CELEX: 61999CJ0199
Appeal
Agreements and concerted practices
European producers of beams

By application lodged at the Court Registry on 25 May 1999, Corus UK Ltd, formerly British Steel plc, brought an appeal under
Article 49 of the ECSC Statute of the Court of Justice against the judgment of the Court of First Instance of 11 March 1999
in Case T-151/94
British Steel
v
Commission
[1999] ECR II-629 (
the judgment under appeal), by which the Court of First Instance dismissed in part its action for annulment of Commission Decision 94/215/ECSC of 16
February 1994 relating to a proceeding pursuant to Article 65 of the ECSC Treaty concerning agreements and concerted practices
engaged in by European producers of beams (OJ 1994 L 116, p. 1) (
the contested decision). By that decision, the Commission imposed a fine on the appellant under Article 65 of the ECSC Treaty.
Facts and the contested decision
According to the judgment under appeal, the European steel industry underwent, from 1974 onwards, a crisis characterised by
a fall in demand giving rise to problems of excess supply and capacity and low prices.
In 1980, after having attempted to manage the crisis by way of unilateral voluntary commitments given by undertakings as regards
the amount of steel put on the market and minimum prices (
the Simonet Plan) or by fixing guide and minimum prices (
the Davignon Plan, the
Eurofer I agreement), the Commission declared that there was a manifest crisis within the meaning of Article 58 of the ECSC Treaty
and imposed mandatory production quotas for, inter alia, beams. That Community system came to an end on 30 June 1988.
Long before that date, the Commission had announced in various communications and decisions that the quota system was to be
abandoned, pointing out that the end of that system would mean a return to a market characterised by free competition between
undertakings. However, the sector continued to be affected by excess production capacity which, according to expert opinion,
had to undergo a sufficient and rapid reduction to enable undertakings to meet world competition.
From the end of the quota system, the Commission set up a surveillance system involving the collection of statistics on production
and deliveries, monitoring of market developments and regular consultation with undertakings on the market situation and trends.
The undertakings in the sector, some of which were members of the Eurofer trade association, thus maintained regular contact
with DG III (Directorate-General for the
Internal Market and Industrial Affairs) of the Commission (
DG III) by way of consultation meetings. The surveillance system came to an end on 30 June 1990 and was replaced by an individual
and voluntary information scheme.
At the beginning of 1991, the Commission carried out a series of inspections in the offices of a number of steel undertakings
and associations of undertakings in the sector. A statement of objections was sent to them on 6 May 1992. Hearings were held
at the beginning of 1993.
On 16 February 1994, the Commission adopted the contested decision, by which it found that 17 European steel undertakings
and one of their trade associations had participated in a series of agreements, decisions and concerted practices designed
to fix prices, share markets and exchange confidential information on the market for beams in the Community, in breach of
Article 65(1) of the ECSC Treaty. By that decision, it imposed fines on 14 undertakings for infringements committed between
1 July 1988 and 31 December 1990.
The proceedings before the Court of First Instance and the judgment under appeal
On 13 April 1994, the present appellant brought an action before the Court of First Instance for annulment of the contested
decision.
By the judgment under appeal, the Court of First Instance granted the present appellant's application in part and reduced
the fine imposed on it.
Forms of order sought by the parties
The appellant claims that the Court should:
─
set aside the judgment under appeal;
─
in so far as the circumstances permit, annul the contested decision;
─
in the alternative, reduce or cancel the fine set by the Court of First Instance, which was imposed on the appellant by Article
4 of the contested decision;
─
order the Commission to pay interest, at such rate as is considered by the Court to be fair and just, on such part of the
fine as is repaid as a result of annulment of the judgment under appeal or of the contested decision, in respect of the period
from payment of the fine by the appellant on 2 June 1994 until repayment by the Commission; and
─
order the Commission to pay the costs.
The Commission contends that the Court should:
─
dismiss the appeal;
─
order the appellant to pay the costs.
The grounds of appeal
The appellant raises six grounds of appeal:
1.
infringement of the right to a fair hearing within a reasonable period of time;
2.
infringement of essential procedural requirements when the contested decision was adopted;
3.
infringement of Article 65(1) of the ECSC Treaty;
4.
infringement by the Court of First Instance of the rights of the defence in that it failed to censure a breach of the appellant's
rights of defence during the administrative procedure;
5.
infringement of Article 15 of the ECSC Treaty as regards the statement of reasons for the fines in the contested decision;
6.
infringement of Article 33 of the ECSC Treaty in that the Court of First Instance failed to annul Article 1 of the contested
decision in so far as it concerns infringements committed prior to 1 July 1988.
The paragraphs of the judgment under appeal challenged by each of the grounds of appeal will be indicated as those grounds
are examined.
The appeal
The first ground of appeal
The first ground of appeal alleges infringement of Article 6 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms, signed in Rome on 4 November 1950, (
the ECHR). The appellant claims that the Court of First Instance deprived it of its right to a fair hearing within a reasonable period.
This ground can be divided into three limbs, which it is appropriate to examine separately.
The first limb of the first ground of appeal
The appellant submits that the proceedings before the Court of First Instance were not fair. There was an infringement of
the principle of equality of arms, notably on account of the late disclosure of numerous documents. Thus, whereas the hearing
began on 23 March 1998, the documents produced by the Commission following the order of the Court of First Instance of 10
December 1997 in Cases T-134/94, T-136/94, T-137/94, T-138/94, T-141/94, T-145/94, T-147/94, T-148/94, T-151/94, T-156/94
and T-157/94
NMH Stahlwerke and Others
v
Commission
[1997] ECR II-2293 were not made available until 14 January 1998, the method used to calculate the fines was disclosed on
19 March 1998, a copy of the minutes of the Commission meeting during which the contested decision was adopted (
the minutes) was made available to the appellant on 20 March 1998 and further documentation was not produced until the hearing.
The Commission observes that the documents produced on 14 January 1998 were thus available two months before the hearing,
which gave the appellant ample time to obtain and inspect them, that, while the method of calculating the fines was not disclosed
until 19 March 1998, it was, however, in amplification of replies already given on 19 January and 20 February 1998, as is
clear from paragraph 66 of the judgment under appeal, and that, while the definitive minutes were not lodged with the Court
of First Instance until 19 March 1998 and only made available to the appellant the following day, the draft of those minutes
had already been available for some weeks by virtue of the Court of First Instance's order of 16 February 1998, as is pointed
out in paragraph 64 of the judgment under appeal. Moreover, the Commission disputes the claim that the appellant experienced
difficulty as a result of the late disclosure of documents, observes that the appellant does not identify any specific point
on which it was put at a disadvantage by the matters of which it now complains and points out that the appellant made no application
to the Court of First Instance for the hearing to be postponed on account of the date of production of any of the material
to which it refers.
In its reply, the appellant challenges the Commission's arguments. It submits, in particular, that the replies provided by
the Commission in January and February 1998 were incomplete and did not enable the lawfulness of the method used to calculate
the fines to be assessed. With respect to the definitive version of the minutes, it adds that the Commission failed to comply
with a clear and unambiguous request of the Court of First Instance and did not produce that document until the day before
the hearing.
Findings of the Court
The principle of respect for the rights of the defence is a fundamental principle of Community law. That principle is infringed
where a judicial decision is based on facts and documents which the parties themselves, or one of them, have not had an opportunity
to examine and on which they have therefore been unable to comment (Joined Cases 42/59 and 49/59
SNUPAT
v
High Authority
[1961] ECR 53, at p. 84).
First of all, the appellant has not established how the allegedly late production of the documents in question adversely affected
it, that is to say, how its defence might have been better assured had the documents been available to it earlier.
In any event, the documents made available on 14 January 1998 following the order in
NMH Stahlwerke
, cited above, were produced sufficiently in advance of the hearing to allow the appellant to examine them and adopt a position
on their content.
In paragraph 628 of the judgment under appeal, the Court of First Instance held that the method used to calculate the fine
did not constitute an additional statement of reasons for the contested decision. The document setting out the method consisted
of a table of one page for each undertaking. It was lodged on 19 March 1998 and supplemented the replies already given in
that regard. In view of the length of the arguments presented during the hearing, which lasted from 23 to 27 March 1998, it
does not appear that production of that document only four days before the beginning of the hearing adversely affected the
appellant by depriving it of an opportunity adequately to inspect its content in order to be able to express its views thereon.
Moreover, the draft minutes were made available on 22 January 1998. It was only for the purpose of examining whether the contested
decision had been authenticated that a true copy of the original of the minutes was produced on 19 March 1998. Having regard
to the arguments put forward by the parties, which the Court of First Instance summarised in paragraphs 104 to 116 of the
judgment under appeal, it does not appear that the rights of the defence were adversely affected by the fact that that document
was produced only a few days before the hearing.
As regards the various documents submitted to the Court of First Instance at the hearing, the nature of which is not specified
by the appellant, with the result that it is impossible to examine their relevance to its rights of defence, the minutes of
that hearing do not indicate that the appellant objected to their being lodged.
It follows that the appellant has failed to establish that the Court of First Instance infringed the principle of the rights
of the defence by failing to ensure that the appellant had sufficient time in which to inspect the various documents submitted
and to express its views on them.
It follows that the first limb of the first ground of appeal is unfounded.
The second limb of the first ground of appeal
The appellant submits that the Court of First Instance committed errors as regards the examination of witnesses.
The appellant claims that it had no opportunity to question the three witnesses heard by the Court of First Instance prior
to the hearing and that it was given no notice of the statements to be made by them. Furthermore, it was denied the right
to put questions to those witnesses or otherwise to challenge the evidence given by them. That infringement of the appellant's
rights was made more serious because, in the judgment under appeal, the Court of First Instance based its findings to a large
extent on the evidence given by those witnesses.
The Commission contends that the procedure for examining the witnesses was properly conducted. Moreover, the appellant fails
to identify any provision in the Rules of Procedure of the Court of First Instance which might have been infringed. It notes
that, in the Community legal system, witnesses are the witnesses of the Community Court and not of the parties. The questions
to be put to the witnesses are decided upon by the Court of First Instance alone and it is in that Court's discretion to determine
whether the parties should be given an opportunity to question them.
Findings of the Court
As the procedure for examination of witnesses is specifically defined by the Rules of Procedure of the Court of First Instance,
this limb of the ground of appeal alleging infringement of the appellant's rights of defence can be accepted as being well
founded only in so far as the appellant establishes that there was an irregularity in that procedure which adversely affected
its interests.
The second and fourth subparagraphs of Article 68(4) of the Rules of Procedure of the Court of First Instance are worded as
follows: The witness shall give his evidence to the Court of First Instance, the parties having been given notice to attend. After
the witness has given his main evidence the President may, at the request of a party or of his own motion, put questions to
him....Subject to the control of the President, questions may be put to witnesses by the representatives of the parties.
According to the minutes of the hearing which was held before the Court of First Instance on 23 March 1998, the President
of the Second Chamber, Extended Composition, announced that that Chamber intended to hear a number of witnesses. The minutes
state that the parties did not submit observations in that regard. The witnesses were examined in an open hearing in the presence
of all of the parties.
The appellant does not show and in no way does it appear that, in this case, the Court of First Instance acted in breach of
the procedure for examining witnesses. In particular, the appellant fails to specify any question which the President refused
or omitted to pose and the minutes of the hearing of the witnesses do not show that any request to put such a question was
made.
It is sufficient to state that, at the hearing of oral argument ─ which, as was noted in paragraph 22 of this judgment, lasted
from 23 to 27 March 1998 ─ the appellant did have an opportunity to discuss the statements made by the witnesses which were
used as evidence. In addition, it does not appear that the appellant applied to the Court of First Instance for leave to examine
or comment on those statements at an earlier stage.
It follows from these findings that the second limb of the first ground of appeal is unfounded.
The third limb of the first ground of appeal
The appellant complains that the duration of the proceedings before the Court of First Instance was excessive.
The appellant observes that the period from lodging of the application until delivery of the judgment under appeal was 59
months. That judgment was delivered almost one year after the oral procedure had been closed. As a result of various delays,
the identity of the President of the Chamber changed and two of the five judges who were present at the hearing did not take
part in the deliberations. This served to hinder continuity in the conduct of the case and a thorough consideration of the
issues raised.
The Commission contends that, if the duration of the proceedings in this case is compared with that examined by the Court
in Case C-185/95 P
Baustahlgewebe
v
Commission
[1998] ECR I-8417, it must be concluded that the duration of the proceedings before the Court of First Instance in this case
was not excessive. At the very least, account should be taken of the
exceptional circumstances within the meaning of the
Baustahlgewebe
judgment, such as the new issues raised in relation to access to documents and the number of procedural documents required.
The Commission also submits that the change of President of the Chamber was not unusual as it is an annual event. Similarly,
the fact that two of the judges did not take part in the deliberations is not out of the ordinary and was merely the result
of the expiry of their mandates.
The appellant maintains that the overall duration of the proceedings was excessive and that no objective justification for
the delays can be advanced. In particular, the 15 months which the Court of First Instance spent examining the small number
of documents classified by the Commission as internal cannot be justified. Furthermore, it submits that the Commission's arguments
are disingenuous since it itself caused many of the delays.
Findings of the Court
The general principle of Community law that everyone is entitled to a fair hearing, and in particular the right to legal process
within a reasonable period, is applicable in the context of proceedings brought against a Commission decision imposing fines
on an undertaking for infringement of competition law (
Baustahlgewebe
, cited above, paragraph 21, and Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P, C-251/99 P, C-252/99
P and C-254/99 P
Limburgse Vinyl Maatschappij and Others
v
Commission
[2002] ECR I-8375, paragraph 179).
The reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular,
the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent
authorities (
Baustahlgewebe
, paragraph 29, and
Limburgse Vinyl Maatschappij and Others
, cited above, paragraph 187).
The Court has held in that regard that this list of criteria is not exhaustive and that the assessment of the reasonableness
of a period does not require a systematic examination of the circumstances of the case in the light of each of them, where
the duration of the proceedings appears justified in the light of one of them. The purpose of those criteria is to determine
whether the time taken in the handling of a case is justified. Thus, the complexity of the case or the dilatory conduct of
the applicant may be deemed to justify a duration which is prima facie too long. Conversely, the time taken may be regarded
as longer than is reasonable in the light of just one criterion, in particular where its duration is the result of the conduct
of the competent authorities. Where appropriate, the duration of a procedural stage may be regarded as reasonable from the
outset if it appears to be consistent with the average time taken in handling a case of its type (
Limburgse Vinyl Maatschappij and Others
, paragraph 188).
In the present case, the proceedings before the Court of First Instance commenced with the lodging on 13 April 1994 of the
application bringing the present appellant's action for annulment of the contested decision and were concluded on 11 March
1999, the date of delivery of the judgment under appeal. They thus lasted almost five years.
Such a duration is, prima facie, considerable. However, it should be noted that 11 undertakings brought actions for annulment
of the same decision in four languages of procedure.
As was pointed out in paragraphs 51 to 57 of the judgment under appeal, the Court of First Instance had to rule on a variety
of claims regarding access to the documents relating to the administrative procedure. The Commission having lodged, on 24
November 1994, a file containing 11 000 documents relating to the contested decision, submitting that the undertakings in
question should not be given access to the documents containing business secrets or to the Commission's own internal documents,
the Court of First Instance had to hear the parties on that issue, examine all the documents and decide to which documents
each of the applicants might have access.
By order of 19 June 1996 in Cases T-134/94, T-136/94, T-137/94, T-138/94, T-141/94, T-145/94, T-147/94, T-148/94, T-151/94,
T-156/94 and T-157/94
NMH Stahlwerke and Others
v
Commission
[1996] ECR II-537, the Court of First Instance ruled on the applicants' right of access to the documents in the Commission's
file emanating, first, from the applicants themselves and, second, from third parties not involved in the proceedings which
the Commission had, in the interests of those parties, classified as confidential.
By order of 10 December 1997 in
NMH Stahlwerke and Others
v
Commission
, cited above, the Court of First Instance ruled on the applicants' requests for access to the documents classified by the
Commission as
internal.
The various actions brought by the undertakings affected by the contested decision were joined for the purposes of measures
of inquiry and the oral procedure. As is explained in paragraphs 58 to 67 of the judgment under appeal, a number of measures
of inquiry were ordered by the Court of First Instance in order to prepare that procedure. In that connection, the Court of
First Instance addressed various written questions to the parties and ordered the production of documents and the hearing
of witnesses.
The oral procedure was closed at the end of the hearing on 27 March 1998.
The judgment under appeal was delivered on 11 March 1999, that is to say, on the same day as the other 10 judgments ruling
on the actions brought against the contested decision.
It follows from the above findings that the duration of the proceedings leading to the judgment under appeal can be explained,
inter alia, by the number of undertakings which participated in the concerted practice at issue and brought actions against
the contested decision, which made it necessary to examine those different actions simultaneously, by the legal issues relating
to access to the Commission's voluminous file, by the in-depth examination of the file by the Court of First Instance and
by the linguistic constraints imposed by that Court's Rules of Procedure.
It cannot validly be claimed that the Court of First Instance remained inactive for several months even though only a small
number of documents had to be examined. It is sufficient to refer to paragraphs 51 to 57 of the judgment under appeal, in
which the Court of First Instance explained the procedure necessary to organise access to the Commission's documents.
Contrary to what the appellant claims, responsibility for delays in conducting the proceedings cannot be attributed to the
Commission. Having been asked to do so by letter of the Registry of the Court of First Instance of 25 October 1994, the Commission
lodged its file at the Registry on 24 November 1994. Moreover, the Commission cannot be held responsible for the legal difficulties
relating to access to certain documents, which were for the most part new and which the Court of First Instance had to resolve
by orders following an examination of the documents which had been the subject of challenge. In addition, it does not appear
that the Commission was excessively late in producing the other documents requested by the Court of First Instance.
In view of the factors set out in paragraph 52 of this judgment, the period of just under one year which elapsed between closure
of the oral procedure and delivery of the judgment cannot be regarded as excessive.
It follows from all of the above findings that the duration of the proceedings before the Court of First Instance is justified
in the light of the particular complexity of the case.
As regards the change of President of the Chamber of the Court of First Instance hearing the case and the fact that two judges
were prevented from taking part in the deliberations, the appellant has not established any infringement of the Rules of Procedure
of the Court of First Instance.
The third limb of the first ground of appeal is therefore unfounded.
It follows from these findings that the first ground of appeal is unfounded.
The second ground of appeal
The second ground of appeal alleges infringement of essential procedural requirements when the contested decision was adopted.
Essentially, the appellant submits, first, that the Court of First Instance erred in law in holding, in paragraph 137 of the
judgment under appeal, that there were no substantive differences between the versions C(94)321/2 and C(94)321/3 of the contested
decision and the versions of that decision notified to the appellant.
Second, the appellant argues that the reasons given by the Court of First Instance for its findings as regards authentication
of the contested decision are inadequate and contradictory. In particular, the fact that the photocopy of the minutes was
produced to the Commission's agent, and then by him to the Court of First Instance, in the same cardboard box as the copies
of documents C(94)321/2 and C(94)321/3, can in no way serve as a basis for the assumption by the Court of First Instance that
those documents had been annexed to the original version of the minutes in accordance with the requirements of Article 16
of the Commission's Rules of Procedure as laid down in Commission Decision 93/492/Euratom, ECSC, EEC of 17 February 1993 (OJ
1993 L 230, p. 15). Similarly, the Court of First Instance erred when, in paragraph 149 of the judgment under appeal, it accepted
certification of the photocopy by the Secretary-General of the Commission as proof that the minutes had been signed. According
to the appellant, a photocopy cannot serve as proof of any matter relating to the authenticity of the document which it reproduces;
only production of the original version of the minutes, it argues, could have established that those minutes satisfied the
requirements of the Rules of Procedure.
Third, the appellant takes the view that the Court of First Instance ought to have verified the date of authentication because
it cannot be assumed that authentication took place on the date on which the minutes were adopted.
The Commission contends that the ground of appeal is inadmissible inasmuch as it challenges findings of fact and, in the alternative,
that it is unfounded.
Findings of the Court
First of all, it should be pointed out that, as is clear from Article 32d(1) CS and Article 51 of the ECSC Statute of the
Court of Justice, an appeal lies on a point of law only. Therefore, the Court of First Instance has sole jurisdiction to find
and appraise the relevant facts and to assess the evidence, except where those facts and that evidence have been distorted
(see, to that effect, Case C-136/92 P
Commission
v
Brazzelli Lualdi and Others
[1994] ECR I-1981, paragraphs 49 and 66;
Limburgse Vinyl Maatschappij and Others
, paragraph 194; and Case C-312/00 P
Commission
v
Camar and Tico
[2002] ECR I-11355, paragraph 69).
The appellant is here challenging the assessment of evidence by the Court of First Instance. The second ground of appeal challenges
the following paragraphs of the judgment under appeal:
─
paragraph 146, in which the Court of First Instance assumed that documents C(94)321/2 and C(94)321/3 were annexed to the minutes;
─
paragraph 147, in which the Court of First Instance took the view that it had not been established that there was any substantive
difference between the notified version of the contested decision and that annexed to the minutes;
─
paragraph 148, in which the Court of First Instance ruled that documents C(94)321/2 and C(94)321/3 had to be regarded as having
been authenticated by the signatures of the President and the Secretary-General of the Commission on the first page of the
minutes;
─
paragraph 149, in which the Court of First Instance decided that the certification of authenticity by the titular Secretary-General
of the Commission provided sufficient proof for legal purposes that the original version of the minutes bore the original
signatures of the President and the Secretary-General of the Commission; and
─
paragraph 151, in which the Court of First Instance held that the minutes had been properly signed by the President and the
Secretary-General of the Commission on 23 February 1994.
With respect to the need to request production of the original of the minutes, it is for the Community Court to decide, in
the light of the circumstances of the case and in accordance with the provisions of the Rules of Procedure on measures of
inquiry, whether it is necessary for a document to be produced. As regards the Court of First Instance, it follows from Article
49 read in conjunction with Article 65(b) of its Rules of Procedure that a request for production of documents is a measure
of inquiry which the Court may order at any stage of the proceedings (Case C-286/95 P
Commission
v
ICI
[2000] ECR I-2341, paragraphs 49 and 50).
In paragraph 149 of the judgment under appeal, the Court of First Instance examined the photocopy of the minutes which had
been submitted to it and concluded that the fact that the first page of that document bore the stamp
certified to be a true copy, Secretary-General Carlo Trojan and that this stamp bore the original signature of Mr Trojan, the titular Secretary-General of the Commission, was sufficient
to establish that the photocopy was a true copy of the original.
As was pointed out in paragraph 65 of this judgment, the Court of First Instance has sole jurisdiction to assess the probative
value of a document, as it did in paragraph 149 of the judgment under appeal, and its decision on this issue cannot, in principle,
be the subject of review by the Court.
Given that this copy of the minutes was available to the Court of First Instance, which it accepted as being a certified true
copy of the original, it was under no obligation whatsoever to adopt a further measure for taking evidence in order to obtain
the original if it formed the view that such a measure was unnecessary to establish the truth (see, to that effect,
Limburgse Vinyl Maatschappij and Others
, paragraph 404).
It follows that the second ground of appeal is in part inadmissible and in part unfounded.
The third ground of appeal
The third ground of appeal alleges infringement of Article 65(1) of the ECSC Treaty. It can be divided into two limbs: the
first alleges an error in the legal assessment of the evidence and the second alleges misinterpretation of Article 65(1).
The first limb of the third ground of appeal
In the appellant's view, the legal appraisal of the evidence on which the Court of First Instance based its finding that the
appellant had engaged in agreements and concerted practices to fix prices and exchange information in breach of Article 65(1)
of the ECSC Treaty is vitiated by the fact that it did not take into account its own subsequent findings regarding the purpose,
context and subject-matter of the discussions in which the undertakings concerned had taken part in connection with the monitoring
of the sector introduced after the period of manifest crisis had come to an end.
In paragraph 656 of the judgment under appeal, the Court of First Instance stated that, when preparing meetings with the Commission,
the undertakings had to meet beforehand and exchange their views on the economic situation of the market and future trends,
particularly in relation to prices. Such meetings were, moreover, necessary to the success of the system of monitoring the
sector. Furthermore, it appears from the testimony given by  Mr Kutscher, a former DG III official heard by the Court of First
Instance as a witness, that, in a favourable economic situation, parallel increases in prices may arise without any agreement
being necessary. Therefore, in the appellant's view, the judgment under appeal is based on contradictory and inadequate reasoning.
The Commission contends that the Court of First Instance meticulously examined each piece of evidence relating to the various
infringements and observes that the appellant does not allege distortion of the sense of that evidence.
According to the Commission, it is wrong to claim that the fact that meetings were held with it precludes a finding that the
appellant was involved in anti-competitive practices. First, that argument can relate only to the infringements allegedly
committed within the Eurofer Committee, called the
Poutrelles Committee (
the Poutrelles Committee), and not to price-fixing and market-sharing agreements. Second, the Commission refers to paragraphs 539 and 575 to 579 of
the judgment under appeal, from which it is clear that the activities of which the undertakings concerned were accused were
entirely separate from the information meetings with the Commission.
Findings of the Court
It is appropriate to observe that the appellant invokes no argument calling into question the findings made by the Court of
First Instance in paragraphs 539 to 576 of the judgment under appeal. In those paragraphs, the Court of First Instance demonstrated
that the undertakings concerned had concealed from the Commission the existence and content of the discussions adversely affecting
competition which they had held and of the agreements which they had concluded. In paragraph 577 of the judgment under appeal,
it stated that, in any event, the provisions of Article 65(4) of the ECSC Treaty have an objective content and are binding
on both undertakings and the Commission, which cannot exempt those undertakings.
More specifically, the appellant does not challenge paragraphs 547 to 557 of the judgment under appeal, in which the Court
of First Instance took the view that it had not been established that the DG III officials were aware of the price-fixing
agreements.
Paragraph 656 of the judgment under appeal, on which the appellant bases its argument that the reasoning given in that judgment
is contradictory, is contained in the part of that judgment in which the Court of First Instance examines the economic impact
of the infringements with a view to determining whether the fine was fixed at a disproportionate amount.
Thus, in that part of the judgment under appeal, the Court of First Instance examined one of the criteria normally applied
in assessing the seriousness of an infringement, while stating, in paragraph 650, that an infringement of Article 65(1) of
the ECSC Treaty may be found and a fine imposed under Article 65(5) even in the absence of anti-competitive effects. As it
stated in paragraph 651 of the judgment under appeal, the effect which an anti-competitive practice has is therefore not a
conclusive criterion for assessing the proper amount of a fine. Factors relating to the intentional aspect may be more significant
than those relating to the effects, particularly where they relate to infringements which are intrinsically serious, such
as price-fixing and market-sharing, factors which are present in this case.
The finding set out in paragraph 656 of the judgment under appeal cannot be read in isolation but must be placed in the context
of the argument developed by the Court of First Instance. That line of argument led to the conclusion, in paragraph 658, that,
in light of the Commission's conduct, it was unnecessary to determine the effects of the infringements committed in this case
by simply comparing the situation resulting from the anti-competitive agreements with that which would have existed had there
been no contact whatever between the undertakings. The Court of First Instance took the view that it was more relevant to
compare the situation resulting from those agreements with the situation envisaged and accepted by DG III, in which the undertakings
were supposed to meet and engage in general discussions, particularly in regard to their forecasts on future prices.
The Court of First Instance therefore did not contradict itself by taking into consideration the Commission's conduct in order
to assess the economic effects of the infringements while stating that that conduct had no bearing on the fact that the undertakings
concerned had been fully aware that the practices complained of were anti-competitive.
It follows that the first limb of the third ground of appeal is unfounded.
The second limb of the third ground of appeal
In the appellant's view, the Court of First Instance's interpretation of Article 65(1) of the ECSC Treaty is based on contradictory
reasoning and a misunderstanding of the context in which that article is to be applied.
The appellant complains that the Court of First Instance's reasoning is tautological. Having found, solely on the basis of
the evidence, that the infringements of Article 65(1) of the ECSC Treaty had been established, the Court of First Instance
concluded that the appellant's arguments concerning the interpretation of that article were irrelevant. Thus, it denied the
relevance of Articles 46 to 48 and 60 of the ECSC Treaty to that interpretation. In the appellant's view, the Court of First
Instance ought to have considered the question of the interpretation of Article 65(1) of that Treaty before examining whether
the infringements had been established.
The appellant goes on to argue that the Court of First Instance misinterpreted the concept of
normal competition in that it failed to take account of either the effect which pursuit of the different objectives of the Treaty may have on
the content of that concept or the impact of Articles 46 to 48 of the ECSC Treaty.
The grounds of the judgment under appeal are, the appellant submits, contradictory in that regard as the Court of First Instance,
in paragraph 658 of that judgment, took account of the ambiguity introduced by the Commission into the scope of the concept
of
normal competition when fixing the level of the fines but failed to do so when interpreting Article 65 of the ECSC Treaty.
As a result of its misinterpretation of the concept of
normal competition, the Court of First Instance wrongly found, in paragraph 256 of the judgment under appeal, that the appellant had engaged
in concerted practices relating to prices on the United Kingdom market even though the appellant's conduct was a result of
the monitoring system set up by the Commission.
The Court of First Instance was, the appellant argues, also wrong to hold that it had committed a separate infringement of
Article 65(1) of the ECSC Treaty by participating in an information exchange system within the Poutrelles Committee, even
though that Court had failed to demonstrate that this constituted a separate breach of Article 65(1) by drawing a coherent
distinction between the allegedly anti-competitive effects of the price-fixing and market-sharing agreements, on the one hand,
and the information exchange system, on the other.
Furthermore, the Court of First Instance failed, in its assessment, to take account of the negotiations which it had been
necessary to hold in the context of the monitoring system set up by the Commission.
Moreover, the Court of First Instance's assessment of the structure of the market in question is based on inadequate reasoning,
which is set out entirely in paragraph 390 of the judgment under appeal. In that paragraph, the Court of First Instance stated
that the market was oligopolistic, without carrying out an economic evaluation of its structure. That structure is very different
from that which is considered to be an oligopoly in the practice of the Commission under Council Regulation (EEC) No 4064/89
of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1), in Commission Decision 92/157/EEC
of 17 February 1992 relating to a proceeding pursuant to Article 85 of the EEC Treaty (IV/31.370 and 31.446 ─ UK Agricultural
Tractor Registration Exchange) (OJ 1992 L 68, p. 19) or in Germany's
Gesetz gegen Wettbewerbsbeschränkungen
(Law prohibiting restraints of competition).
The Commission refers to paragraph 156 of the judgment under appeal, in which the Court of First Instance set out the approach
it would be taking in its examination of the action, which consisted of ascertaining the correctness of the facts before reviewing
whether the legal characterisation of those facts in the contested decision was sound in law. It submits that such an approach
entails a stringent review and did not lead the Court of First Instance to draw conclusions in the first stage of that examination
which made the outcome of the second stage a foregone conclusion.
The Commission argues that the appellant is distorting the clear sense of paragraphs 658 to 660 of the judgment under appeal,
in which the Court of First Instance concluded not that the concept of
normal competition should be adjusted, but merely that the Commission had exaggerated the economic impact of the price-fixing agreements established
in the contested decision.
With regard to Articles 46 to 48 of the ECSC Treaty, the Commission observes that the Court of First Instance found, in paragraph
587 of the judgment under appeal, that the issue of discussions between the undertakings with a view to providing the Commission
with information was irrelevant. The Court of First Instance pointed out that that had not been the purpose of the agreements
and concerted practices in question, that those discussions had not formed part of the Commission's complaint and that such
discussions on market trends did not necessarily entail commission of the infringements confirmed in the contested decision.
The Court of First Instance was therefore right to hold that the activities of the undertakings concerned should be treated
as infringements of Article 65(1) of the ECSC Treaty and that they were not covered by the concept of
normal competition.
As regards the information exchange system, the Commission states that the Court of First Instance was careful to demonstrate,
in paragraphs 391 to 397 of the judgment under appeal, that this system had restricted competition in the form of independent
decision-making by the undertakings participating in the exchange and, in paragraph 396, that it had tended to partition markets
along the lines of traditional flows of trade. It is therefore incorrect to claim that the Court of First Instance failed
to show that this constituted a separate infringement.
The Commission takes the view that the argument disputing the oligopolistic structure of the market in question is inadmissible
as it was raised for the first time in the appeal. Furthermore, it observes that the Court of First Instance referred to the
judgment in Case 13/60
Geitling Ruhrkohlen-Verkaufsgesellschaft and Others
v
High Authority
[1962] ECR 83, in which the Court held that the oligopolistic structure of a market rendered it all the more important that
residual competition on that market be protected.
Findings of the Court
The second limb of the third ground of appeal is composed of a variety of criticisms of the judgment under appeal.
First of all, some of the arguments raised in connection with this limb of the third ground of appeal have already received
a response in connection with the examination of the first limb of that ground. These concern the criticisms of the judgment
under appeal by which the appellant complains that the Court of First Instance failed to take account of the conduct of DG
III when finding that there had been infringements of Article 65(1) of the ECSC Treaty and that that Court contradicted itself
in finding that there had been an infringement of Article 65 while at the same time taking account, for the purpose of fixing
the fine, of the ambiguity created by the Commission.
It is appropriate to examine in turn the arguments alleging, first, erroneous grounds for the judgment under appeal, second,
misinterpretation of the concept of
normal competition and, third, an error in law in the finding that there had been a separate infringement.
With respect, first, to the allegation that the Court of First Instance erred in the grounds of the judgment under appeal
in holding that there had been infringements before even considering the question of how Article 65(1) of the ECSC Treaty
was to be interpreted, suffice it to state that, in paragraphs 155 and 156 of the judgment under appeal, the Court of First
Instance outlined how it intended to respond to the numerous pleas and arguments raised by the appellant with regard to infringement
of Article 65(1). In paragraph 156, it stated that it would examine the correctness of the facts allegedly constituting the
infringements before determining whether the legal classification of those facts was sound in law.
In paragraph 239 of the judgment under appeal, the Court of First Instance concluded that the findings of fact in the contested
decision were well founded, that it had been established that there had actually been agreements and concerted practices and
that the appellant's participation in those agreements and concerted practices had been proven.
It follows that, when the Court of First Instance ruled on those findings of fact, it did not decide that there had been infringements
before even examining the question of how to interpret Article 65(1) of the ECSC Treaty. It merely considered the factual
evidence before reviewing, in a second step, the classification of the conduct found to have occurred.
Second, with respect to the alleged misinterpretation of the concept of
normal competition, the Court of First Instance examined, in paragraphs 289 to 296 of the judgment under appeal, the context of Article 65(1)
of the ECSC Treaty. In paragraphs 297 to 309, it also examined whether Article 60 of that Treaty was relevant to the assessment,
in the light of Article 65(1), of the conduct alleged against the appellant. In paragraph 310 of the judgment under appeal,
it examined Articles 46 to 48 of the ECSC Treaty and concluded, in paragraph 311, that none of the articles referred to in
this paragraph allowed the undertakings to breach the prohibition in Article 65(1) by concluding agreements or engaging in
concerted practices relating to price-fixing such as those at issue in the present case.
The Court finds that all of the reasons set out by the Court of First Instance in that regard were correct in law. The argument
alleging misinterpretation of the concept of
normal competition is therefore unfounded.
Third, according to the case-law relating to the tractor market (Case T-34/92
Fiatagri and New Holland Ford
v
Commission
[1994] ECR II-905, Case T-35/92
John Deere
v
Commission
[1994] ECR II-957, Case C-7/95 P
John Deere
v
Commission
[1998] ECR I-3111, and Case C-8/95 P
New Holland Ford
v
Commission
[1998] ECR I-3175), in which the Court of First Instance and the Court of Justice first examined an agreement on the exchange
of information in the context of the EC Treaty and the general findings of which can be applied to the ECSC Treaty, such an
agreement is incompatible with the rules on competition if it reduces or removes the degree of uncertainty as to the operation
of the market in question with the result that competition between undertakings is restricted (see, in particular, Case C-7/95
P
John Deere
, cited above, paragraph 90).
The criteria of coordination and cooperation necessary for determining the existence of a concerted practice, far from requiring
an actual
plan to have been worked out, are to be understood in the light of the concept inherent in the provisions of the EC and ECSC Treaties
on competition, according to which each trader must determine independently the policy which he intends to adopt on the common
market and the conditions which he intends to offer to his customers (see Case C-7/95 P
John Deere
, paragraph 86, and the case-law cited therein).
While it is true that this requirement of independence does not deprive traders of the right to adapt themselves intelligently
to the existing or anticipated conduct of their competitors, it does, however, strictly preclude any direct or indirect contact
between such traders, the object or effect of which is to create conditions of competition which do not correspond to the
normal conditions of the market in question, regard being had to the nature of the products or services offered, the size
and number of the undertakings and the volume of the said market (Case C-7/95 P
John Deere
, paragraph 87, and the case-law cited therein).
In paragraphs 88 to 90 of that
John Deere
judgment, the Court confirmed the general premiss on which the Court of First Instance based its reasoning, namely that:
─
in principle, where there is a truly competitive market, transparency between traders is likely to lead to intensification
of competition between suppliers, since the fact that in such a situation a trader takes into account information on the operation
of the market, made available to him under the information exchange system, in order to adjust his conduct on the market,
is not likely, having regard to the atomised nature of the supply, to reduce or remove for the other traders all uncertainty
about the foreseeable nature of his competitors' conduct;
─
however, on a highly concentrated oligopolistic market, the exchange of market information is liable to enable undertakings
to be aware of the market positions and strategies of their competitors and thus to impair appreciably the competition which
exists between traders.
In paragraph 89 of its
John Deere
judgment, the Court also noted that the Court of First Instance had taken account of the detailed and confidential nature
of the information exchanged, of the frequency of its exchange and of the fact that it was intended only for the undertakings
participating in the exchange, to the exclusion of their competitors and of consumers.
The finding that, in the present case, the beams market was oligopolistic in structure is an assessment of fact which, for
the reasons set out in paragraph 65 of this judgment, cannot be subject to review by the Court in appeal proceedings.
In light of the case-law referred to in paragraphs 105 to 109 of this judgment and given the various findings made by the
Court of First Instance in paragraphs 383 to 390 of the judgment under appeal, from which it is clear that the information
exchange systems in question reduced the degree of uncertainty as to the operation of the market, the Court of First Instance
was right to conclude, in paragraph 391 of that judgment, that those systems clearly affected the participants' decision-making
independence. Similarly, having regard to the findings made in paragraphs 392 to 396 of the judgment under appeal, the Court
of First Instance was entitled to hold, in paragraph 397 of that judgment, that the decision-making independence of the undertakings
participating in those systems had been appreciably reduced.
The Court of First Instance was therefore right to conclude that the system for exchanging information constituted a separate
infringement.
It follows from all of the foregoing that the second limb of the third ground of appeal is unfounded.
Consequently, the third ground of appeal is unfounded.
The fourth ground of appeal
The fourth ground of appeal alleges that the Court of First Instance erred in law when examining and rejecting, in paragraphs
77 to 103 of the judgment under appeal, the arguments alleging that the Commission had infringed the appellant's rights of
defence during the administrative procedure.
According to the appellant, the case-law concerning rights of access to the file, as established in Case T-30/91
Solvay
v
Commission
[1995] ECR II-1775, Case T-31/91
Solvay
v
Commission
[1995] ECR II-1821, Case T-32/91
Solvay
v
Commission
[1995] ECR II-1825, Case T-36/91
ICI
v
Commission
[1995] ECR II-1847 and Case T-37/91
ICI
v
Commission
[1995] ECR II-1901, requires that the following be taken into consideration:
─
the nature of the allegations made by the Commission against the undertaking concerned;
─
the principle that it is not for the Commission to determine which documents are or might be relevant to the undertaking's
defence against those allegations;
─
the principle of equality of arms, which requires that the undertaking must have access to the same information as the Commission.
The appellant submits that, in the present case, several documents and testimonies concerning the role of DG III were made
available only during the judicial proceedings. Those documents were, the appellant argues, relevant to its defence during
the administrative procedure.
The appellant also argues that the Court of First Instance's finding that the Commission's investigation into its own involvement
satisfied the applicable procedural requirements is vitiated by an error of law. In particular, the Court of First Instance
contradicted itself in holding that the documents relating to the Commission's internal investigation were irrelevant to the
appellant's defence during the administrative procedure even though it had ordered production of those documents during the
judicial proceedings and relied on them at several points in the judgment under appeal.
The appellant goes on to submit that, contrary to what the Court of First Instance held in paragraph 101 of the judgment under
appeal, the procedural rights of undertakings are not sufficiently guaranteed by the possibility open to them of bringing
an action before that Court.
In that connection, the appellant claims that there is a contradiction between paragraph 320 of the judgment under appeal,
in which the Court of First Instance rejected the appellant's argument that the Commission was aware of and tolerated the
harmonisation of the structure and the prices of extras, and paragraph 558, in which, relying on a document drawn up by the
Commission, it stated that the Commission had indeed been aware of the practice of harmonising
extras. According to the appellant, the Court of First Instance could have assessed the issue only by ordering measures of inquiry
and by examining all the relevant documents and not just some of them.
The Commission contends that the case-law relied on by the appellant relates to documents which are in the Commission's possession
whereas the documents referred to by the appellant in its appeal are internal documents of the Commission, that is to say,
documents which the Commission is under no obligation to forward to undertakings which are the subject of an investigation.
The appellant has failed to establish how the arguments which it adduced during the administrative procedure might have been
reinforced had it had access to the documents in question and, more particularly, has failed to indicate which documents could
have helped it in putting its views across.
As regards the documents relating to its internal investigation, the Commission submits that there is no inconsistency between
the Court of First Instance's finding that the documents in question did not have to be disclosed during the administrative
procedure and the fact that it ordered their production during the judicial proceedings. Those documents were not evidence
on which the Commission intended to rely against any of the undertakings concerned. Moreover, the Court of First Instance
held that the Commission had taken proper account of those undertakings' observations during the investigation.
As regards the harmonisation of extras, the Commission takes the view that the appellant is attempting to have the Court review
facts already assessed by the Court of First Instance. Furthermore, in the light of the latter's careful analysis of the evidence
and consideration of the legal arguments presented, the Commission claims that the fact that the Court of First Instance did
not order further measures of enquiry in that regard cannot be treated as constituting an infringement of the rights of the
defence.
Findings of the Court
Access to the file in competition cases is intended, in particular, to enable the addressees of statements of objections to
acquaint themselves with the evidence in the Commission's file so that, on the basis of that evidence, they can express their
views effectively on the conclusions reached by the Commission in its statement of objections (Case C-51/92 P
Hercules Chemicals
v
Commission
[1999] ECR I-4235, paragraph 75 and the case-law cited therein, and
Limburgse Vinyl Maatschappij and Others
, paragraph 315).
The right of access to the Commission's file is therefore designed to ensure effective exercise of the rights of the defence
(see
Hercules Chemicals
, cited above, paragraph 76). Those rights are not only fundamental principles of Community law but are also enshrined in
Article 6 of the ECHR (
Limburgse Vinyl Maatschappij and Others
, paragraph 316).
Failure to respect the right of access to the Commission's file during the procedure prior to adoption of a decision can,
in principle, cause the decision to be annulled if the rights of defence of the undertaking concerned have been infringed
(
Hercules Chemicals
, paragraph 77, and
Limburgse Vinyl Maatschappij and Others
, paragraph 317).
In such a case, the infringement committed is not remedied by the mere fact that access to the file was made possible during
the judicial proceedings relating to an action by which annulment of the contested decision is sought. Where access has been
granted at that stage, the undertaking concerned does not have to show that, if it had had access to the non-disclosed documents,
the Commission decision would have been different in content, but only that those documents could have been useful for its
defence (see, to that effect,
Hercules Chemicals
, paragraphs 78, 80 and 81, and
Limburgse Vinyl Maatschappij and Others
, paragraph 318).
In the present case, the documents referred to by the appellant in connection with its fourth ground of appeal are not part
of the file compiled by the Commission for the purpose of investigating whether competition rules had been breached but rather
internal documents of the Commission, which are by their very nature confidential.
Despite the confidential nature of those documents, the Court of First Instance rightly examined whether the refusal to release
them was justified and whether it prejudiced the appellant's rights of defence. It thus properly examined whether the documents
in question could have been useful to the appellant's defence.
In paragraph 100 of the judgment under appeal, the Court of First Instance held that the internal documents of the Commission
clearly contained no exonerating evidence. It does not appear from any of the documents referred to by the appellant in its
appeal that the Court of First Instance erred in law or distorted the facts or evidence in concluding that there was no exonerating
evidence in those documents. Those documents describe general trends on the steel market but in no way show that the DG III
officials were aware of or even encouraged the unlawful practices of which the appellant was accused.
Contrary to the appellant's contention, it is not possible to draw from the adoption by the Court of First Instance of a measure
of inquiry any conclusion whatsoever as to whether the documents in question might have been useful to the appellant's defence
during the administrative procedure. Moreover, the various citations from those documents in the judgment under appeal in
no way demonstrate that they could have been useful for its defence.
In any event, the Court of First Instance also found, in paragraph 97 of the judgment under appeal, that the undertakings
concerned had been in a position to comment on the allegedly exonerating documents in their possession in their reply to the
statement of objections. That finding has not been challenged by the appellant.
Given that, as the Advocate General rightly pointed out in paragraphs 43 to 45 of her Opinion, the appellant could have obtained
the information in the documents in question by consulting other sources, including its own documentation, it cannot legitimately
claim that access to the Commission's documents was necessary or even useful to its defence during the administrative procedure.
It follows that the appellant's argument that its rights of defence were infringed as a result of its being denied access
to the Commission's file during the administrative procedure is unfounded.
With respect to the appellant's argument concerning the agreements on the harmonisation of the structure and the prices of
extras, suffice it to state that this argument relates to the assessment of evidence by the Court of First Instance and that,
as was pointed out in paragraph 65 of this judgment, such an assessment is not, in principle, subject to review by the Court.
As regards the need for the Court of First Instance to order production of other documents, the Court refers to the principle
set out in paragraph 67 of this judgment. Since the documents which the Court of First Instance considered to be of probative
value were available to it, it was under no obligation whatsoever to adopt further measures for taking evidence if it formed
the view that such measures were unnecessary to establish the truth.
Consequently, the fourth ground of appeal is in part inadmissible and in part unfounded.
The fifth ground of appeal
The fifth ground of appeal, which can be divided into two limbs, alleges misapplication of Article 15 of the ECSC Treaty as
regards the statement of reasons for the level of the fines in the contested decision.
The first limb of the fifth ground of appeal
By the first limb of the fifth ground of appeal, the appellant takes issue with paragraphs 629 and 630 of the judgment under
appeal. It submits that the Court of First Instance erred in law in holding that the absence in the contested decision of
specific information relating to the calculation of the fine did not constitute a breach of the duty to state reasons under
Article 15 of the ECSC Treaty which could justify cancellation, in whole or in part, of the fine imposed.
The Commission points out that the appellant is not challenging paragraphs 624 and 625 of the judgment under appeal, which,
in themselves, provide the basis for the Court of First Instance's finding, the other paragraphs of that judgment concerning
the statement of reasons for the fine having to be considered supererogatory. It follows that, even if the Court were to rule
that those other paragraphs were erroneous, it could not overturn that judgment so long as it did not consider those paragraphs
to be essential stages in the Court of First Instance's reasoning.
The Commission observes that the Court of First Instance held that it was desirable but not legally necessary that information
on the calculation of the fine be contained in the decision imposing that fine. It also states that, following the contested
decision, it adopted guidelines for the calculation of fines.
In its reply, the appellant submits that, as is clear from paragraphs 690 and 691 of the judgment under appeal, it was the
additional information provided by the Commission which made it possible to identify the errors committed by it in calculating
the fine imposed on the appellant. It maintains that the Court of First Instance erred in law in holding that there had been
no breach of the duty to state reasons for the level of the fine in the contested decision.
Findings of the Court
The first paragraph of Article 15 of the ECSC Treaty provides that
[d]ecisions, recommendations and opinions of the Commission shall state the reasons on which they are based and shall refer
to any opinions which were required to be obtained.
It is settled case-law that the purpose of the obligation to state the reasons on which an individual decision is based is
to enable the Court to review the legality of the decision and to provide the person concerned with sufficient information
to make it possible to ascertain whether the decision is well founded or whether it is vitiated by a defect which may permit
its legality to be contested (Case 32/86
Sisma
v
Commission
[1987] ECR 1645, paragraph 8).
In the present case, the Court of First Instance was correct in law to take the view, in paragraph 624 of the judgment under
appeal, that the contested decision contained, in recitals 300 to 312, 314 and 315 of its grounds, an adequate and relevant
statement of the factors taken into account in assessing the general gravity of the various infringements alleged.
The grounds of the contested decision refer, in recital 300, to the gravity of the infringements and state the factors taken
into consideration in fixing the fine. Account was thus taken, in recital 301, of the economic situation of the steel industry,
in recitals 302 to 304, of the economic impact of the infringements, in recitals 305 to 307, of the fact that at least some
of the undertakings were aware that their conduct was or could have been contrary to Article 65 of the ECSC Treaty, in recitals
308 to 312, of misunderstandings which might have arisen during the period of the crisis regime and, in recital 316, of the
duration of the infringements. The contested decision also sets out in detail the participation of each undertaking in each
infringement.
It must be concluded that the information contained in the contested decision enabled the undertaking concerned to ascertain
the reasons for the adopted measure in order to assert its rights and allows the Community judicature to review the legality
of that decision. It follows that the Court of First Instance did not infringe Article 15 of the ECSC Treaty in finding that
adequate reasons had been given in the contested decision with regard to the calculation of the level of the fines.
With regard to statements of figures relating to the calculation of fines, it is appropriate to point out that, however useful
and desirable such figures may be, they are not essential to compliance with the duty to state reasons for a decision imposing
fines; in any event, the Commission cannot, by mechanical recourse to arithmetical formulas alone, divest itself of its own
power of assessment (Case C-291/98 P
Sarrió
v
Commission
[2000] ECR I-9991, paragraphs 75 to 77, and
Limburgse Vinyl Maatschappij and Others
, paragraph 464).
The fact that it was possible to detect a number errors in the calculation only once those figures had been provided is insufficient
for a finding that the statement of reasons in the contested decision is inadequate since, when reviewing such a decision,
the Community Court may order that all the evidence which it requires be submitted to it. It is common ground that, in the
present case, the Court of First Instance requested and received from the Commission all the figures which it required to
allow it to carry out a detailed review of the method by which the fine was calculated.
It follows that the first limb of the fifth ground of appeal is unfounded.
The second limb of the fifth ground of appeal
By the second limb of the fifth ground of appeal, the appellant submits that there is a contradiction between paragraph 676
of the judgment under appeal, in which the Court of First Instance stated that
there can be no question ... of any possible misunderstanding as to the scope of Article 65(1) of the Treaty, and paragraphs 658 and 659, in which it acknowledged that DG III introduced a degree of ambiguity into the meaning of the
concept of
normal competition as used in the ECSC Treaty. The appellant argues that the Court of First Instance ought to have made a further reduction
in the fine in the light of its finding that the Commission had introduced a degree of ambiguity into the interpretation of
Article 65(1). The refusal by the Court of First Instance to concede that the appellant could rely on extenuating circumstances
was based on contradictory reasoning which justifies annulment of the judgment under appeal.
The Commission takes the view that there is no contradiction in the judgment under appeal as regards the interpretation of
normal competition in view of the Court of First Instance's finding that the undertakings concerned were careful to conceal the true nature
and extent of their discussions from the Commission and in view of the fact that those undertakings could have approached
DG IV (Directorate-General for
Competition) of the Commission had they had the slightest doubts as to the legality of those discussions. A further reduction in the
fine could not therefore have been justified on that account.
Findings of the Court
This limb of the fifth ground concerns questions which have already been answered in connection with the consideration of
the first limb of the third ground in paragraphs 77 to 83 of this judgment.
It follows that the fifth ground of appeal must be rejected as unfounded.
The sixth ground of appeal
The appellant submits that the Court of First Instance failed properly to exercise the jurisdiction to review and declare
void the contested decision which is conferred on it by Article 33 of the ECSC Treaty. It failed to annul Article 1 of that
decision, according to which the appellant had infringed Article 65(1) of the ECSC Treaty during the period prior to 1 July
1988, even though it had found, in paragraph 524 of the judgment under appeal, that
the Commission has failed to establish that the applicant is guilty of any infringement connected with the activities of the
Poutrelles Committee prior to 1 July 1988.
The Commission points out that the only infringement prior to 1 July 1988 of which the appellant was actually accused in the
contested decision was participation in the agreement to increase prices in Germany and France which is at issue in recital
224 of the grounds of the contested decision. However, the Court of First Instance held, in paragraph 170 of the judgment
under appeal, that the appellant's participation in that agreement had not been proven to the requisite legal standard.
The Commission contends that, in any event, no fine was imposed on the appellant in respect of infringements prior to 1 July
1988.
In its reply, the appellant submits that the reasons given by the Commission cannot justify a refusal to annul Article 1 of
the contested decision in so far as it concerns the agreement to increase prices in Germany and France.
Findings of the Court
As the Advocate General rightly pointed out in paragraph 114 of her Opinion, the infringement period referred to in Article
1 of the contested decision does not include the period prior to 1 July 1988. It is undisputed that no fine was imposed on
the appellant in respect of that period.
It follows that the Court of First Instance could not have annulled Article 1 of the contested decision with respect to pricing
agreements prior to 1 July 1988.
Suffice it to state that recital 224 in the grounds of the contested decision had no effect on the operative part of that
decision and that, therefore, the Court of First Instance was not required to annul it specifically. The appellant's interests
were adequately safeguarded by the Court of First Instance's finding, in paragraph 170 of the judgment under appeal, that
the appellant's participation in the agreement to fix prices in Germany and France had not been proven to the requisite legal
standard.
It follows that the Court of First Instance did not err in law in failing to annul Article 1 of the contested decision in
respect of the period prior to 1 July 1988.
The sixth ground of appeal is therefore unfounded.
It follows from all of the above findings that the appeal must be dismissed.
Costs
Under Article 69(2) of the Rules of Procedure, which is applicable to the appeal procedure by virtue of Article 118 of those
Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings.
Since the Commission has applied for costs to be awarded against the appellant and since that party has been unsuccessful
in all of its grounds of appeal, it must be ordered to pay the costs.
On those grounds,
THE COURT (Fifth Chamber)
hereby:
1.
Dismisses the appeal;
2.
Orders Corus UK Ltd to pay the costs.
Wathelet
Edward
La Pergola
Jann
von Bahr
Delivered in open court in Luxembourg on 2 October 2003.
R. Grass
M. Wathelet
Registrar
President of the Fifth Chamber
–
Language of the case: English.