case-law cited in paragraph 2292 above).

2305. It is also necessary to reject Lafarge's argument that the reference to 'Home market principle OK in its memorandum of 23 June 1982 concerned the natural markets theory based on the weight of cement. As the Commission correctly pointed out, if the cement market were actually determined naturally because of the weight of the product in question there would be no need to ensure compliance with such a rule relating to the natural organisation of the market.

2306. Second, Lafarge maintains that the letter of 28 July 1982 from Mr Hummel, of Dyckerhoff, is at the very most an invitation to enter into talks, which is not susceptible of infringing Article 85 (1) of the Treaty.

2307. It must be pointed out, however, that the letter in question states that it is in reply to a letter of 8 July 1982 from Lafarge. It also refers to a meeting between the representatives of Dyckerhoff and Lafarge. Those factors already preclude the hypothesis of an isolated initiative by Dyckerhoff which would absolve Lafarge in so far as it merely constituted an invitation to enter into talks. It also follows from Dyckerhoff's letter that both producers were 'frankly exchanging ideas (see extract reproduced in paragraph 2300 above). Consequently, even if the objective pursued by Mr Hummel was actually to secure Lafarge's intervention with the Cedest administrative board, it is the case that Lafarge discussed with Dyckerhoff the situation in Germany resulting from Cedest's conduct. That conclusion is confirmed by the internal memorandum of 23 June 1982 from Lafarge, which describes a meeting between those two producers one month previously.

2308. Third, Lafarge claims that it follows from its internal note of 2 September 1982 that it was unable to exercise any influence over Cedest and that it had refused to participate in a general meeting.

2309. That argument must also be rejected.

2310. Contrary to what Lafarge claims, the content of its note does not indicate that it was unable to exercise any influence on Cedest. The author of the note, Mr Marichal, stated: 'L [Lafarge] could not in any way impose its viewpoint on Cedest. The subtle difference between imposing a viewpoint and exercising influence leaves scope for conduct on Lafarge's part which was anti-competitive, since its purpose was to interfere with the way in which another economic operator on the market, Cedest, determined its conduct. Moreover, contrary to what Lafarge would have the Court believe, Mr Marichal did not consider that any initiative by Lafarge against Cedest was then inevitably doomed to fail. On the contrary, it is apparent from the note that Lafarge was prepared, on certain conditions, to take action to implement the steps undertaken against Cedest. The note states: 'I replied that first of all it was absolutely essential to explore all the possibilities of direct negotiations with Cedest and then, as you had already said, to seek a meeting with the Chairman of Cedest, in which you would be prepared to take part if invited by the Chairman of Cedest.

2311. Lafarge therefore informed Dyckerhoff that it was prepared to intervene, albeit on certain conditions, notwithstanding that it had acknowledged that it was unable to impose its viewpoint on Cedest.

2312. Nor can Lafarge claim that the content of its note of 2 September 1982 expresses its refusal to participate in a general meeting. Apart from the finding made in the preceding paragraph, it is evident from that note that during the telephone conversation which it describes Mr Marichal set out the reasons why in Lafarge's view it was too soon to organise such a meeting and why it was first essential to explore all possibilities of direct negotiations with Cedest. It is apparent, therefore, that Lafarge and Dyckerhoff discussed the most appropriate way of settling the dispute provoked by Cedest's conduct. What Lafarge's representative said was not therefore the expression of a categorical refusal to participate in a general meeting of the various parties concerned by Cedest's conduct in Germany.

2313. Furthermore, the arguments which Lafarge derives from the particular circumstances of its own and its subsidiary Wössingen's positions on the market must again be rejected, for the reasons set out in paragraphs 2263 to 2265 above.

2314. It follows that, although, as Lafarge observes, good relations between French and German management are not in themselves contrary to Article 85 (1) of the Treaty, the content of the three documents on which the Commission relies in the contested decision establishes that Dyckerhoff and Lafarge acted in concert with a view to preventing any aggressiveness and establishing a climate of harmony between the French and German producers (contested decision, recital 50, paragraph 3, third subparagraph ).

2315. Moreover, the foregoing considerations confirm that the Commission did not accuse Heidelberger of having participated in an agreement or a concerted practice with Dyckerhoff and Lafarge on the basis of Lafarge's memoranda of 23 June and 2 September 1982 (see paragraph 2293 above).

E Concerted action by Dyckerhoff and Ciments Français

2316. The Commission infers the existence of concerted action by Dyckerhoff and Ciments Français from two documents, an internal Ciments Français memorandum dated 25 January 1983 (contested decision, recital 22, paragraph 8; documents 33.126-4254 to 4256) and a summary record drawn up on 17 May 1983 by Ciments Français concerning a meeting between Dyckerhoff and Ciments Français on 9 and 10 May 1983 (contested decision, recital 22, paragraph 9; documents 33.126-4251 to 4253)). Those two documents lead the Commission to take the view that 'Dyckerhoff informed Ciments Français of its plans for dealing with the competition from Cedest and its intention not to sell in France (contested decision, recital 50, paragraph 3, third subparagraph).

2317. Dyckerhoff acknowledges again that discussions between German and French producers took place in 1982 and 1983 but makes no specific comment in relation to the two documents to which the Commission refers (see paragraph 2234 above). Dyckerhoff merely observes that the discussions in question cannot constitute a concerted practice, since they led to no specific result. It analyses the Ciments Français summary record only in connection with the objection alleging an agreement to share the Saarland market. In that regard, Dyckerhoff states that it is not to be inferred from that document that it expressed the intention not to sell in France cement which had been ground at the Ciments Luxembourgeois plant. Point 6 of the summary record merely states that Dyckerhoff explained that it intended to use its grinding quota to supply its customers in the Trier region and in the Eifel.

2318. Ciments Français considers that Dyckerhoff's reference to Cedest's conduct at the meetings to which the two documents relied upon in the contested decision relate, one of which refers to the Luxembourg company Intermoselle, cannot constitute evidence of its participation in a concerted practice. Those documents do not reveal any intention on its part, but show that it merely played a passive role in the matter. Such a passive role does not serve to show, in accordance with the requirements of case-law (Petrofina v Commission, cited in paragraph 2260 above, paragraphs 214 and 215), that the information provided to Ciments Français was part of a relationship which involved the exchange of information. Ciments Français again emphasises that it was not present in the Palatinate market in which Cedest was active, having regard to the special features of its industrial capacity.

2319. The arguments put forward by Dyckerhoff and Ciments Français must be rejected.

2320. First, neither undertaking claims that the content of the summary record drawn up by Ciments Français on 17 May 1983 does not give a faithful account of the discussions which actually took place on 9 and 10 May 1983. 2321. Second, items 6 and 7 of the record state:

'6. DYZ [Dyckerhoff] confirmed that talks were nearing completion with CL [Ciments Luxembourgeois] to provide DYZ with a grinding quota of 100 000 t on CL's [Ciments Luxembourgeois's] grinding plant and for cement deliveries in the Trier region and in the Eifel. These tonnes will not a priori go to Saarland unless there is a definite economic advantage compared with the Goelheim plant which currently delivers to Saarland. The tonnes will never go to France.

7. DYZ [Dyckerhoff] described its difficulties on the German market following the commercial aggression shown by Cedest on this market, and the measures it had taken and planned to take to deal with the competition.

2322. It is apparent from item 6 that Dyckerhoff stated during its discussions with Ciments Français that cement deliveries in the Trier region and in the Eifel, which at the time were the subject of talks with Ciments Luxembourgeois, would not a priori go to Saarland and would never go to France. Since Ciments Français has stated that it was present in Saarland and in eastern France, Dyckerhoff therefore informed it of conduct on the market which it proposed to adopt in future and took care to point out that it would avoid the areas in which Ciments Français was active. Ciments Français agreed to discuss the matter. A discussion on the future conduct of at least one of the two operators concerned, in point of fact Dyckerhoff, constitutes a concerted practice prohibited by Article 85 (1) of the Treaty, because, subject to proof to the contrary, which it was for the undertakings concerned to adduce, it must be held that their concerted action influenced their conduct in trade between France and Germany (see the consistent line of decisions cited in paragraph 2292 above).

2323. Contrary to what Ciments Français claims, the discussions on the destination of the quantities ground at the Ciments Luxembourgeois plant did not relate solely to deliveries of cement produced from clinker supplied by Intermoselle, since, as the Commission observes in the contested decision (recital 22, paragraph 15, third subparagraph), the record of the meeting states that the discussions concerned cement destined for the Trier region or the Eifel.

2324. The anti-competitive nature of the discussions between Dyckerhoff and Ciments Français on 9 and 10 May 1983 is confirmed by item 7 of the record of the meeting, which shows that Dyckerhoff informed Ciments Français of its proposals to deal with competition from Cedest in Germany.

2325. Third, it follows from the internal Ciments Français memorandum dated 25 January 1983 recording a visit to Dyckerhoff on 21 January 1983 that both producers discussed Cedest's sales in Germany and Dyckerhoff's sales in France. Item 3, which sets out comments on the items on the agenda of a meeting scheduled for 15 February 1983, states that item 7 of that agenda, entitled 'Franco-German relations (document 33.126-4259), deals with Cedest's sales in Germany and Dyckerhoff's sales in France ('Item 7. In fact concerns sales by Cedest in Germany and by DYZ [Dyckerhoff] in France (request by Mr Gruner)). As the Commission observes in its submissions, it is irrelevant that Dyckerhoff took the initiative in discussing Cedest's conduct in Germany with Ciments Français, since that question had by common agreement been included on the agenda of a meeting between the two producers.

2326. The content of the memorandum of 25 January 1983 confirms at the very least that Dyckerhoff and Ciments Français intended to discuss Cedest's conduct in Germany and Dyckerhoff's conduct in France in reaction to Cedest's conduct. It also confirms the anti-competitive nature of the discussions.

2327. It follows that the Commission has established that Dyckerhoff and Ciments Français participated in the concerted action which it describes in recital 50, paragraph 3, third subparagraph, of the contested decision.

2328. It should further be emphasised that despite its denials Ciments Français did have a particular interest in discussing Cedest's conduct in Germany with Dyckerhoff, in view of the fear of possible reprisals in eastern France by the German manufacturers. The matters raised at the two meetings between Dyckerhoff and Ciments Français referred to in the two documents in question constitute particularly convincing evidence that that was so. Further confirmation of the fact that Ciments Français had an interest in Cedest's conduct in Germany is provided, as the Commission observes in the contested decision (recital 22, paragraph 15, second subparagraph), by the content of an internal memorandum from Vicat dated 22 July 1982 (contested decision, recital 22, paragraph 1; documents 33.126-6055 to 6057), which states: 'Very tense relations thus arose between Cedest and SCF [Ciments Français], further heightened by the battle taking place between these two competitors in the Lower Rhine and Moselle regions. This extract confirms not only the existence of intense competition between Cedest and Ciments Français, as the latter claims, but also of serious tension aggravated by the competition between those two producers in certain regions. The tension was therefore not the result of the fact that, as the author of the memorandum claims, the two producers concerned were in competition in the Lower Rhine and Moselle regions.

2329. It follows from all the foregoing considerations, therefore, that the Commission has demonstrated in the contested decision that '[f]ollowing the exports by Cedest to the German Länder other than Saarland and the German producers' reactions in France, bilateral consultations took place with a view to limiting cross-frontier flows of cement (contested decision, recital 50, paragraph 3, first subparagraph) involving Dyckerhoff (paragraphs 2282 to 2328 above), SFIC (paragraphs 2236 to 2251 above), Ciments Français (paragraphs 2252 to 2281 and 2316 to 2328 above), Heidelberger (paragraphs 2282 to 2294 above), Lafarge (paragraphs 2252 to 2281 and 2295 to 2315 above) and BDZ (paragraphs 2236 to 2251 above).

2330. In any event, the arguments whereby Ciments Français, Heidelberger and Lafarge seek to show an error of assessment in the economic analysis of the Franco-German market in order to dispute their participation in the concerted practices found in Article 3 (3) (a) of the contested decision must be rejected, since the various concerted practices and the participation of the various applicants concerned were established on the basis of documents whose probative value does not need to be considered in the light of an economic analysis of the relevant market (see paragraphs 263 and 264 above).

General regulation of cement supplies between France and Germany

2331. Dyckerhoff (T-35-95), SFIC (T-36-95), Cedest (T-38-95), Ciments Français (T-39-95), Heidelberger (T-42-95), Lafarge (T-43-95) and BDZ (T-48-95) deny that an agreement on the general regulation of cement supplies between France and Germany was concluded, as the Commission asserts in the contested decision (recitals 22, paragraph 10, and 50, paragraph 3, fifth subparagraph), or that they participated in that agreement.

2332. Before the Court assesses the merits of their arguments it is appropriate to set out the allegations which the Commission makes in the contested decision.

2333. In recital 50, paragraph 3, fifth subparagraph, the Commission states:

'All these concerted practices led to the conclusion of an agreement between the French and German undertakings and associations of undertakings concerned. The letter of 22 September 1986 refers to the progress achieved as compared with 1984 at the periodic meetings between Mr Laplace, Mr Lose and Mr Brenke, an agreement reached in 1984, the possibility of renewing the agreement, and a difference between French and German supplies. The memorandum of 12 August 1987 refers to continued discussions to resolve the questions raised in the letter of 22 September 1986 ...

2334. The Commission further states (recital 22, paragraph 10, third subparagraph):

'The Commission does not have any proof concerning the renewal of the agreement, but the statistics on French deliveries to Germany and German deliveries to France (see paragraph 12 below) show that the agreement between SFIC, Lafarge, Ciments Français and Cedest on the one hand and BDZ, Heidelberger and Dyckerhoff on the other hand continued after 1986. 2335. The Commission thus identifies first the conclusion in 1984 of an agreement on the general regulation of supplies between France and Germany, then the possibility of renewing the agreement in 1986 and, last, the existence of the agreement after 1986. In the operative part of the contested decision (Article 3 (3) (a)) it merely states that the parties concerned infringed Article 85 (1) of the Treaty 'from 23 June 1980 to at least 30 September 1989 by participating in agreements and concerted practices involving the regulation of cement supplies from France to Germany and from Germany to France.

A Conclusion of an agreement in 1984

2336. All the applicants concerned deny having participated in the conclusion of an agreement in 1984. Dyckerhoff, Ciments Français, Heidelberger and Lafarge criticise the Commission in particular for using a document, the letter of 22 September 1986 from Mr Laplace to Mr Schuhmacher (contested decision, recital 22, paragraph 10), from which, they maintain, it is impossible to ascertain the content of the alleged agreement concluded in 1984 or to identify the parties which concluded it.

2337. It should be pointed out that Mr Laplace, who drafted the letter, was both Chairman of Ciments Français and Chairman of SFIC, while Mr Schuhmacher, to whom it was sent, was both Chairman of Heidelberger and Chairman of BDZ (contested decision, recital 22, paragraph 10). In the contested decision the Commission considered the letter against the general background revealed by the other documents referred to in recitals 22 and 50. 2338. After setting out the content of the letter, the Commission concluded (contested decision, recital 22, paragraph 10, third subparagraph):

'The following essential points emerge from the letter: that there was an agreement between certain French and German enterprises (SFIC, Lafarge, Ciments Français and Cedest on the one hand, and BDZ, Heidelberger and Dyckerhoff on the other hand); that the performance or interpretation of the agreement gave rise to disputes submitted for arbitration; that there were discussions on renewal of the agreement; that the gap between French deliveries and German deliveries was not the result of bilateral discussions ... between the French and German enterprises but of differences of opinion between the French enterprises; that the chairmen of the French and German associations met on 11 October 1986 to discuss the two problems referred to in the letter and agreed, as regards quantities, to deal officially with the problem after the Franco-German meeting which took place in Paris on 27-28 October 1986 (according to documents 33.126-14764-14768).

2339. The Commission also observes (recital 50, paragraph 3, seventh subparagraph):

'... the 1984 agreement resulting from the letter of 22 September 1986 constitute[s] [an] infringement of Article 85 (1) committed by SFIC, Cedest, Ciments Français, Lafarge, BDZ, Dyckerhoff and Heidelberger.

2340. The criticisms made by the four applicants named in paragraph 2336 above provide no grounds for holding the finding by the Commission to be invalid. In the contested decision the Commission established the existence of an agreement on the general regulation of cement supplies between France and Germany and the purpose of that agreement and also identified the parties to that agreement.

2341. First, it should be observed that although there is no document formally entitled 'agreement on the general regulation of supplies between France and Germany or any single item of evidence of the organisation of a special meeting during which all the parties concerned expressed their views, the probative force of the documentary evidence put forward by the Commission in the contested decision must be evaluated in the light of the events which marked relations between the French and German industries before 1984, the reality and anti-competitive nature of which have already been established (see paragraphs 2226 to 2330 above). It is settled law that an agreement within the meaning of Article 85 (1) of the Treaty does not necessarily have to be recorded in writing (Tepea v Commission, cited in paragraph 2061 above, paragraph 41). For there to be an agreement, it is sufficient for the undertakings or associations of undertakings in question to have expressed their joint intention to conduct themselves in the market in a particular way (see the case-law cited in paragraph 1010 above). It is not therefore essential to determine the precise date on which such an agreement was concluded, once the existence of a concurrence of wills is established on the basis of documentary evidence.

2342. First, a number of documents identified by the Commission in the contested decision establish the existence of the agreement on the general regulation of cement supplies between France and Germany both in 1984 and in 1986. 2343. In the first place, it follows from a number of passages in the letter of 22 September 1986 from the Chairman of Ciments Français and of SFIC, Mr Laplace, to the Chairman of Heidelberger and of BDZ, Mr Schuhmacher, which was drafted several weeks before the meeting between the German industry and the French industry in Paris on 27 and 28 October 1986, that an agreement between the two industries on French and German supplies had been concluded in 1984 and that it still existed then, since its renewal was discussed.

2344. Thus Mr Laplace wrote (first, second and sixth paragraphs):

'As you know, I have periodic meetings with Jürgen Lose and Ted Brenke.

I believe, if we look at the situation facing us in 1984, that what we discussed at those meetings has worked well.

...

The second problem concerns the future. Ted Brenke expressed during our last meeting the opinion that, if we were to renew our agreement, there would be a demand from the German side that the gap existing since 1984 between French and German deliveries be reduced. I told him that, if this demand were to be maintained, I saw very little hope in our reaching a further agreement. As you remember, there was no logical and, even less, ethical justification for this gap, which was not, in fact, the result of bilateral discussions between French and German interests, but resulted from a far more complicated pattern of discussion which included conflicts between the French parties, and would probably have included conflicts on the German side had we not agreed then to leave Wössingen aside for the time being. I do not believe that we can have so many people agree on something new unless they are under pressure, and the very purpose of a renewal is not to let such a pressure develop ...

2345. In the light of those factors, the Commission was entitled to take the view that at that time there still existed an agreement, concluded in 1984, between the French industry and the German industry on the regulation of cement supplies between France and Germany and that its renewal was contemplated when the letter was drafted. It is therefore necessary to reject the argument of Dyckerhoff and Heidelberger that the content of the letter demonstrates that the agreement concluded in 1984 no longer existed in any event on 22 September 1986. 2346. Next, the memorandum to the Chairman dated 15 March 1984 shows that the Chairman of Cembureau intended that the Head Delegates should discuss French exports to Germany at their meeting on 19 March 1984 as one of the 'hot spots then still existing. It is true that, although the notes on that meeting no longer mention French exports to Germany, the participants in the meeting held on 19 March 1984 concluded that the pressure from inter-member trade had slackened considerably through improved bilateral contacts (see contested decision, recitals 19, paragraphs 9 and 10, and 50, paragraph 3, fourth subparagraph; see also footnote 100; documents 33.126-11728, 11729 and 11733 to 11737) (see paragraphs 2245 to 2250 above). The fact that the 'hot spot referred to in the abovementioned memorandum was exclusively concerned with French exports to Germany and not German exports to France confirms that the parties involved in Franco-German relations concluded an agreement which resolved at least a large proportion of the problems which had given rise to the concerted practices which were a feature of 1982 and 1983, in particular Cedest's conduct on the German market and the retaliatory measures taken by the German producers. The fact that French exports to Germany continued to be problematic confirms that, as indicated in the letter of 22 September 1986, the German industry concerned (the 'German side) intended to secure a reduction in the gap between the volume of French exports to Germany and that of German exports to France when the agreement concluded in 1984 was renewed.

2347. SFIC claims, however, that the memorandum of 15 March 1984, which is merely cited in a footnote in the section of the contested decision devoted to the Franco-German agreement, has no connection with the internal memorandum of 23 June 1982 by Lafarge (contested decision, recital 22, paragraph 4; documents 33.126-6592 to 6596) or with the Franco-German agreement in general. It reaches that conclusion on the basis of a contradiction which it finds between the conclusions of the meeting of 19 March 1984 set out in the notes on the meeting drawn up on 2 April 1984 (recital 19, paragraph 10; documents 33.126-11733 to 11737) that 'exports had tended to shrink and the trends registered in the statistics, otherwise used by the Commission to characterise the Franco-German agreement (recital 22, paragraph 10, in fine), according to which cement exports from Germany to France had increased between 1985 and 1989. 2348. First, the interpretation of the actual wording of the contested decision advocated by SFIC cannot be accepted. The Commission refers to the memorandum of 15 March 1984 not only in footnote 100 but also in recital 50, paragraph 3, fourth subparagraph, of the contested decision.

2349. Second, it must be pointed out that the contradiction complained of by SFIC results from an abbreviated presentation of the matters in the contested decision. Since only exports from France to Germany are seen in the memorandum to the Chairman dated 15 March 1984 as being problematic in regard to the rule on non-transhipment to internal markets in the Cembureau agreement, the conclusion reached in the notes on the meeting drawn up on 2 April 1984 that 'exports had tended to shrink can refer only to exports from France to Germany. Consequently, that conclusion is not at variance with the trend which the Commission noted in the statistics referred to in recital 22, paragraph 12, of the contested decision, to the effect that exports from Germany to France had increased between 1985 and 1989. 2350. Furthermore, the conclusions reached in the notes on the meeting are more qualified than SFIC suggests, since they state: 'Pressure from inter-member trade had slackened considerably through improved bilateral contacts. Exports had tended to shrink but there was still a threat from outsiders.

2351. Last, SFIC infers the existence of a contradiction from the comparison of two factors relating to different periods, the first before 19 March 1984 and the second after that date.

2352. Similarly, the fact that French exports to Germany were not mentioned as a 'hot spot in the notes dated 2 April 1984 on the meeting of Cembureau Head Delegates held on 19 March 1984 (contested decision, recital 19, paragraph 10), whereas they were referred to as such in the memorandum to the Chairman dated 15 March 1984 (contested decision, recital 19, paragraph 9), does not mean, as Ciments Français maintains, that the conclusion reached by the Cembureau Head Delegates at their meeting on 19 March 1984 that pressure from inter-member trade had slackened considerably through improved bilateral contacts does not concern Franco-German relations. Having regard to the contacts between the French and German industries, to which the letter of 22 September 1986 unequivocally attests (see paragraphs 2242 and 2243 above), and the reference to French exports to Germany in the memorandum of 15 March 1984, the fact that there is no reference to Franco-German relations in the notes on the meeting is of such a nature as to show that the Cembureau Head Delegates considered that they no longer presented a problem and were therefore no longer a 'hot spot.

2353. Lafarge cannot infer from the reference to French exports to Germany in the memorandum to the Chairman dated 15 March 1984 that there was disagreement which showed that the agreement allegedly concluded in 1984 did not exist. It cannot be ruled out that the agreement was concluded in 1984 after the Head Delegates meeting on 19 March 1984. Furthermore, even on the assumption that it was concluded before that meeting, it cannot be ruled out that the disagreement or the problem remaining between the French and German industries was the result of the German desire to reduce the gap between the volumes of cement exported by the French producers and the German producers.

2354. It is therefore irrelevant that it has not been possible to determine the precise date on which that agreement was concluded in 1984, since the evidence adduced by the Commission indicates that an agreement within the meaning of Article 85 (1) of the Treaty was concluded in 1984. 2355. Dyckerhoff and Heidelberger claim that it is contradictory to find that the agreement commenced in 1984 when, according to the letter of 22 September 1986, the German producers sought to reduce the gap which had existed since 1984 between French and German deliveries. Dyckerhoff adds that that contradiction also follows from the fact that Franco-German supplies were one of the 'hot spots examined at the Cembureau Head Delegates meeting on 19 March 1984 and from the fact that the agreements and concerted practices relating to supplies between France and Germany, referred to in Article 3 (3) (a) of the contested decision, are found to have commenced on 23 June 1982. 2356. In reality there is no contradiction following from the matters which, according to Dyckerhoff and Heidelberger, rule out the conclusion of an agreement in 1984. First, it follows from the letter of 22 September 1986 that it was the German producers' desire to reduce the gap between French imports into Germany and German imports into France that led Mr Laplace to talk of renewing the agreement. Then, as indicated in paragraphs 2347 to 2353 above, the fact that Franco-German deliveries were discussed at the Cembureau Head Delegates meeting on 19 March 1984 provides further evidence that negotiations took place between the French and German industries and that an agreement was concluded between them, since the documentary evidence submitted by the parties shows that those deliveries were not subsequently discussed within Cembureau. Last, Dyckerhoff is confusing two different matters: first, the single and continuous infringement involving the regulation of cement supplies from France to Germany and from Germany to France between 23 June 1982 and 30 September 1989, which includes all the concerted practices and agreements established by the Commission in recital 50, paragraphs 1 to 4, of the contested decision (see paragraph 2170 above) and, second, the agreement having the same purpose concluded in 1984, referred to more specifically in recital 50, paragraph 3, fifth subparagraph, of the contested decision. Since the latter agreement is just one of the constituent elements of the single and continuous infringement it is not contradictory to find that it commenced on a different date from that on which the 1984 agreement is found to have commenced.

2357. Second, the passages from the letter of 22 September 1986 quoted in paragraph 2344 above, and more particularly the one to the effect that Ted Brenke expressed the opinion that, if the agreement were to be renewed, there would be a demand from the German side that the gap existing since 1984 between French and German deliveries be reduced, shows that the object of the agreement, which was still in force in 1986, was to regulate cement supplies between France and Germany.

2358. None of the evidence adduced by the applicants permits the conclusion that the object of the agreement was limited to areas other than Saarland. In that regard, Ciments Français cannot rely on a distinction between the object of the various constituent elements of the infringement referred to in Article 3 (3) (a) of the contested decision, the alleged agreement to share the Saarland market, the concerted practices relating to Cedest's sales in the Palatinate and the agreement concluded generally. It is sufficient to find that all those elements concern the sharing of the market and that no distinction between Saarland and the other frontier areas concerned is apparent from the wording of the letter of 22 September 1986. Any geographical distinction between the first element, the alleged agreement to share the Saarland market, and the second, the concerted practices relating to Cedest's commercial conduct in Germany, is not justified in terms of the evidence of the existence of an agreement involving the general regulation of cement sales between France and Germany, having regard to the wording of the letter of 22 September 1986. 2359. Accordingly, there is no need to distinguish what the parties had in mind for Saarland from what they intended for the other areas in the context of that agreement involving the general regulation of the markets. It follows that the Commission was entitled to take the view that the 1984 agreement had as its object the sharing of markets and the restriction of cross-frontier flows of cement between France and Germany (contested decision, recital 50, paragraph 4, first subparagraph). In any event, even on the assumption that the allegations that the agreement did not concern Saarland are well founded, it is none the less the case that such an agreement still involved the regulation of sales between France and Germany.

2360. Nor can Ciments Français maintain in that regard that neither the content of the agreement concluded in 1984 nor, a fortiori, its anti-competitive nature can be established on the basis of a letter drafted on 22 September 1986, which refers, without more, to the mere existence of an agreement. The absence of a formal document recording in precise terms the content of a concurrence of wills between a number of economic operators in a market does not necessarily mean that it is impossible to identify the elements of an agreement contrary to Article 85 (1) of the Treaty. In this case the Commission established, upon examining the letter of 22 September 1986 in the light of the other documents referred to in the contested decision (see paragraphs 2226 to 2330 above), that the agreement concluded in 1984 had as its object the regulation of cement sales between France and Germany. Furthermore, the fact that the Commission established the existence of that agreement mainly on the basis of a letter drafted in 1986, after the agreement in question had been concluded, shows both that the agreement was concluded and that it was implemented.

2361. In the present case the object of the agreement concluded in 1984 and still in force in 1986, namely to regulate cement supplies between France and Germany, was sufficient to establish that it was in the nature of an infringement.

2362. Third, it is necessary to identify the parties to that agreement.

2363. As regards, first, the two national associations, SFIC and BDZ, it has already been found that the letter of 22 September 1986 indicates at a number of points that they participated in the agreement (see paragraphs 2242 and 2243 above).

2364. Furthermore, SFIC has nothing specific to say about that letter from its Chairman to the Chairman of BDZ.

2365. BDZ, on the other hand, puts forward a number of arguments in order to show that it did not participate in the agreement concluded in 1984. It relies on the fact that there is no copy of the letter in its own files and that its Director General, Mr Steinbach, only became aware of the letter upon reading the SO.

2366. The Commission rightly observes in the contested decision (recital 22, paragraph 18) that, as the letter was sent to the Chairman of BDZ, Mr Schuhmacher, there is no need to determine whether there was a copy of the letter in Mr Steinbach's files or the point at which he became aware of it. It is sufficient to establish that the writer of the letter, referring to his capacity as Chairman of SFIC, considered that Mr Schuhmacher represented the German cement industry's interests in its relations with the French cement industry, which could only be because of Mr Schuhmacher's then position as head of BDZ. It is also significant that the letter uses expressions such as 'French and German interests, 'French side and 'German side (see paragraph 2243 above).

2367. BDZ cannot rely in its defence on its allegation that the handwritten comments in German on the letter of 22 September 1986 show that Mr Schuhmacher had no intention of discussing the matters dealt with in the letter at the meeting between the French and German industries in Paris in October 1986. At the most, those comments confirm that the addressee of the letter, Mr Schuhmacher, regarded the letter as falling within the scope of his activities in the national association of cement producers in his country, namely BDZ. They are as follows:

'Conversation of 11.10:

(a) Agreed in principle on function of arbitrators

(b) No to the quantity ratios, official discussion only after Paris.

2368. As regards the memorandum to the Chairman dated 15 March 1984 (contested decision, recital 19, paragraph 9; documents 33.126-11728 and 11729) concerning French exports to Germany, it was intended to prepare for a meeting of Cembureau Head Delegates in which SFIC and BDZ participated as members of Cembureau representing the interests of the cement industries of their countries. The Commission was therefore right to find in the contested decision that SFIC and BDZ had participated in the agreement concluded in 1984 and which was still in force in 1986. 2369. BDZ questions how it could have participated in an agreement from 23 June 1982, when in the contested decision the Commission alleges the existence of concerted practices between 1982 and 1984 and relies on the finding of an agreement only from 1984. 2370. Like Dyckerhoff (see paragraph 2356 above), BDZ confuses the single and continuous infringement involving the regulation of cement supplies from France to Germany and from Germany to France between 23 June 1982 and 30 September 1989, which embraces all the concerted practices and agreements identified by the Commission in recital 50, paragraphs 1 to 4, of the contested decision, with the agreement having the same object concluded in 1984, which is referred to more specifically in recital 50, paragraph 3, fifth subparagraph, of the contested decision and is just one of the elements constituting the single and continuous infringement.

2371. BDZ also claims that the Lafarge internal memorandum of 23 June 1982 (contested decision, recital 22, paragraph 4; documents 33.126-6592 to 6596), in so far as it refers to a discussion between producers in which Lafarge did not take part, is no evidence of its accession to an agreement to share the markets. It also questions the connection which the Commission attempts to make between Mr Schuhmacher's activities in the summer of 1985 and BDZ's participation in agreements to share the French and German markets.

2372. In that regard, it must be observed that the Commission did not claim that it established BDZ's participation in a market-sharing agreement on the basis of the Lafarge memorandum of 23 June 1982. That document is referred to in the contested decision (recitals 22, paragraph 4, and 50, paragraph 3, second subparagraph) in order to show that talks were held between SFIC and BDZ (see paragraphs 2236 to 2251 above). Moreover, as the Commission correctly observes, no connection was established between Mr Schuhmacher's activities during the summer of 1985 and BDZ's participation in the infringement referred to in Article 3 (3) (a) of the contested decision. BDZ's argument is therefore devoid of purpose.

2373. As regards Ciments Français, it transpires that, as well as being affiliated to SFIC, it was chaired by the writer of the letter of 22 September 1986, Mr Laplace. Referring to his capacity as Chairman of SFIC, Mr Laplace expressed his view on behalf of the members of that association and, first and foremost, on behalf of his own company, Ciments Français. Furthermore, the fifth paragraph of the letter reads: 'The reason why I am proposing this is that while we can bestow that authority on the arbiters, I for one, as chairman of the Syndicate, have none when it comes to taking even small decisions regarding the rights of my constituents, other than my own company, and would have to refer to all of them, at their top level for everything, which is very cumbersome.

2374. Ciments Français's participation in the agreement involving the general regulation of supplies also forms part of the extension of its conduct before 1984, which consisted inter alia in bringing pressure to bear on Cedest and in taking part in bilateral concerted action with Dyckerhoff (see paragraphs 2252 to 2281 and 2316 to 2328 above).

2375. As regards Lafarge, it must be pointed out that it is a member of SFIC and that the Chairman of SFIC, Mr Laplace, expressly stated in his letter of 22 September 1986 that in order to take the least decision concerning the rights of the members of SFIC he would have to refer to their leaders (fifth paragraph of the letter, referred to in paragraph 2373 above). That shows that, having regard to SFIC's internal decision-making procedure, Lafarge was directly involved in the conclusion of the agreement in 1984. Nor has Lafarge relied on any document to show that it abandoned the agreement concluded in 1984. In that regard, contrary to what it claims, the reference to Wössingen in the letter of 22 September 1986 cannot be presented as evidence that Lafarge did not participate in the agreement concluded in 1984. Although it is apparent from the sixth paragraph of that letter that at the time when the agreement was concluded a decision had been taken not to determine Wössingen's case, that does not mean that Lafarge did not participate in the agreement. The only inference that can be drawn is that Wössingen's position in Germany still posed a problem in 1984. Lafarge itself stated in its submissions that the only reference to Wössingen in the Bundeskartellamt's decision of 12 September 1988 concerning an agreement in southern Germany concerned its relations with the other German cement producers after May 1986, which confirms that Wössingen's position up to that date was a special case. On the other hand, there is nothing to support the conclusion that this special position of Wössingen in Germany was taken by the other parties to the agreement, whether French or German, to mean that Lafarge was not participating in it.

2376. Moreover, it follows from documents 33.126-6976 to 6979 and 33.126-16556 (contested decision, recital 22, paragraph 11) that Lafarge's representatives on the Wössingen supervisory board expressed the wish that Wössingen should take part in the quota system for southern Germany. The Bundeskartellamt inquiry and decision of 12 September 1988 concerning that quota allocation for southern Germany revealed that Lafarge had agreed with Mr Schuhmacher, the Chairman of BDZ and of Heidelberger, that Wössingen should take part in that agreement (contested decision, recital 22, paragraph 11, fourth subparagraph; documents 33.126-6720 to 6745).

2377. Lafarge claims that the reference in the contested decision to the Bundeskartellamt decision of 12 September 1988 infringes its rights of defence, in so far as that decision appears in the file of national complaints relating to the German market, which were dropped, and the decision was only supplementary evidence in the SO. Lafarge states that Wössingen is mentioned in the Bundeskartellamt decision only in connection with its relations with the other German cement producers after May 1986, so that the Commission could not find on the basis of that decision that Lafarge took part in an alleged Franco-German agreement before May 1986. It accuses the Commission of having distorted the content of the Bundeskartellamt decision in relation to Wössingen.

2378. Those arguments must be rejected.

2379. As regards the alleged infringement of Lafarge's rights of defence, it is sufficient to observe that the Commission made specific reference in the part of the SO dealing with the Franco-German agreement (paragraph 12, p. 28) to all the matters set out in the contested decision, recital 22, paragraph 11, and that all the documents referred to on that occasion were in the Box (see paragraph 95 above).

2380. As regards the content of the Bundeskartellamt decision, it should be observed that the decision is referred to in recital 22, paragraph 11, of the contested decision. According to footnote 104, however, which is included in that paragraph, the facts which paragraph 11 describes 'are not part of the objections of the Commission [and] are referred to solely in order to present a fuller picture of the relationships between the various actors. Irrespective of whether or not the Commission used the content of the Bundekartellamt's decision to establish Lafarge's participation in the infringement referred to in Article 3 (3) (a), it suffices to find that the facts set out in recital 22, paragraph 11, of the contested decision were explicitly mentioned in point 12 of the SO (Chapter 2) and that the documents relied on by the Commission in that connection were all in the Box (see paragraph 95 above). In those circumstances, there is no question of an infringement of Lafarge's rights of defence in that regard.

2381. It should be pointed out, next, that Lafarge did not dispute the fact, established on the basis of documents cited in the contested decision, that on 27 September 1985 its representatives on the Wössingen supervisory board expressed the wish that Wössingen should take part in the quota system for southern Germany and that Lafarge agreed with Mr Schuhmacher, Chairman of BDZ and of Heidelberger, that Wössingen should be able to take part in that agreement (see paragraph 2376 above).

2382. The proximity of the date on which the agreement involving the general regulation of cement supplies between France and Germany was concluded (1984) to the date on which Wössingen joined the agreement concerning southern Germany (1985), when considered together with the intervention of Mr Schuhmacher Chairman of BDZ, recipient of the letter of 22 September 1986 and negotiator with Lafarge vis-à-vis the agreement for southern Germany is further evidence of Lafarge's participation in the agreement concluded in 1984. 2383. Furthermore, as in the case of Ciments Français (see paragraph 2374 above), Lafarge's participation in the agreement involving the general regulation of supplies is also an extension of its conduct before 1984, which consisted inter alia in bringing pressure to bear on Cedest and in taking part in bilateral concerted action with Dyckerhoff (see paragraphs 2252 to 2281 and 2295 to 2315 above).

2384. As regards Cedest, it is clear that there are already grounds for annulling Article 3 (3) (a) of the contested decision in so far as it finds that it participated in the first two constituent elements of the infringement in question, namely the alleged agreement to share the Saarland market and the concerted practices between 1982 and 1984 (see paragraphs 2225 and 2288 above). According to the contested decision (recital 50, paragraphs 1 to 3), it was those first two elements which led to the conclusion of an agreement in 1984, which is the only other element constituting the infringement referred to in Article 3 (3) (a). The Commission cannot therefore find that Cedest participated in the third element, since its participation in the first two elements cannot be regarded as established, for both procedural and substantive reasons (see paragraphs 2211 and 2284 to 2290 above), and there is no direct evidence that Cedest participated in the agreement concluded in 1984. Cedest's membership of SFIC cannot in itself suffice in that regard, since SFIC also includes other members which were not identified by the Commission as parties to the agreement concluded in 1984. 2385. It follows that in the contested decision the Commission has failed to establish to the requisite factual and legal standard that Cedest participated in the infringement referred to in Article 3 (3) (a). That provision must therefore be annulled in so far as it relates to Cedest.

2386. As regards Dyckerhoff, it is apparent from the letter of 22 September 1986 that since 1984 one of its representatives, Mr Lose, had participated in periodic meetings with the Chairman of SFIC, Mr Laplace, and Mr Brenke, of Heidelberger (contested decision, recital 22, paragraph 10, first subparagraph). As in the case of Ciments Français and Lafarge (see paragraphs 2374 and 2383 above), Dyckerhoff's participation in that agreement involving the general regulation of supplies is the continuation of its pre-1984 conduct, which consisted inter alia in taking part in bilateral concerted actions with Heidelberger, with Lafarge and with Ciments Français (see paragraphs 2282 to 2328 above).

2387. As regards Heidelberger, it must be pointed out that the recipient of the letter of 22 September 1986 was not only Chairman of BDZ but also Chairman of Heidelberger. Furthermore, in that letter the Chairman of SFIC, Mr Laplace, mentions periodic meetings with Mr Lose, of Dyckerhoff, and Mr Brenke, of Heidelberger, since 1984. As in the case of the other French and German producers concerned (see preceding paragraph), Heidelberger's participation in that agreement involving the general regulation of supplies was the continuation of its pre-1984 conduct, which consisted inter alia in taking part in bilateral concerted action with Dyckerhoff (see paragraphs 2282 to 2294 above).

2388. As in the case of the concerted practices examined above (see paragraph 2330), the Court must reject the arguments whereby Ciments Français, Heidelberger and Lafarge seek to establish an error of assessment in the economic analysis of the Franco-German market in order to challenge the finding, in Article 3 (3) (a) of the contested decision, that they participated in the agreement involving the general regulation of cement sales between France and Germany. The existence and content of that agreement and the participation of the various applicants concerned were established on the basis of documents whose probative value does not need to be assessed in the light of an economic analysis of the relevant market.

2389. It follows from all the foregoing that the Commission was entitled to take the view that, apart from Cedest (see paragraphs 2384 and 2385 above), all the French and German producers involved in cement supplies between France and Germany had participated in an agreement involving the general regulation of cement supplies between those two Member States.

B Pursuit of the agreement after 1986

2390. Dyckerhoff, Ciments Français, Heidelberger and BDZ complain of the lack of proof that the agreement was renewed, a lack of proof acknowledged by the Commission in the contested decision (recital 22, paragraph 10, third subparagraph): 'The Commission does not have any proof concerning the renewal of the agreement .... The applicants consider that since the Commission had no proof that the agreement was renewed it could not then rely (same paragraph) solely on an analysis of the statistics exchanged by the national associations in question to establish that the agreement was renewed. They claim that there is at least an alternative economic explanation to the findings deriving from those statistics.

2391. However, although it is clear from the contested decision, that in order to establish that the parties to the 1984 agreement intended to renew it, the Commission once again refers to the letter of 22 September 1986 (see recital 50, paragraph 3, fifth subparagraph: 'The letter of 22 September 1986 refers to ... the possibility of renewing the agreement), the Court finds that, contrary to what is suggested by the applicants, the Commission did not accept the existence of an agreement renewed in 1986 or later as part of the infringement of Article 85 (1) to which it refers in Article 3 (3) (a) of the contested decision.

2392. The Commission actually used its findings from the statistics exchanged by the two national associations to confirm that the concurrence of wills existing since 1984 between the French and German industries had continued, not to show that the agreement concluded in 1984 had been renewed. Thus in recital 22, paragraph 10, third subparagraph in fine, of the contested decision the Commission states: 'The Commission does not have any proof concerning the renewal of the agreement, but the statistics on French deliveries to Germany and German deliveries to France ... show that the agreement between SFIC, Lafarge, Ciments Français and Cedest on the one hand and BDZ, Heidelberger and Dyckerhoff on the other hand continued after 1986. 2393. Although the Commission does not have any proof that the agreement concluded in 1984 was renewed and acknowledges that fact in the contested decision, the parties' intention to improve the agreement arrived at in 1984 and still in force in 1986 is clearly apparent from the passages from the letter of 22 September 1986 (contested decision, recital 22, paragraph 10; documents 33.126-3574 to 3576) quoted in paragraph 2344 above. The meetings between Mr Laplace, Mr Lose and Mr Brenke and the need to have recourse to arbitrators (Schiedsrichter), and also the 'German side's desire to reduce the gap existing since 1984 between French and German deliveries, show that the parties then wished to continue their agreement on the regulation of sales between France and Germany, if necessary by refining the scope of their concurrence of wills in order to settle all the problems encountered in the Franco-German frontier area.

2394. Dyckerhoff cannot claim that the letter of 22 September 1986 does not describe any discussion having as its object the renewal of an agreement. The sixth paragraph of the letter refers on an number of occasions to the renewal of an agreement ('if we were to renew our agreement, 'very little hope in our reaching a further agreement and 'the very purpose of a renewal is not to let such a pressure develop).

2395. Dyckerhoff, SFIC, Ciments Français, Heidelberger, Lafarge and BDZ claim that, having regard to the judgment in Woodpulp II, cited in paragraph 106 above (paragraph 71), the analysis of the statistics relating to deliveries between France and Germany could not serve to demonstrate the continuation of the agreement concluded in 1984, since there is an alternative economic explanation to the collusion found in the contested decision.

2396. Furthermore, Dyckerhoff, SFIC, Ciments Français and Heidelberger dispute the evidential value of the content of the internal Heidelberger memorandum of 12 August 1987 (document 33.126-3573) cited in recital 22, paragraph 10, fourth and fifth subparagraphs. They further maintain that this document, which is not referred to in the SO, could not be used against them in the contested decision.

2397. The Court points out that the argument alleging an infringement of the rights of the defence has already been rejected in paragraph 345 above.

2398. Before assessing the merits of the other arguments, it is appropriate to re-examine the relevant passages of the contested decision. In the contested decision the Commission, after observing that it has no proof concerning the renewal of the agreement, claims that the statistics on French deliveries to Germany and German deliveries to France between 1 January 1985 and 30 September 1989 show that the agreement continued after 1986 (recital 22, paragraph 10, third subparagraph in fine). It goes on to state that according to an internal Heidelberger memorandum of 12 August 1987 the Franco-German discussions continued in 1987. In recital 22, paragraph 12, third subparagraph, the Commission observes that a comparison of these data 'shows that the gap existing since 1984 between French and German deliveries (letter of 22 September 1986 ...) was reduced.

2399. In its submissions in Case T-48-95 the Commission confirmed that it had concluded from the changes in the statistics that the agreement had continued beyond 1986. 2400. The Commission therefore puts forward two different pieces of evidence to demonstrate that the concurrence of wills which materialised in 1984 and still existed in 1986, the purpose of which was to regulate cement sales between France and Germany, survived at the very least until 30 September 1989: the findings from the statistics set out in recital 22, paragraph 12, and the Heidelberger memorandum of 12 August 1987 (contested decision, recital 22, paragraph 10).

2401. It is necessary, first, to assess the evidential value of the memorandum of 12 August 1987. 2402. Heidelberger cannot claim that the complaint alleging the continuation of the agreement in 1987 was not made against it in the SO. There is nothing in the SO to indicate that the Commission considered that the concurrence of wills found to exist in 1984 no longer existed in 1987 (see also paragraph 576 above). On the contrary, in the passages of the SO dealing with the Franco-German agreement the Commission took great care not to state that the concurrence of wills had ceased. It even observed that the handwritten comments on the letter of 22 September 1986 showed that the problem of the quantities exported to France and Germany had been discussed after the Franco-German meeting on 27 and 28 October 1986 (SO, paragraph 12, p. 27).

2403. Dyckerhoff and Heidelberger claim that the content of the memorandum of 12 August 1987 shows that there was no agreement. Ciments Français states that there is nothing in the memorandum to indicate the content of the 1984 agreement or that the agreement was renewed.

2404. Those arguments must be rejected.

2405. First, the Commission used the memorandum of 12 August 1987 not to demonstrate the existence, the continuation or the renewal of the agreement concluded in 1984 but rather to show that the Franco-German discussions referred to in the letter of 22 September 1986 had continued. Thus the Commission states in the contested decision (recital 22, paragraph 10, third and fourth subparagraphs): 'According to an internal Heidelberger memorandum of 12 August 1987 (document 33.126-3573), the Franco-German talks continued in 1987: I agreed with Mr Laplace to discuss, before his term of office in the French cement industry came to an end, a number of well-known unresolved matters. You will meet him with the Cembureau delegation that is leaving for Russia. I should like to discuss with you, before you meet him, the content of your talks with him. Annex. The Annex is the letter of 22 September 1986 referred to above. The reference to 'well-known ... matters which were 'unresolved and the fact that the letter of 22 September 1986 is annexed to the memorandum show that the 'matters concerned relate to the possible renewal of the agreement with which the letter deals. According to the content of the letter, the parties to the agreement wished to improve it and extend its scope to the regulation of certain matters left in abeyance when it was concluded in 1984, such as the reduction of the gap between the volumes of deliveries in both countries. The fact that such questions still subsisted therefore shows that the concurrence of wills which came into existence in 1984 and which was again referred to in the letter of 22 September 1986 still existed in August 1987. 2406. On the other hand, the continuation of the concurrence of wills whose existence is established in 1984 and 1986 in the case of Dyckerhoff, SFIC, Ciments Français, Heidelberger, Lafarge and BDZ (see paragraphs 2363 to 2389 above) is also apparent from the fact that the letter of 22 September 1986 from the Chairman of SFIC and of Ciments Français to the Chairman of BDZ and of Heidelberger was annexed to the Heidelberger memorandum of 12 August 1987. 2407. Furthermore, Lafarge and BDZ have made no criticism or particular comment in relation to the Heidelberger memorandum or to its use by the Commission in the contested decision.

2408. Second, it is necessary to assess the conclusiveness of the findings based on the statistics reproduced in recital 22, paragraph 12, of the contested decision.

2409. In recital 22, paragraph 10, of the contested decision the Commission states that the statistics show that the agreement continued after 1986. In recital 22, paragraph 12, third subparagraph, it considers that a comparison of these statistics shows that the gap existing since 1984 between French and German deliveries referred to in the letter of 22 September 1986 was reduced. In recital 50, paragraph 3, sixth subparagraph, it explains that the exchanges of information between the two associations indicate that the reduction sought in the difference between the French and German supplies was achieved.

2410. It is true that in March 1984 exports from France to Germany were still regarded as a 'hot spot (see memorandum to the Chairman dated 15 March 1984 (contested decision, recital 19, paragraph 9; documents 33.126-11728 and 11729); that the letter from the Chairman of SFIC and of Ciments Français to the Chairman of BDZ and of Heidelberger dated 22 September 1986 (see paragraphs 2343 and 2344 above) indicates that the German industry concerned expressed the desire to reduce the gap between the volume of French exports to Germany and that of German exports to France; and that none of the applicants concerned disputes the reality of the trend towards the reduction of that gap between 1 January 1985 and 30 September 1989 as a result of an increase in German exports to France, a point confirmed by the data reproduced in recital 22, paragraph 12, of the contested decision. However, it must be emphasised that at the hearing Ciments Français submitted an alternative economic explanation which the Commission, contrary to what it maintains in the contested decision (recital 22, paragraph 15) and in its submissions, did not succeed in refuting.

2411. Ciments Français explained that the reasons for a trend towards a reduction in the gap were the greater expansion of the French regional market and the higher level of French prices in comparison with German prices.

2412. In rejecting the explanation that cement producers found French prices more attractive in 1986, 1987 and 1988 the Commission presented a table based on documents setting out the prices communicated to Cembureau by BDZ (documents 33.126-15161 and 15163) and by SFIC (documents 33.126-15168 to 15170) from which it is clear that German prices were higher than French prices. The Commission concluded (contested decision, recital 22, paragraph 15, sixth subparagraph): '... French prices were not at all more attractive than German prices in the period 1986-88. On the contrary, the price difference is all the greater considering that the German PZ35 cement has a lower resistance grade than the French CPJ45 and CPA55R grades. The Commission therefore concluded (recital 22, paragraph 15, final subparagraph): 'It is clear that the explanations given by Ciments Français are not supported by the facts.

2413. In the present proceedings Ciments Français pointed out to the Commission that it had committed an error of assessment when comparing the German prices communicated to Cembureau by BDZ with the French prices communicated to Cembureau by SFIC, in that it presents them as 'gross ex-works price[s] (contested decision, recital 22, paragraph 15), whereas the prices communicated to Cembureau by BDZ were delivered prices and those communicated to Cembureau by SFIC were 'ex-works prices.

2414. It follows from documents 33.126-15161 to 15163 and 15168 to 15170, which are referred to in the contested decision (recital 22, paragraph 15), that, as Ciments Français emphasises, the prices communicated to Cembureau by BDZ and SFIC are not comparable as such, since the former are delivered prices ('frei site or 'frei station bundesgebiet) and the latter 'ex-works prices. It is also clear from a table presented by Ciments Français (annex 30 to the application in Case T-39-95) that the expression 'frei station bundesgebiet does not take account of the ex-works price. That table, which originated in a Cembureau database and is dated May 1994, sets out the prices for Germany for the years 1979 to 1993. It refers to 'delivered on site or 'delivered to site prices which, for the months and years referred to in documents 33.126-15161 to 15163, correspond to the prices in the table in recital 22, paragraph 15, of the contested decision. The latter table clearly contains an error, since it describes the prices indicated in documents 33.126-15161 to 15163 as 'German average gross ex-works price communicated by BDZ only for PZ 35. As such, the table therefore has no evidential value.

2415. Ciments Français also submitted other documents in order to establish, on the basis of a comparison between delivered prices at various places, that French prices were higher than German prices for the years 1986, 1987 and 1989 (annex 30 to the application in Case T-39-95). However, the Commission did not discuss the content of those documents, but merely referred to the contested decision.

2416. In such circumstances, the Commission cannot rely on an analysis of the data reproduced in recital 22, paragraph 12, of the contested decision to establish the continuation of an agreement between the French industry and the German industry on the regulation of sales between the two countries. It has failed to demonstrate that the only plausible explanation for the reduction in the gap between the volume of French exports and the volume of German exports resulting principally from the increase in German exports was the continuation of an agreement (Woodpulp II, cited in paragraph 106 above, paragraph 71). The reduction in the gap could equally well result from competitive conduct on the part of the undertakings concerned and in particular from the fact that cement producers found French prices more attractive in 1986, 1987, 1988 and 1989, as Ciments Français explained to the Commission during the administrative procedure.

2417. Accordingly, there is no need to examine the other arguments put forward by the applicants to challenge the value of the statistics on which the Commission relied, since the existence of a reasonable alternative economic explanation deprives those statistics of all probative force as regards all the applicants concerned by Article 3 (3) (a).

2418. It follows from the foregoing (see paragraphs 2390 to 2417 above) that the evidence referred to in the contested decision establishes the continuation of the agreement referred to in Article 3 (3) (a) of the contested decision only until 12 August 1987, the date on which the Heidelberger memorandum was drafted (recital 22, paragraph 10, fourth subparagraph). It follows that Article 3 (3) (a) must be annulled in so far as it finds the existence of an infringement of Article 85 (1) of the Treaty after 12 August 1987 and finds that Dyckerhoff, SFIC, Ciments Français, Heidelberger, Lafarge and BDZ participated in such an infringement after that date.

2419. For the remainder, Heidelberger cannot claim that the Commission reversed the burden of proof by requiring it to show that it did not participate in any of the elements of the infringement referred to in Article 3 (3) (a) of the contested decision. Nor can it rely on the existence of only a small number of documents referred to in the contested decision that concern it. The Commission has shown, on the basis of documents, that Heidelberger participated in the infringement in question. The fact that Heidelberger considers that only the letter of 22 September 1986 and its internal memorandum of 12 August 1987 concern it is not of such a nature as to undermine the evidence that it participated in the infringement in question. The precise number of documents used to prove its participation is not decisive, since it is only their evidential value which is relevant. Furthermore, other documents, such as the internal Lafarge memorandum referring to the meeting on 17 November 1982 between Dyckerhoff, Heidelberger and Cedest (see paragraphs 2282 to 2294 above), establish Heidelberger's participation in the infringement referred to in Article 3 (3) (a).

2420. As a result of this assessment of the arguments put forward by the applicants referred to in Article 3 (3) (a) of the contested decision, it has been determined whether or not each of the constituent elements of the infringement referred to in that provision has been established as against those parties. However, a number of them have specifically disputed the duration of their participation in the infringement.

Duration of the participation of certain parties in the infringement referred to in Article 3 (3) (a)

2421. Ciments Français complains of the artificial nature of the construction whereby the Commission establishes a link between the various elements found to be an infringement in Article 3 (3) (a) of the contested decision, when those elements have different actors and distinct objectives, as the Commission acknowledges in the contested decision.

2422. Heidelberger claims that the Commission has failed to adduce evidence that the agreements and concerted practices in question continued until 30 September 1989. 2423. Lafarge questions how the Commission is able in its case to take the date of 30 September 1989 as the date on which the infringement ceased without adducing evidence that it participated in the infringement until that date.

2424. Before assessing the merits of those various arguments, it is appropriate to consider the passages in the contested decision which deal with that point.

2425. It is apparent from the contested decision that the question of the duration of the infringement referred to in Article 3 (3) (a) is linked to the question of its single and continuous nature. The Commission states (recital 50, paragraph 4): 'In view of the fact that the agreement on the sharing of the Saarland market, the concerted practices involved in the pursuit of a solution on the limiting of sales by Cedest in Germany apart from the Saarland, and the 1984 agreement referred to in the letter of 22 September 1986 all had as their object the sharing of markets and the restriction of cross-frontier flows of cement between France and Germany, the Commission takes the view that the agreements and concerted practices may be deemed to be a single and continuous infringement. In addition, even though initially SFIC, BDZ and Lafarge were not parties to the agreement on the Saarland, they accepted it as from 23 June 1982, i.e. as from the time when they acted to extend the agreement on the Saarland to other German Länder and to fit the agreement into the broader framework of the regulation of trade flows between France and Germany. The single and continuous infringement relating to the restriction of cross-frontier flows between France and Germany was committed, from 23 June 1982 to 30 September 1989, by SFIC, Cedest, Ciments Français, Lafarge, BDZ, Dyckerhoff and Heidelberger.

2426. It should be observed that for there to be a 'single infringement there must be a series of efforts made by the various parties in pursuit of a single anti-competitive economic aim (see in particular Rhône-Poulenc, cited in paragraph 1053 above, paragraphs 125 and 126).

2427. In the present case it is therefore necessary to ascertain whether the conduct complained of in Article 3 (3) (a) of the contested decision was part of a single infringement.

2428. It has already been established that the Commission did not demonstrate the existence throughout the material period of one of the constituent elements of the infringement referred to in Article 3 (3) (a), namely the alleged agreement on the sharing of the Saarland market (see paragraphs 2172 to 2225 above). It is therefore necessary to determine whether, even in the absence of that constituent element, the existence of a single and continuous infringement is still established.

2429. The identity of object between the different elements of the infringement which were properly established is not open to dispute. Both the various concerted practices between 1982 and 1984, and the 1984 agreement, which remained in force until 12 August 1987, had as their object the regulation of cross-frontier flows of cement between France and Germany or the sharing of the markets (see paragraphs 2226 to 2420 above).

2430. Moreover, the participants in those aspects of the unlawful conduct knew, or ought to have known, that it was part of an overall plan in pursuit of that common unlawful object.

2431. The criticisms put forward by Ciments Français must therefore be rejected. Even if it were established, the mere fact, on which that undertaking relies, that the various elements of the single infringement found by the Commission did not have a wholly similar geographical scope does not show that those elements did not have an identical object, namely the regulation of flows of cement between France and Germany.

2432. The participation of Dyckerhoff, SFIC, Ciments Français, Heidelberger, Lafarge and BDZ in that single infringement is established, as all those applicants participated in one or other of the concerted practices established by the Commission and also in the 1984 agreement. The fact that Article 3 (3) (a) of the contested decision must be annulled in so far as it finds that Cedest participated in an infringement of Article 85 (1) of the Treaty does not affect that finding.

2433. Consequently, the Commission has demonstrated that the unlawful acts referred to in Article 3 (3) (a) whose existence it has duly shown, were sufficiently alike in terms of parties involved and subject-matter to be classified as a single infringement.

2434. When assessing the continuous nature of the infringement in the case of Ciments Français, Heidelberger and Lafarge, the Court must have regard to the various unlawful acts which have been validly attributed to them and the related dates.

2435. Ciments Français participated with Lafarge in a concerted practice whose object was to bring pressure to bear on Cedest and which was established on the basis of a document dating from 23 June 1982 (see paragraphs 2252 to 2281 above). It also participated with Dyckerhoff in a concerted practice, established on the basis of two documents dated 25 January and 17 May 1983 (see paragraphs 2316 to 2328 above). From 1984 to 12 August 1987 it participated in the agreement involving the general regulation of cement supplies between France and Germany (see paragraphs 2332 to 2418 above). The continuous nature of its participation in the single infringement is therefore established from 23 June 1982 to 12 August 1987. 2436. Heidelberger participated in a concerted practice with Dyckerhoff, established on the basis of a document relating to a meeting on 17 November 1982 (see paragraphs 2282 to 2294 above) and, from 1984 to 12 August 1987, in the agreement involving the general regulation of cement supplies between France and Germany (see paragraphs 2332 to 2418 above). The continuous nature of its participation in the single infringement is therefore established only from 17 November 1982 to 12 August 1987. Article 3 (3) (a) of the contested decision must therefore be annulled in so far as it finds that Heidelberger participated in the infringement from 23 June to 16 November 1982. 2437. Lafarge participated with Ciments Français in a concerted practice whose object was to bring pressure to bear on Cedest and which was established on the basis of a document dated 23 June 1982 (see paragraphs 2252 to 2281 above). It also participated with Dyckerhoff in a concerted practice, established on the basis of three documents dated 23 June, 28 July and 2 September 1982 (see paragraphs 2295 to 2315 above). From 1984 to 12 August 1987 it participated in the agreement involving the general regulation of cement supplies between France and Germany (see paragraphs 2332 to 2418 above). The continuous nature of its participation in the single infringement is therefore established from 23 June 1982 to 12 August 1987. 2438. Dyckerhoff also pleads infringement of Article 190 of the Treaty. However, it does not allege any failure to state reasons or any inadequacy of the reasons for the passages of the contested decision which deal with the Franco-German agreement. Its plea must therefore be rejected.

2439. It follows from all the foregoing that the Commission did not infringe either Article 85 (1) or Article 190 of the Treaty in finding, to the extent determined in paragraphs 2172 to 2438 above, that Dyckerhoff, SFIC, Ciments Français, Heidelberger, Lafarge and BDZ participated in the infringement referred to in Article 3 (3) (a) of the contested decision.

2440. Ciments Français also states that the Commission discriminated unjustifiably in its treatment of the objection relating to Spain and Portugal as against that of the objection relating to France and Germany: in the former case, it found only the trade association liable, and not the Spanish producers, whereas in the latter case it found the individual producers, including Ciments Français, liable as well as the national trade associations. Nor does the fact that the Spanish undertakings did not directly participate in the negotiations complained of justify that discrimination since, as the Commission itself has acknowledged, those undertakings were concerned by the alleged agreement and certain documents clearly show the significant role which they played. The Commission's approach to the members of the Spanish trade association in the case of the Hispano-Portuguese complaint is thus at variance with its approach to the indirect members of Cembureau in attributing the Cembureau agreement to them.

2441. That argument must be rejected. Even on the assumption that Ciments Français's position is comparable on all points with that of the Spanish producers to which it refers, it follows from the case-law (Woodpulp II, cited in paragraph 106 above, paragraph 146) that the fact that a trader who was in a position similar to that of Ciments Français was not found by the Commission to have committed any infringement cannot in any event constitute a ground for setting aside the finding of an infringement by that applicant, provided that the infringement was properly established. The foregoing grounds have enabled the Court to find that in the contested decision the Commission has established that both Ciments Français and the national trade association to which it belongs, namely SFIC, participated in the infringement referred to in Article 3 (3) (a).

2442. SFIC and Ciments Français also dispute, in the context of the arguments specifically devoted to the legality of Article 3 (3) (a), the existence of a link between that infringement and the Cembureau agreement. That argument will be dealt with in the context of the examination of the single nature of the infringement referred to in Article 1 of the contested decision (see paragraphs 4045 to 4048 and 4152 to 4154 below).

2443. As well as disputing the existence of a Franco-German agreement, Dyckerhoff, SFIC, Ciments Français, Heidelberger, Lafarge and BDZ also complain of an infringement of their rights of defence owing to the fact that they were denied access during the administrative procedure to documents in the Commission's file which might have proved useful to their defence.

Access to the file

2444. Only Lafarge (T-43-95) maintains that it did not have access, prior to the adoption of the contested decision, to incriminating evidence relating to the infringement found in Article 3 (3) (a). In its observations of 10 February 1997 it maintains that the documents from the German Bundeskartellamt file relating to its decision of 12 September 1988 (documents 33.126-20481, 20418 to 20443, 20416, 20417, 20492 to 20495, 20497 to 20499 and 20384 to 20394) were used by the Commission to establish an infringement. At the hearing in Case T-43-95 Lafarge stated, in answer to a question put by the Court, that the infringement in question was the cartel on the cement market in South-West Germany which was referred to in the chapters of the SO dealing with the German market (chapters 6 and 16).

2445. That argument must be rejected for the reasons stated in paragraph 296 above.

2446. Dyckerhoff, SFIC, Ciments Français, Heidelberger and BDZ have formulated a series of observations concerning access to exculpatory documents, based on those which they were able to consult following the measures of 2 October 1996 and 18 and 19 June 1997 (see paragraphs 164 and 168 above). Lafarge (T-43-95) has made no particular criticism on that point. At the hearing it also stated, in answer to a question put by the Court, that it was not relying on its internal memoranda of 6 August 1982 and 7 January 1983 in respect of the infringement of its right of access to the file.

2447. Dyckerhoff claims that the documents which it was able to consult following the measures of 2 October 1996 and 18 and 19 June 1997 confirm that the relations between the German and French producers and their national associations, BDZ and SFIC, do not give rise to any legal objection. In its observations of 7 February 1997 it observes that documents 33.126-14861 to 14874, 14883, 14802 to 14804, 19264 and 14801, which consist of the minutes of internal meetings of the French association and the annexes thereto, have no connection with the objections made against it but show that Franco-German relations consisted of contacts to which there was no objection in law, so that acquaintance with their content might have proved useful to the defence of its interests in the administrative procedure. In its observations of 5 January 1998 it again refers to documents 33.126-15443 to 15453 (record of what was said at a meeting between the delegations of German and French cement producers on 6 and 7 December 1983), 6044 to 6047 (letter from SNFCC dated 17 April 1989 communicating information relating to cement imports from the Federal German Republic for 1988 and the first two months of 1989) and 14623 (table of cement imports from the same Member State for 1989), the content of which confirms that the German and French cement producers merely engaged in a general exchange of views.

2448. The content of those documents, as analysed by Dyckerhoff, is not of such a nature as to establish that Dyckerhoff's rights of defence were infringed during the administrative procedure. It sheds no new light on the direct documentary evidence which, in so far as determined above, served to establish the objections made against Dyckerhoff in the SO (chapter 2, paragraph 12, and chapter 10, paragraph 61 (d)) and in the contested decision (recitals 22 and 50, Article 3 (3) (a)). Moreover, document 33.126-19264 (document 128 in the French national file), which is annexed to Dyckerhoff's observations of 7 February 1997, does not correspond to the description of its content given by Dyckerhoff, since it is a list of the references of three Greek undertakings and four Spanish undertakings. Similarly, apart from the fact that the statistics in documents 33.126-6044 to 6047 confirm the Commission's findings in paragraph 12 in fine of the SO (Chapter 2) and recital 22, paragraph 12, of the contested decision, there is clearly no longer any need to rule on Dyckerhoff's allegation that its rights of defence were infringed in that regard, since the Court has been able to conclude on the basis of the foregoing assessment that Article 3 (3) (a) of the contested decision must be annulled in so far as it finds the existence of an infringement on the basis of the statistics in the table set out in recital 22, paragraph 12 (see paragraphs 2408 to 2418 above).

2449. Ciments Français claims that the documents which it was able to consult following the measures of 2 October 1996 and 18 and 19 June 1997 might have proved useful to its defence. In its observations of 10 February 1997 it puts forward four arguments on the basis of the documents which it selected from those consulted.

2450. First, it maintains that the chapters of the SO on Germany would have enabled it to show that the Commission reached opposite conclusions concerning the existence of a Franco-German agreement and the identity of the parties to that agreement, depending on whether it looked at them from a national or an international viewpoint. Ciments Français points out that the chapters of the SO in question refer to the existence of three cartels connected with southern Germany but do not mention its name or that of its subsidiary, SZG. In that regard, it emphasises that it is the only French cement producer concerned by the objection relating to the Franco-German agreement which is not referred to in the German chapters of the SO. It alleges that the passages in the SO contradict the very documents on which the Commission relies as against it in connection with the alleged Franco-German agreement, more particularly the Vicat memorandum of 22 July 1982 (contested decision, recital 22, paragraph 1) and the Lafarge memorandum of 23 June 1982 (contested decision, recital 22, paragraph 4). In any event, the mere existence of a chapter of the SO devoted to Germany and referring to an alleged Franco-German agreement indicates that it was essential that Ciments Français had access to all the objections and documents relating to that alleged agreement.

2451. First, it should be pointed out that the Commission relied in the SO (chapter 2, paragraph 12, and chapter 10, paragraph 61 (d)) and in the contested decision (recitals 22 and 50) on specific documentary evidence to establish the existence of the Franco-German agreements and-or concerted practices and Ciments Français's participation in them. The fact that there is no reference to Ciments Français in the chapters of the SO on Germany (chapters 6 and 16) is not of such a kind as to shed new light on the specific documentary evidence which establishes the infringement referred to in Article 3 (3) (a) of the contested decision and Ciments Français's participation in those agreements and concerted practices to the extent determined above. Furthermore, contrary to what Ciments Français claims, the objections made specifically against the German producers in the chapters of the SO on Germany are not presented as being closely linked with those relating to the Franco-German agreements and practices. The cartels covering southern Germany are not confused, on a reading of the chapters of the SO devoted to Germany, with the Franco-German agreements and practices in which Ciments Français is accused of having participated. Nor do the passages in the German chapter of the SO on the Franco-German agreements and practices contain evidence against Ciments Français not mentioned in the international chapter of the SO dealing with the Franco-German agreements and practices (see paragraph 114 above). It follows that the fact that Ciments Français did not have access to the chapters of the SO on Germany (chapters 6 and 16) during the administrative procedure could not harm its defence.

2452. Second, Ciments Français observes that the Bundeskartellamt decision of 1 June 1989 concerning three cartels in southern Germany (annex 2 to its observations; pp. 176 to 209 of the 'German file) also fail to mention its name or that of its subsidiary, SZG, and do not refer to the existence of a Franco-German agreement whose object was to share the Saarland market or an agreement aimed at restricting Cedest's exports.

2453. That argument must be rejected for the reasons stated in paragraph 2451 above.

2454. Third, Ciments Français submits that a number of documents make it possible to place the letter dated 22 September 1986 from Mr Laplace, Chairman of SFIC and of Ciments Français, to Mr Schuhmacher, Chairman of BDZ and of Heidelberger (contested decision, recital 22, paragraph 10) in its proper context, namely normal and lawful relations with the French and German associations enjoyed independently of their members. That letter does not therefore in any way establish the existence of an agreement on the sharing of the markets in 1984 in which Ciments Français participated. Ciments Français refers to the evidence of Mr Steinbach, Chairman of BDZ, to the Commission on 6 March 1990 (document 33.126-16386), the letters of 21 November 1989 and 6 February 1990 from SNFCC to BDZ (documents 33.126-16603 to 16608) and the letters of 31 January and 16 February 1990 from BDZ to SNFCC (documents 33.126-16601 and 16602). Ciments Français further states that the existence of independent and normal relations between the two associations was already suggested by the letter dated 20 December 1983 from the German association to the French association, which is in the French file (document 33.126-14762). It also refers, by way of example, to document 33.126-14894, in the French file, which sets out information communicated to the French association by BDZ for several years, and to documents 33.126-14814, 14816, 14818 and 14820, to show that BDZ was in the habit of sending overall statistics to the French association.

2455. It should be observed at the outset that Ciments Français cannot derive any argument from the letter of 20 December 1983 (document 33.126-14762) in the context of its plea alleging infringement of its rights of defence (see paragraph 266 above), as it had access to that document during the administrative procedure.

2456. Nor do the other documents on which it relies establish an infringement of its rights of defence during the administrative procedure. First, they are not susceptible of shedding new light on the content of the letter of 22 September 1986 (contested decision, recital 22, paragraph, 10) with regard to the context in which that letter was drafted as described in those documents. All the documents in question were drafted months, or even years, after the letter of 22 September 1986. Next, it is apparent from the SO (Chapter 2, paragraph 12) that the Commission had observed that the French and German associations had been exchanging statistics for several years. Last, the content of those documents does not shed a different light on the documents referred to in the SO (Chapter 2, paragraph 12) and in the contested decision (recital 22), which show that relations between the French and German industries were not limited solely to the innocent exchange of statistics between the two national trade associations, as, according to Ciments Français, the documents to which it had access following the measure of organisation of procedure of 2 October 1996 establish. It follows that Ciments Français's third argument must also be rejected.

2457. Fourth, Ciments Français claims that the documents relating to the Hispano-Portuguese agreement confirm its argument that the fact that it is accused of having allegedly participated in actions to limit exports between France and Germany is incompatible with the treatment of the situation in Spain and Portugal and reveals discrimination in the procedure. It also observes that only the Spanish trade association is held liable in the contested decision in connection with the Hispano-Portuguese agreement, although in the SO the Commission maintained that the Spanish trade association and representatives of certain Spanish producers had participated in meetings aimed at overcoming the problems posed by Portuguese cement exports to Spain. By way of example, it refers to documents 33.322-1410 to 1412 and 1400, also referred to in recital 21, paragraph 5, of the contested decision but which remained inaccessible throughout the administrative procedure.

2458. However, Ciments Français cannot claim to establish on that basis that there was an infringement of its rights of defence during the administrative procedure. It is sufficient to observe that, as Ciments Français itself states in its submissions, the content of the SO (paragraphs 11 and 61 (c)) did not give grounds for the conclusion that the Commission would not find that the Spanish undertakings referred to therein had participated in the Hispano-Portuguese agreement. Access to the documents during the administrative procedure would not therefore have allowed Ciments Français to persuade the Commission to adopt a different decision on that point. Its fourth argument must therefore be rejected.

2459. In its observations of 21 November 1997 Ciments Français put forward eight documents on the basis of which it sought to establish that it did not participate in the Franco-German agreements and concerted practices, regarded as a single and continuous infringement, referred to in Article 3 (3) (a) of the contested decision. It refers to a letter from Cedest to Lafarge dated 4 January 1979 describing the difficulties encountered in the relations between Cedest and Wössingen or between Cedest and Lafarge (documents 33.126-7505 to 7507); an internal Lafarge memorandum dated 30 June 1982 which also describes the deterioration of relations between Cedest and Wössingen and between Cedest and Lafarge and the anxiety of the large German cement producers (documents 33.126-7038 to 7040); an internal Lafarge memorandum dated 6 August 1982, which refers to Lafarge's strategy in Germany and to the Cedest affair and mentions, in particular, the forces present and the proposals for action (documents 33.126-7522 to 7524); an internal Lafarge memorandum dated 7 September 1982 which shows that the problems caused by Cedest's deliveries to Germany still concerned the same protagonists in France and in Germany (documents 33.126-6686 and 6687); a telex from Lafarge dated 26 October 1982 referring to the commitments given by Cedest to Wössingen in the past (documents 33.126-7110); and an internal Lafarge memorandum dated 7 January 1983 referring to discussions between Heidelberger and Dyckerhoff on the situation in Rheinland-Westphalia and describing a meeting between themselves and Cedest (documents 33.126-7514 and 7516). Ciments Français concludes from the fact that there is no reference to its name in those various documents that it was not concerned by the situation brought about by Cedest's conduct in Germany. It adds that in a memorandum dated 23 May 1985, probably attributable to Lafarge, Ciments Français is always presented as an minor player in the Franco-German area, since Lafarge regards it as a competitor in France but not in Germany (documents 33.126-7408 to 7412). Ciments Français also observes that an internal Heidelberger memorandum dated 22 February 1983 describes Heidelberger's proposals to penetrate France in retaliation against Cedest and shows the intensity of competition between French and German producers at a time when the Commission claims that those producers were combining to share the market (document 33.126-3477). Those various documents far from corroborate the documents presented by the Commission, in particular the Vicat memorandum dated 22 July 1982 (contested decision, recital 22, paragraph 1), which, moreover, comes from an undertaking which, according to the Commission, is not even concerned by that situation. Ciments Français also concludes from those documents that the Franco-German agreement referred to in the international objections and the Franco-German cartel centred on Wössingen referred to in the German national objections were inextricably linked, since Wössingen's commercial policy in Germany and Cedest's exports to Germany were the cause of the practices identified in the international objections. The documents also make it possible to call in question the link which the Commission has established between the alleged agreement on sharing the Saarland market and the other practices called in question under the alleged Franco-German agreements and practices. They therefore preclude the existence of a single and continuous infringement.

2460. It should be observed, however, that the documents referred to above are not susceptible of establishing the existence of an infringement of Ciments Français's rights of defence. The comments which it makes on the basis of those documents do not shed new light on the specific documentary evidence which the Commission used to establish Ciments Français's participation in the concerted practice designed to bring pressure to bear on Cedest (SO, chapter 2, paragraph 12; contested decision, recitals 22, paragraph 4, and 50, paragraph 3), the concerted practice with Dyckerhoff (SO, chapter 2, paragraph 12; contested decision, recitals 22, paragraphs 8 and 9, and 50, paragraph 3) and the agreement on the sharing of the markets concluded in 1984 (SO, chapter 2, paragraph 12; contested decision, recitals 22, paragraph 10, and 50, paragraph 3). As regards the latter, it should be observed that its existence follows in particular from the letter dated 22 September 1986 which Mr Laplace, Chairman of SFIC and of Ciments Français, sent to Mr Schuhmacher, Chairman of BDZ and of Heidelberger (contested decision, recital 22, paragraph 10).

2461. Heidelberger claims that the documents which it was able to consult following the measures of 2 October 1996 and 18 and 19 June 1997 confirm that no Franco-German agreement was established and, in any event, that it did not participate in such an agreement. In its observations of 10 February 1997 it states at several points that the only conclusion that can be drawn from the documents in the French file is that the French undertakings were concerned only with the situation on the French market. It thus refers to documents 33.126-14809, 14810, 14826, 14827, 14894, 5626 to 5634, 5637 to 5640, 5641 to 5644, 5645 to 5647, 5651 to 5656, 5664 to 5670, 5675, 13529, 5705 to 5708 and 5718, as confirming that the French undertakings were anxious to restrict the volume of imports into their national market but contains no evidence to support the conclusion that there was an agreement between French and German producers and certainly not one between Heidelberger and the French producers.

2462. In its observations of 20 February 1998 Heidelberger again claims that documents 33.126-4135 and 4383 confirm that the alleged Franco-German agreement did not exist. The first document is an internal Ciments Français memorandum dated 15 May 1986, the content of which indicates that Ciments Français was then considering extending its services to the German market; that contradicts the existence of a Franco-German agreement. Heidelberger emphasises that the Commission relied mainly on the content of a letter which the Chairman of Ciments Français sent to its own Chairman on 22 September 1986 to demonstrate the existence of that alleged agreement (contested decision, recital 50, paragraph 3). The second document is also an internal Ciments Français memorandum describing its thoughts on the strategy which would allow it to penetrate the European markets; that helps refute the existence of a Cembureau principle of non-transhipment to domestic markets and, a fortiori, of a Franco-German agreement.

2463. The content of the documents referred to in the previous paragraphs, as analysed by Heidelberger, is not of such a nature as to establish an infringement of its rights of defence during the administrative procedure. It sheds no fresh light on the specific documentary evidence on which the Commission relied in the SO (chapter 2, paragraph 12, and chapter 10, paragraph 61 (d)) and in the contested decision (recitals 22 and 50) in order to establish the existence of the Franco-German agreements and concerted practices and Heidelberger's participation therein. Furthermore, according to the information on the List (see paragraph 5 above), documents 33.126-14809 and 14826 were accessible during the administrative procedure (see paragraph 250 above). During the administrative procedure Heidelberger could therefore have raised the argument which it now raises before the Court. Last, it follows from the internal Ciments Français memorandum dated 15 May 1986 (document 33.126-4135) that the form of expansion referred to in that memorandum entailed working together with other undertakings active on the European market. As the Commission rightly points out in its observations of 30 March 1998, however, apart from the fact that that circumstance sheds no fresh light on the specific documentary evidence used by it, the agreements and the expansion strategies involving company takeovers are not mutually exclusive.

2464. BDZ claims in its observations of 16 January 1998 that SFIC's statistics reveal the existence of a significant volume of exports by French producers between 1978 and 1988 (documents 33.126-1427, 14630, 14637, 14661 and 14663), which confirms that there was no agreement between French and German manufacturers.

2465. However, the documents on which BDZ relies also fail to establish the existence of an infringement of its rights of defence during the administrative procedure.

2466. Document 33.126-1427 has no relevance to BDZ's argument, since it sets out the general conditions of sale of CCB (see paragraph 1169 above). It must therefore be disregarded without further examination.

2467. Next, while it is true that documents 33.126-14630 and 14637, extracts from the SNFCC 'Courier d'Information of 10 October 1989, contain data on French exports for 1978 to 1988, for two reasons BDZ cannot draw any particular conclusions from those documents as to the evidential significance of the volume of French exports to Germany between 1978 and 1988. First, the tables in both those documents relate to export deliveries of 'all binding materials and clinker, without distinguishing between their destinations outside France, which makes it impossible to draw any conclusions as to the volume of French exports of cement to Germany. Second, even supposing that those figures related only to French exports of cement to Germany, the 'export deliveries of all binding materials analysed in document 33.126-14630 went from 1 198 000 tonnes in 1978 to 1 153 000 tonnes in 1988. Similarly, the data relating to clinker exports between 1978 and 1988 set out in document 33.126-14637 indicate that those deliveries went from 2 310 000 tonnes in 1978 to 878 000 tonnes in 1988. A mere reading of those documents therefore contradicts the very basis of BDZ's argument. Nor, for two reasons, can documents 33.126-14661 and 14663, which are extracts from SNFCC's monthly information bulletin for December 1987, be relied on to support that argument. First, like documents 33.126-14630 and 14637, documents 33.126-14661 and 14663 fail to state the destinations of the exports which they record. Second, the data set out in documents 33.126-14661 and 14663 only contain a comparison between the years 1986 and 1987. In any event, the Court has already found on the basis of direct documentary evidence that the Commission has shown that BDZ participated in the infringement referred to in Article 3 (3) (a).

2468. It follows from the foregoing that the rights of defence of Dyckerhoff, SFIC, Ciments Français, Heidelberger, Lafarge and BDZ in relation to their participation in the infringement referred to in Article 3 (3) (a) of the contested decision, unlike those of Cedest, were not affected by the fact that they did not have access to the documents on which they have relied during the present procedure (see paragraphs 2284 to 2289 above).

Conclusion

2469. To conclude, Article 3 (3) (a) of the contested decision will be annulled:

as regards Cedest, in its entirety;

as regards Dyckerhoff, Ciments Français and Lafarge, in so far as it finds that they participated in an agreement on sharing the Saarland market and in an infringement of Article 85 (1) of the Treaty after 12 August 1987;

as regards SFIC, in so far as it finds that it participated in an agreement on the sharing of the Saarland market, in a concerted practice with BDZ before 1984, in a concerted practice aimed at exerting pressure on Cedest and in an infringement of Article 85 (1) of the Treaty after 12 August 1987;

as regards Heidelberger, in so far as it finds that it participated in an agreement on the sharing of the Saarland market and in an infringement of Article 85 (1) of the Treaty between 23 June and 16 November 1982 and after 12 August 1987;

as regards BDZ, in so far as it finds that it participated in an agreement on the sharing of the Saarland market, in a concerted practice with SFIC before 1984 and in an infringement of Article 85 (1) of the Treaty after 12 August 1987.

2470. The remaining pleas which have been considered are rejected.

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