CELEX: 62000TJ0374
Control of concentrations
Concentration partly covered by the ECSC Treaty and partly by the EC Treaty
Authorisation decision on the basis of Article 66(2) CS
Decision on compatibility with the common market on the basis of Article 6(1)(b) of Regulation (EEC) No 4064/89
Conditions of admissibility according to the ECSC Treaty and the EC Treaty
Relationship between the systems for the control of concentrations laid down by the ECSC Treaty and the EC Treaty
Obligation to state reasons
Error of assessment

Legal context
A ─
Legal context of the ECSC decision
Article 33 CS provides as follows: ...Undertakings or associations referred to in Article 48 may, under the same conditions, institute proceedings against decisions
or recommendations concerning them which are individual in character or against general decisions or recommendations which
they consider to involve a misuse of powers affecting them.The proceedings provided for in the first two paragraphs of this Article shall be instituted within one month of the notification
or publication, as the case may be, of the decision or recommendation....
Pursuant to Article 66 CS: 1. Any transaction shall require the prior authorisation of the Commission, subject to the provisions of paragraph 3 of this
Article, if it has in itself the direct or indirect effect of bringing about within the territories referred to in the first
paragraph of Article 79, as a result of action by any person or undertaking or group of persons or undertakings, a concentration
between undertakings at least one of which is covered by Article 80, whether the transaction concerns a single product or
a number of different products, and whether it is effected by merger, acquisition of shares or parts of the undertaking or
assets, loan, contract or any other means of control. For the purpose of applying these provisions, the Commission shall,
by regulations made after consulting the Council, define what constitutes control of an undertaking.2. The Commission shall grant the authorisation referred to in the preceding paragraph if it finds that the proposed transaction
will not give to the persons or undertakings concerned the power, in respect of the product or products within its jurisdiction:─ to determine prices, to control or restrict production or distribution or to hinder effective competition in a substantial
part of the market for those products; or─ to evade the rules of competition instituted under this Treaty, in particular by establishing an artificially privileged
position involving a substantial advantage in access to supplies or markets.....
Finally, Article 80 CS provides as follows: For the purposes of this Treaty,
undertaking means any undertaking engaged in production in the coal or the steel industry within the territories referred to in the first
paragraph of Article 79, and also, for the purposes of Articles 65 and 66 and of information required for their application
and proceedings in connection with them, any undertaking or agency regularly engaged in distribution other than sale to domestic
consumers or small craft industries.
B ─
Legal context of the EC decision
Article 2 of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings
(OJ 1989 L 395, p. 1, as rectified in OJ 1990 L 257, p. 13, and as amended by Council Regulation (EC) No 1310/97 of 30 June
1997 (OJ 1997 L 180, p. 1,
Regulation No 4064/89) provides as follows:
1.
Concentrations within the scope of this Regulation shall be appraised in accordance with the following provisions with a view
to establishing whether or not they are compatible with the common market.
In making this appraisal, the Commission shall take into account:
(a)
the need to maintain and develop effective competition within the common market in view of, among other things, the structure
of all the markets concerned and the actual or potential competition from undertakings located either within or outwith the
Community;
(b)
the market position of the undertakings concerned and their economic and financial power, the alternatives available to suppliers
and users, their access to supplies or markets, any legal or other barriers to entry, supply and demand trends for the relevant
goods and services, the interests of the intermediate and ultimate consumers, and the development of technical and economic
progress provided that it is to consumers' advantage and does not form an obstacle to competition.
2. A concentration which does not create or strengthen a dominant position as a result of which effective competition would
be significantly impeded in the common market or in a substantial part of it shall be declared compatible with the common
market....
Article 6(1) of Regulation No 4064/89 provides as follows: The Commission shall examine the notification as soon as it is received....
(b)
Where it finds that the concentration notified, although falling within the scope of this Regulation, does not raise serious
doubts as to its compatibility with the common market, it shall decide not to oppose it and shall declare that it is compatible
with the common market.
....
Facts and procedure
This application for annulment has been lodged by Verband der freien RohrwerkeeV (
VFR), an association of undertakings, and two of its members, namely Eisen- und Metallwerke Ferndorf GmbH (
Ferndorf) and Rudolf Flender GmbH & Co KG (
Flender).
VFR is an association representing the interests of 10 medium-size undertakings in Germany which produce welded steel pipes
from hot-rolled wide strips or quarto plates and do not belong to one of the major European steel groups. The association
is, in turn, a member of the Wirtschaftsverband Eisen, Blech und Metall Verarbeitende Industrie eV, an association representing
the interests of various branches of the iron, metal sheet and metal manufactuing industry (
EBM).
Ferndorf mainly produces steel pipes with a diameter of over 406 mm (
large pipes) with spiral welding. Flender produces steel pipes with a diameter of less than 406 mm (
small pipes) with longitudinal welding. It should be observed that, unlike the other members of the VFR which produce steel pipes from
quarto plates, Ferndorf and Flender produce them from hot-rolled wide strips.
On 1 August 2000 Salzgitter AG, a major German undertaking which produces and processes steel products on an integrated basis
(
Salzgitter), notified the Commission of its intention to acquire control of Mannesmannröhren-Werke AG (
MRW), a company owned by Mannesmann AG (99.3%) and Thyssen AG (0.7%), which produces and markets steel pipes and raw materials
for the production of pipes (this operation is hereinafter referred to as the
concentration at issue). Europipe SA, which produces steel pipes with longitudinal welding and spiral welding, is controlled jointly by MRW and
Dillingerhütte (
DH), which forms part of the Usinor group. In addition, MRW has joint control, with the Vallourec group, of Vallourec & Mannesmann
Tubes SA, which also produces steel pipes. Finally, MRW has joint control, with Thyssen Krupp Stahl AG (
TKS), of Hüttenwerke Krupp Mannesemann GmbH (
HKM), which produces crude steel and semi-finished products.
In so far as the concentration at issue involved steel products which, by virtue of Article 81 CS in conjunction with Annex
I to the same Treaty, were subject to the appraisal of concentrations under Article 66 CS, and processed products such as
steel pipes, which fell within the scope of the EC Treaty, notification of the project was given pursuant to both Article
4(1) of Regulation No 4064/89 and Article 66 CS.
By notice published in the Official Journal on 12 August 2000 the Commission requested interested parties to give their opinion
on the concentration at issue within 10 days.
Following this notice, EBM and Ferndorf informed the Commission of their reservations with regard to the notified concentration.
They stated that they feared that, following the concentration, Salzgitter would no longer be interested in supplying, on
competitive terms, quarto plates and hot-rolled wide strips to pipe producers not belonging to a large integrated steel group
(
independent pipe producers), particularly as they competed with Salzgitter and certain companies controlled by it in the downstream pipe market.
On 5 September 2000 the Commission adopted decision COMP/M.2045 ─ Salzgitter/Mannesmannröhren-Werke whereby the concentration
at issue was declared compatible with the common market pursuant to Articles 2(2) and 6(1)(b) of Regulation No 4064/89 (
the EC decision).
On 14 September 2000 the Commission adopted decision COMP/ECSC.1336 ─ Salzgitter/Mannesmannröhren-Werke whereby the concentration
at issue was authorised pursuant to Article 66(2) CS (
the ECSC decision, the ECSC decision and the EC decision being referred to together as
the contested decisions).
In the latter decision the Commission stated that there was no foundation for the objections to the proposed concentration
raised by various independent manufacturers of large pipes established in Germany, who feared that Salzgitter would discriminate
against them with regard to supplying quarto plates and hot-rolled wide strips. The Commission took the view that, if Salzgitter
were to discriminate in that way, it would always be possible to take the measures provided for by Articles 65 and 66(7) CS.
Nevertheless the Commission took note of the following declaration by Salzgittter: The Salzgitter group hereby declares that, in connection with the notification of a concentration pursuant to the regulation
on the appraisal of concentrations and Article 66(3) CS, in the event of authorisation of the concentration by the European
Commission, Salzgitter will continue to make offers to its customers, in particular producers of large welded pipes, which
conform with market conditions as long as the Salzgitter group produces such goods. It will not take any discriminatory measures
against its customers, particularly with regard to price, quality and conditions of delivery. The basis of comparison for
non-discrimination is constituted by the terms granted to Europipe so far as quarto plates are concerned and, so far as hot-rolled
wide strips are concerned, by the terms at present granted by Salzgitter AG to pipe producers (
the declaration of non-discrimination).
By letter of 25 September 2000, EBM asked the Commission for more detailed information on the decisions approving the concentration
at issue and regarding the possibility of submitting observations on those decisions.
Following this request, the Commission faxed copies of the contested decisions to EBM on 3 October 2000.
EBM responded by letter of 4 October 2000. It pointed out that its members included a number of small steel-pipe producers
who were also concerned by the concentration at issue, so that Salzgitter should also give an undertaking not to discriminate
against them.
By letter of 30 October 2000, the applicants informed the Commission of their criticisms of the contested decisions. In particular,
they set out the reasons why they considered that the decisions and also the declaration of non-discrimination reproduced
in them did not take sufficient account of the interests of independent pipe producers. They also asked the Commission to
send them paper copies of the contested decisions. They received the copies on 14 November 2000.
By letter of 23 November 2000, the applicants asked the Commission to give them access to the administrative file of the concentration
at issue. The Commission informed them by letter of 1 December 2000 that it was unable to accede to this request. It also
confirmed, by letter of 5 December 2000, that Salzgitter refused permission for a copy of the notification, even after deletion
of the business secrets which it contained, to be sent to them.
The applicants brought the present action by application lodged at the Registry on 12 December 2000.
Mannesmann and Salzgitter sought leave to intervene in support of the Commission by letters of 8 and 20 March 2001 respectively.
After receiving the parties' observations, the President of the Third Chamber gave leave, by order of 17 May 2001, for Salzgitter
and Mannesmann to intervene in support of the Commission (
the interveners). They lodged their statement in intervention on 2 July 2001.
The written procedure ended with the lodging of the rejoinder on 14 December 2001.
On the report of the Judge-Rapporteur, the Court (Third Chamber) decided to open the oral procedure and, in the framework
of the procedural organisation measures provided for in Article 64 of the Rules of Procedure, requested the parties to produce
certain documents and to reply to written questions.
The parties presented oral argument and their replies to oral questions from the Court at the hearing on 16 January 2003.
Forms of order sought by the parties
The applicants claim that the Court should:
─
order the Commission to produce the administrative file of the concentration at issue or, at least, the notification(s) of
the concentration;
order the Commission to produce the administrative file of the concentration at issue or, at least, the notification(s) of
the concentration;
─
annul the contested decisions;
annul the contested decisions;
─
order the Commission to pay the costs.
order the Commission to pay the costs.
The Commission, supported by the interveners, contends that the Court should:
─
dismiss the application for annulment as inadmissible;
dismiss the application for annulment as inadmissible;
─
in the alternative, dismiss the application for annulment as unfounded;
in the alternative, dismiss the application for annulment as unfounded;
─
order the applicants to pay the costs.
order the applicants to pay the costs.
Admissibility
A ─
Admissibility of the application for annulment of the ECSC decision
1.Arguments of the parties
The Commission, supported by the interveners, considers that the application is inadmissible with regard to seeking the annulment
of the ECSC decision in so far as the applicants do not have the standing required to bring proceedings. The Commission points
out that the applicants are not
undertakings or ... associations referred to in Article 48 [CS] which, under the second paragraph of Article 33 CS, are the only ones which may institute proceedings against decisions or
recommendations adopted on the basis of the ECSC Treaty.
In addition, the Commission claims that the action, which was brought on 11 December 2000, is out of time. It observes that,
according to the case-law, in a case such as the present, where the contested decision was not notified to the applicants
and was not published in the Official Journal either, the period of one month specified in the third paragraph of Article
33 CS begins to run from the moment when the applicant acquires knowledge of the content and of the reasons for the decision
(see the judgment in Case 236/86
Dillinger Hüttenwerke
v
Commission
[1988] ECR 3761, paragraph 14). However, according to the Commission, several factors indicated that the applicants were
aware of the entire ECSC decision and its statement of reasons on 30 October 2000 at the latest, and most probably before
that date.
The applicants contend that they have the capacity required to bring an action for the annulment of the ECSC decision. They
observe that the admissibility of an action brought by a third party against a decision adopted on the basis of the ECSC Treaty
is subject to the same conditions as the admissibility of an action for the annulment of a decision adopted on the basis of
the EC Treaty because, under Article 33 CS, third parties may institute proceedings against
decisions ... concerning them which are individual in character, which is the case here. The applicants also consider that the system established by the ECSC Treaty, which denies access
to the courts to all undertakings which do not fall within the scope of that Treaty, even if a decision adopted on the basis
of the Treaty is of direct and individual concern to them, has a shortcoming from the viewpoint of constitutional principles
and, in particular, the principle of equal treatment.
The applicants also reject the Commission's argument that the action is out of time in seeking the annulment of the ECSC decision.
They contend that they have not yet been notified of the decision, so that, under the third paragraph of Article 33 CS, the
one-month period specified by that provision has not yet begun to run.
2.Findings of the Court
The second paragraph of Article 33 CS provides that
undertakings or the associations referred to in Article 48 [CS] may, under the same conditions as those laid down in the first paragraph, institute proceedings against decisions or recommendations
concerning them which are individual in character or against general decisions or recommendations which they consider to involve
a misuse of powers affecting them. It has consistently been held that Article 33 provides an exclusive list of the persons
entitled to bring an action for annulment, so persons not referred to therein may not validly institute such proceedings (see
the judgment in Case 222/83
Municipality of Differdange and Others
v
Commission
[1984] ECR 2889, paragraph 8, and the orders in Case T-4/97
D'Orazio and Hublau
v
Commission
[1997] ECR II-1505, paragraph 15, and Case T-70/97
Région Wallonne
v
Commission
[1997] ECR II-1513, paragraph 22).
Furthermore, it is clear from Article 80 CS that the term
undertakings refers to undertakings
engaged in production in the coal or steel industry within [the Community] and also, for the purposes of Articles 65 and 66 CS and proceedings in connection with them, any undertaking or agency engaged
in distribution in the same field.
Regarding the
associations referred to in Article 48 [CS], this term covers associations which are made up of and represent undertakings within the meaning of Article 80 CS (see,
to that effect, the judgments in Joined Cases 7/54 and 9/54
Groupement des Industries Sidérurgiques Luxembourgeoises
v
High Authority
[1956] ECR 175, 189; Case 67/63
Sorema
v
High Authority
[1964] ECR 293, 316; Case C-180/88
Wirtschaftsvereinigung Eisen- und Stahlindustrie
v
Commission
[1990] ECR I-4413, paragraph 23, and Case T-239/94
EISA
v
Commission
[1997] ECR II-1839, paragraph 28).
In the present case, it must be observed that Ferndorf and Flender are not engaged in production or distribution in the coal
and steel industry because they produce steel pipes, which are not mentioned in Annex I to the ECSC Treaty and therefore do
not fall within its scope. As for VFR, it represents the interests of steel pipe producers.
Therefore, even assuming that the applicants were able to show that the ECSC decision is of concern to them, they nevertheless
manifestly do not have the standing required to bring an action for the annulment of the decision pursuant to the second paragraph
of Article 33 CS.
In that connection there is no foundation for the applicants' argument that the limitation of the right to institute proceedings
against decisions and recommendations adopted pursuant to the ECSC Treaty to undertakings and associations of undertakings
falling within the scope of the Treaty is contrary to the principle of effective judicial protection and the principle of
equal treatment. It is true that, according to settled case-law, the provisions of the ECSC Treaty concerning the rights of
individuals to bring an action must be interpreted widely in order to safeguard their legal protection (see the judgments
in Case 66/76
CFDT
v
Council
[1977] ECR 305, paragraph 8, and Joined Cases T-12/99 and T-63/99
UK Coal
v
Commission
[2001] ECR II-2153, paragraph 53). However, it must be observed that this broad interpretation cannot contradict the clear
terms of the ECSC Treaty. As the Community Courts have observed on many occasions, they have no authority to depart from the
provisions for the protection of legal rights set out in the Treaties (with specific reference to the remedies provided for
by the ECSC Treaty, see the judgment in Case 12/63
Schlieker
v
High Authority
[1963] ECR 85, 90).
It follows from the foregoing that the action is inadmissible with regard to annulment of the ECSC decision, and it is unnecessary
to consider whether the application is out of time by reference to the one-month time-limit laid down by the third paragraph
of Article 33 CS.
B ─
Admissibility of the application for annulment of the EC decision
1.Arguments of the parties
The Commission, supported in this respect by the interveners, questions whether the application is admissible. It considers
that, contrary to the requirements of the fourth paragraph of Article 230 EC, the EC decision, which is not addressed to the
applicants, is not of individual concern to them.
The Commission points out, first, that VFR and Flender meet none of the three criteria applied by the Court in the judgment
in Case T-2/93
Air France
v
Commission
[1994] ECR II-323 in reaching its conclusion that the applicant in that case was individually concerned, namely, first, the
applicant had, at the stage of the administrative procedure, expressed reservations concerning the notified concentration;
second, the Commission had assessed the competition situation on the relevant markets, taking specific account of the applicant's
situation, and, third, the applicant had been compelled, under an agreement with the French Government and the Commission,
to divest its holding in the company TAT. With regard to Ferndorf, the Commission considers that the mere fact that it took
part in the administrative procedure was not sufficient to distinguish it individually because, in accordance with normal
practice, the Commission had contacted numerous undertakings in connection with the notified concentration and received some
20 replies.
Secondly, the Commission submits that the applicants are wrong in referring to the judgment in Case T-96/92
CCE de la Société Générale des Grandes Sources and Others
v
Commission
[1995] ECR II-1213, in which the Court took the view that the fact that Article 18(4) of Regulation No 4064/89 expressly
designates the recognised representatives of the employees of undertakings concerned by a concentration as being among the
third parties having a sufficient interest to be heard by the Commission, is sufficient to regard them as individually concerned
by the Commission's decision on the compatibility of that concentration with the common market. The Commission considers that
this principle cannot be applied to the present case in so far as, unlike the recognised representatives of employees, the
applicants do not belong to a clearly defined group and have no special rights under Regulation No 4064/89.
Thirdly, the Commission considers that, contrary to the applicants' submissions, the mere fact that the concentration has
adverse effects on the economic situation of Ferndorf and Flender as independent pipe producers is not sufficient to differentiate
them from all other persons in so far as, apart from the fact that this allegation is based partly on incorrect information,
there are many independent pipe producers in the Community in a similar situation.
Finally, the Commission considers that the applicants are wrong in referring to the judgment in case T-3/93
Air France
v
Commission
[1994] ECR II-121, in so far as, unlike the present case, the situation of the applicant, Air France, in that case was clearly
different from that of other operators in the market.
The applicants submit that they have standing to institute proceedings for the annulment of the EC decision.
2.Findings of the Court
The EC decision is not addressed to the applicants, but only to the parties to the concentration. Accordingly, under the fourth
paragraph of Article 230 EC, the applicants may bring an action for the annulment of the decision only if it is of direct
and individual concern to them.
In the present case it is manifest, and also common ground, that the EC decision is of direct concern to the applicants. Since
it enables the proposed concentration to be put into effect, the contested decision is such as to bring about an immediate
change in the situation in the markets concerned, depending solely on the wishes of the parties to the concentration (see
the judgment in the
Air France
case, cited in paragraph 44 above, paragraph 80).
Therefore it is necessary to establish whether the decision is also of individual concern to the applicants.
It has consistently been held that
persons other than those to whom a decision is addressed may only claim to be individually concerned if that decision affects
them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated
from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed (see the judgments in Case 25/62
Plaumann
v
Commission
[1963] ECR 95, 107, and
Air France
, cited in paragraph 41 above, paragraph 42).
In this connection the Court finds, first, that, as appears from paragraphs 37 and 43 of the EC decision, Ferndorf is a direct
competitor of the parties to the concentration in the market for large pipes with spiral welding. The concentration at issue
is therefore liable to affect Ferndorf as a direct competitor.
Secondly, the concentration at issue is also likely to affect Ferndorf as a buyer of raw materials necessary for the production
of pipes. It is common ground that, as a pipe producer which does not produce its own hot-rolled wide strips which it needs
for making large spirally welded pipes, Ferndorf obtained supplies from Salzgitter to meet its needs on several occasions.
Salzgitter's statement in intervention shows that in 1998 and 1999 it supplied Ferndorf with 2 100 tonnes and 10 200 tonnes
respectively of hot-rolled wide strips which, at least for 1999, represented a considerable portion of the latter's annual
consumption. In addition, in their pleadings and at the hearing, the applicants stated that the adverse effects of the concentration
on their supply situation would be all the greater in that, as a result of that transaction, Salzgitter indirectly acquired
joint control of Europipe, the biggest pipe producer in the Community, and that it would therefore be tempted to give preference
to Europipe, to the applicants' disadvantage, with regard to supplying hot-rolled wide strips. The applicants added that the
concentration would also have the effect of creating links between Salzgitter and the other major suppliers of such strips,
namely the Usinor group and the Thyssen group, and that it could not be ruled out that, in the context of those links, the
parties to the concentration and the said other suppliers would be prompted to coordinate their activities in the markets
for the raw materials necessary for the production of pipes, to the disadvantage of independent pipe producers. Finally, the
applicants contended that their fears regarding the adverse effects of the concentration on their supplies of hot-rolled wide
strips had been confirmed by the fact that, since the implementation of the concentration in August 2000, the parties to it
had refused to supply Flender with hot-rolled wide strips.
Furthermore, it must be observed that, following the notification provided for by Article 4(3) of Regulation No 4064/89, Ferndorf
actively participated in the administrative procedure.
After Ferndorf, on its own initiative, asked the Commission to allow it to reply to the questionnaire which had been sent
to various economic operators in order to obtain information on the potential effects of the concentration on the markets
in question, Ferndorf raised various objections to the transaction. In particular, in its letters of 22 and 24 August 2000
and likewise in the reply to the questionnaire annexed to the second letter, Ferndorf stated that the concentration would
have the effect of strengthening the competitive situation of the parties to the concentration in the market for wide pipes
with spiral welding, to the detriment of independent pipe producers who, like itself, did not themselves produce the raw materials
necessary for making pipes and who are unable to obtain them at competitive prices from the major integrated steel groups.
It is also clear from paragraphs 20 to 23 of the ECSC decision, which forms part of the context of the statement of reasons
in the EC Decision (see paragraph 123), and from the Commission's pleadings, that the Commission took account of the objections
of the independent pipe producers such as Ferndorf in assessing the competition situation on the markets for the raw materials
necessary for making pipes, as well as on the pipe markets.
It must be observed that, in paragraph 23 of the ECSC decision, the Commission noted Salzgitter's declaration of non-discrimination.
However, it is clear from that passage, and it is also common ground between the parties, that it was precisely in order to
meet the objections raised by various independent pipe producers, such as Ferndorf, that in the declaration in question Salzgitter
undertook not to apply discriminatory conditions with regard to supplying independent pipe producers with quarto plates and
hot-rolled wide strips.
In those circumstances it must be concluded that the EC decision is of direct and individual concern to Ferndorf.
In addition, since one and the same application is involved, there is no need to consider whether the other applicants are
entitled to bring proceedings (see the judgments in Case C-313/90
CIRFS and Others
v
Commission
[1993] ECR I-1125, paragraph 31, and Joined Cases T-127/99, T-129/99 and T-148/99
Diputación Foral de Álava and Others
v
Commission
[2002] ECR II-1275, paragraph 52).
It follows from the foregoing that the action is admissible in so far as it seeks the annulment of the EC decision.
C ─
The applicants' submission that the action is admissible in its entirety in so far as it seeks the annulment of two decisions
which in reality form a single decision
1.Arguments of the parties
The applicants consider that the Commission's arguments seeking to show that the action is inadmissible are based on a mistaken
view of the law, namely that the ECSC decision and the EC decision are independent legal acts which are based on different
provisions and are therefore subject to different conditions with regard to the admissibility of the applications seeking
their annulment. The applicants take the view that in reality the two decisions form a single administrative act to which
uniform conditions of admissibility must be applied, so that an application which, as in the present case, meets the admissibility
conditions of one of the two treaties must be declared admissible in its entirety.
In support of this assertion, the applicants contend, first, that the Commission's view of the law is undermined by the fact
that the contested decisions have as their subject one and the same indivisible concentration plan which, pursuant to Article 66(1)
CS and Article 7(1) of Regulation No 4064/89, falls within the ambit of the appraisal of concentrations by the Commission
and which consequently can be lawful only if it meets the requirements of both. According to the applicants, a single decision
ought therefore to have been adopted which fulfilled the requirements of both legislative fields.
Second, they consider that the fact that the adoption of separate decisions may possibly lead to contradictory results is
contrary to the principle that administrative action must be consistent and lawful. That requires the Commission's decisions
to take account of the legal rules which fall within its competence and which are applicable to the subject-matter of the
procedure or which may influence its assessment (see the judgments in Case C-225/91
Matra
v
Commission
[1993] ECR I-3203, paragraphs 41 and 42; Case C-164/98 P
DIR International Film and Others
v
Commission
[2000] ECR I-447, paragraphs 21 and 30, and Case T-156/98
RJB Mining
v
Commission
[2001] ECR II-337, paragraph 112).
Third, the applicants consider that the Commission's approach conflicts with the trends expressed in its Notice concerning
alignment of procedures for processing mergers under the ECSC and EC Treaties (OJ 1998 C 66, p. 36,
the Procedure Alignment Notice) in so far as it is clear from the notice that concentrations falling within the scope of the two prohibitions must be examined
from both viewpoints in the course of a single procedure and that the rules of Regulation No 4064/89 and its implementing
provisions apply in a similar manner to the present procedure.
Fourth, the applicants consider that the Commission's approach is mistaken in so far as, the concentration having probably
been the subject of a single notification, the Commission could only have given a ruling on the transaction in a decision
adopted within one month of the receipt of notification (Article 10(1) of Regulation No 4064/89). They observe that although,
in the Procedure Alignment Notice, the Commission did not accept that the one-month period was generally binding, in a case
such as the present the one-month period should be applied because of the requirement of legal certainty and the need to avoid
distorting the notification system established by Regulation No 4064/89.
Fifth, the applicants contend that the Commission's approach is wrong in view of the expiry of the ECSC Treaty in 2002. An
examination from the point of view of merger control presupposes a long-term assessment of the effects of the concentration
on market structures, so that the Commission ought to have taken account, having regard to the law deriving from the EC Treaty
relating to the merger control, of the structural changes in competition conditions which the concentration was likely to
cause in the steel markets and consumer goods markets situated downstream in the economic process, and ought to have done
so with respect to a period extending beyond the period of validity of the ECSC Treaty.
Finally, the applicants submit that the Commission's approach restricts their legal protection in so far as there is a possibility
that, in certain cases, that approach may mean that an interested party would be compelled to bring an action for the annulment
of the first decision before even having any knowledge of the second.
The Commission rejects the entire argument that it ought to have authorised the concentration in a single decision.
2.Findings of the Court
First of all, it must be observed that the concentration at issue falls within the scope of both the ECSC Treaty and the EC
Treaty in so far as the parties to the concentration are active not only in the production of steel, as defined in Annex I
to the ECSC Treaty, but also in sectors further down the steel-processing line which fall within the scope of the EC Treaty
and not the ECSC Treaty (hereinafter referred to as
a mixed concentration).
According to settled case-law, it follows from Article 305(1) EC that the rules of the ECSC Treaty and all the provisions
adopted in implementation of that Treaty remain in force as regards the functioning of the common market, notwithstanding
the supervening EC Treaty (see the judgments in Case 239/84
Gerlach
[1985] ECR 3507, paragraph 9, and Joined Cases C-74/00 P and C-75/00 P
Falck and Acciaierie di Bolzano
v
Commission
[2002] ECR I-7869). Therefore, in so far as Article 66 of the ECSC Treaty lays down specific rules for the appraisal of concentrations,
those rules apply, as
lex specialis
, to concentrations or the parties thereto covered by the Treaty. It follows that, in the particular case of a mixed concentration,
the aspects of the transaction which fall within the scope of the ECSC Treaty must be examined in the light of the rules laid
down by Article 66 CS, while all other aspects of the concentration must be examined in the framework of the general system
for the appraisal of concentrations established by Regulation No 4064/89.
Moreover, as both Article 66 CS and Regulation No 4064/89 lay down a prior authorisation system for concentrations, the parties
to a mixed concentration can implement a notified proposal for a concentration only if they have two separate authorisations,
namely one pursuant to Article 66(2) CS for those parts of the concentration covered by the ECSC Treaty, and the other pursuant
to Regulation No 4064/89 for those parts which are within the scope of the EC Treaty.
Simply in view of those special features, it was therefore open to the Commission to adopt two different decisions for authorising
the concentration at issue. In addition, this was all the more justified in that the rules of Article 66 CS and those of Regulation
No 4064/89 differ in substantive and procedural respects.
Accordingly, the Court finds that the conditions for authorising a concentration which are laid down by those provisions and,
consequently, the very object of the control for which they provide are not the same. Under Article 66(2) CS, the Commission
may authorise a concentration falling within the scope of the ECSC Treaty only if the operation does not give the persons
or undertakings concerned the power
to determine prices, to control or restrict production or distribution or to hinder effective competition in a substantial
part of the market for those products or
to evade the rules of competition instituted under this Treaty, in particular by establishing an artificially privileged position
involving a substantial advantage in access to supplies or markets. On the other hand, under Article 2(2) of Regulation No 4064/89, the Commission may declare a concentration compatible with
the common market only if it does not create or strengthen
a dominant position as a result of which effective competition would be significantly impeded in the common market or in a
substantial part of it.
Furthermore, there are many procedural differences. For example, unlike the rules for the appraisal of concentrations laid
down in Article 66 CS, Regulation No 4064/89 provides for the publication of notification in the Official Journal (Article
4(3)), for strict time-limits for the adoption of decisions in connection with the control of concentrations (Article 10)
and for a statement of objections as well as for access to the file before the Commission adopts a decision declaring a concentration
incompatible with the common market or approving a concentration subject to certain conditions (Article 18(1) and (3)).
Therefore the Commission manifestly did not err in law by adopting two separate decisions in order to authorise the concentration
at issue.
This conclusion cannot be refuted by any of the applicants' arguments.
First of all, the applicants are wrong in claiming that the Commission was not entitled to adopt two separate decisions in
so far as their subject-matter is one and the same indivisible concentration plan which, pursuant to Article 7(1) of Regulation
No 4064/89 and Article 66(1) CS, fell within the scope of the system for the appraisal of concentrations by the Commission
and which therefore could be lawful only if it satisfied the requirements of both. As has just been stated, the mere fact
that different systems of review are laid down in the ECSC Treaty and the EC Treaty in itself permitted the Commission to
adopt two separate decisions for authorising a mixed concentration, particularly as the review required by Article 66 CS differs
in the procedural and substantive respects from that provided for by Regulation No 4064/89. This conclusion is not called
into question by the fact that one and the same indivisible concentration is involved. Although, from an economic viewpoint,
a notified mixed concentration generally represents an indivisible whole for the persons giving the notification, this does
not remove the need, from a legal viewpoint, for two separate authorisations from the Commission, namely authorisation under
Article 66(2) CS for those aspects of the concentration which fall within the ambit of the ECSC Treaty, and authorisation
pursuant to Regulation No 4064/89 for the remainder of the concentration.
Second, the Court rejects the applicants' argument that the adoption of separate decisions in the case of a mixed concentration
is contrary to the Commission's obligation to ensure that its decisions are consistent. Although, according to settled case-law,
the Commission must in principle avoid inconsistency which may arise in the implementation of different provisions of Community
law (see the judgment in the case of
Matra
v
Commission,
cited in paragraph 61 above, paragraphs 41 and 42, and
DIR International Film and Others
v
Commission
, cited in paragraph 61 above, paragraphs 21 and 30), it must be observed that the mere fact that the Commission adopts two
separate decisions in the context of the control of a mixed concentration does not, as such, breach that obligation. Contrary
to what the applicants suggest, the possibility that the adoption of separate decisions may ultimately result in the Commission
authorising the concentration in its entirety or partly from the ECSC viewpoint and prohibit it in its entirety or partly
from the EC viewpoint is not an inconsistency, but rather arises from the fact that concentrations or certain parts of concentrations
are subject to different substantive and procedural rules, depending on whether they fall within the ambit of the ECSC Treaty
or the EC Treaty. Moreover, the same applies with regard to the possibility that an application for the annulment of decisions
approving a mixed concentration may lead to a different result for the decision adopted under Article 66 CS and for that adopted
pursuant to Regulation No 4064/89. Regardless of whether the Commission adopts a single decision or two separate decisions,
the Community Courts will necessarily have to review the legality of those decisions in the light of the different rules laid
down by the two systems.
It is true that, according to the case-law cited above, the Commission must avoid inconsistency when reviewing a mixed concentration
in light of the conditions laid down in Article 66 CS and Regulation No 4064/89. However, the applicants have put forward
no grounds to show that the Commission failed to fulfil that obligation in the present case. Furthermore, it must be observed
that that is not the case here because, as the contested decisions clearly show, they were adopted by the Commission in the
context of a coherent, global assessment of the notified concentration. Not only are the descriptions of the parties' activities
and of the operation given in paragraphs 3 to 11 of the ECSC decision and paragraphs 3 to 8 of the EC decision almost identical
but, in addition, in paragraph 11 of the ECSC decision the Commission clearly stated that the aspects of the concentration
which fell within the scope of the EC Treaty were examined in the framework of the EC decision while, in paragraph 8 of the
EC decision, it observed that the aspects of the concentration which fell within the scope of the ECSC Treaty were examined
in the ECSC decision. Finally, in paragraphs 20 to 23 of the ECSC decision, the Commission discussed the potential effects
of the concentration on the ECSC markets situated immediately upstream of the pipe markets which fall within the ambit of
the EC Treaty. The Commission took account of the reservations formulated in that respect by the pipe producers, namely that,
as a result of the concentration, the parties thereto would no longer be interested in supplying them with the raw materials
required for making steel pipes because in that market they were in direct competition with the subsidiary companies of the
parties to the concentration. In response to these reservations, the Commission assessed the potential effects which the position
of the parties to the concentration in the ECSC markets situated upstream could have on the competition situation in the EC
markets situated downstream, namely the pipe markets.
Third, the applicants are wrong in referring to the Procedure Alignment Notice as evidence that the Commission was not entitled
to adopt separate decisions.
It must be observed that, according to the clear wording of the notice, it is
designed to increase transparency and improve compliance with the rights of the defence in connection with the examination
of [proposed] mergers [covered by the ECSC Treaty] and to expedite decision making (paragraph 1). The notice also aims to meet the expectations of undertakings, in particular as regards mixed merger operations,
to simplify procedures and, finally,
to make it possible for ... undertakings to familiarise themselves with the procedures of law against the background of the
forthcoming expiry of the ECSC Treaty (paragraph 2). To attain these objectives, the Commission provided for the application, by analogy, to concentrations covered
by the ECSC Treaty, of a certain number of rules laid down by Regulation No 4064/89 and the measures adopted for implementing
it. On the other hand, contrary to the applicants' suggestion, at no time did the Commission assert that it would apply, by
analogy, all the rules laid down by Regulation No 4064/89 and the measures implementing it. On the contrary, the Commission
clearly stated that only a few specific rules would be applied by analogy.
It must also be observed that the notice, which contains a number of rules imposed by the Commission on itself, in no way
excludes the possibility of adopting separate decisions when the Commission approves a mixed concentration. On the contrary,
the notice lays down rules for simplifying procedure and minimising difficulties arising from the fact that the notified concentration
is covered by two different treaties and is examined in the light of their differing provisions. This applies, in particular,
to the time-limits for the adoption of Commission decisions under the ECSC Treaty (paragraphs 7 to 9 of the notice). Accordingly,
although Article 66 CS does not fix a time-limit for the adoption of a decision authorising a concentration covered by that
Treaty, the Commission states in paragraph 7 of the notice that it
will endeavour to adopt its decision within one month of notification. This undertaking, which is of the nature of an obligation to use best endeavours, ensures that, in the case of a mixed concentration,
the Commission will give its authorisation under the ECSC Treaty by a date as close as possible to that for the issue of authorisation
under the EC Treaty which, pursuant to Article 10(1), must be within one month of notification of the concentration.
In this connection it is necessary to reject the applicants' argument that the principle of legal certainty and the need to
maintain the notification system resulting from Regulation No 4064/89 mean that, in the case of a mixed concentration, the
one-month period laid down by Article 10(1) of the Regulation should also have been applied to the decision adopted on the
basis of the ECSC Treaty. It is true that, as opposed to the system for the appraisal of concentrations covered by the EC
Treaty, the Commission is not bound by strict time-limits when it adopts a decision relating to the appraisal of concentrations
covered by the ECSC Treaty, and this may have the effect of placing the parties to a mixed concentration in a difficult position.
This applies particularly where the Commission has already approved the part of the concentration covered by the EC Treaty,
but not yet the part covered by the ECSC Treaty. Where that is the case, although the interested parties have an authorisation
in relation to the part covered by the EC Treaty, they must wait until the Commission also approves the part of the concentration
falling within the scope of the ECSC Treaty before they implement the entire operation. However, it is clear that, contrary
to what the applicants suggest, the uncertainty of this situation does not give rise to any legal uncertainty whatever for
the operation in question because, from the viewpoint of Community law, it has not yet been possible to put it into effect.
Furthermore, it is precisely in order to keep this situation of uncertainty as short as possible that the Commission states,
in the notice on the alignment of procedures, that it will endeavour to adopt ECSC decisions within one month of notification.
Fourth, the applicants' argument that the adoption of separate decisions restricts their legal protection must also be rejected.
It must be observed that, in the present case, the ECSC decision was adopted nine days after the EC decision, that is to say,
within a particularly short period. In this way the Commission adhered to its announcement, in paragraph 7 of the notice on
the alignment of procedures, that it would
endeavour to adopt its decision [under the ECSC Treaty] within one month of notification. Likewise the Commission's adoption of the ECSC decision shortly after the EC decision de facto rules out the situation mentioned
by the applicants in which they would have been compelled to bring an action for the annulment of the EC decision before the
ECSC decision was ... adopted. In the present case, the applicants learnt of the contested decisions by fax of 4 October 2000,
so that the two-month time-limit for the institution of proceedings pursuant to the fifth paragraph of Article 230 EC had
not begun to run when the Commission adopted the ECSC decision.
Finally, it must be noted that, contrary to the applicants' assertion, the fact that the ECSC Treaty was going to expire in
the course of 2002 did not prevent the Commission from adopting two separate decisions for authorising the concentration at
issue. The expiry of the ECSC Treaty cannot hide the fact that, so long as it was in force, it was incumbent on the Commission
to ascertain, in the light of the conditions laid down in Article 66 CS, whether the concentrations or parts of concentrations
covered by that Treaty could be authorised. It is common ground that the ECSC Treaty was in force on the date of adoption
of the ECSC decision by the Commission. Furthermore, at no time have the applicants shown in what way the impending expiry
of the Treaty prevented the Commission from making a correct appraisal, by reference to the conditions set out in Article 66(2)
CS, of the notified concentration.
In view of the foregoing, there is no foundation for the applicants' submissions seeking to show that, in a case such as the
present, it is sufficient that the conditions for admissibility are fulfilled with regard to one of the two decisions authorising
the concentration at issue for the action to be ruled admissible in its entirety and those submissions must be dismissed.
It must also be found that there was nothing illegal in the Commission's adoption of two separate decisions for authorising
the concentration at issue.
D ─
Admissibility of Mannemann's statement in intervention
1.Arguments of the parties
The applicants contend that Mannesmann's statement in intervention breaches the second subparagraph of Article 116(4) of the
Rules of Procedure and the obligation to state reasons, and that it must therefore be ruled inadmissible in so far as the
intervener refrained from giving its own reasons in its statement in intervention, but merely referred to Salzgitter's statement.
2.Findings of the Court
The second subparagraph of Article 116(4) of the Rules of Procedure reads as follows: The statement in intervention shall contain:
a)
a statement of the form of order sought by the intervener in support of or opposing, in whole or in part, the form of order
sought by one of the parties;
b)
the pleas in law and arguments relied on by the intervener;
c)
where appropriate, the nature of any evidence offered.
In the present case, Mannesmann informed the Court, by letter of 2 July 2001, that it fully supported the Commission's arguments
and that it also agreed with the form of order sought, namely to dismiss the action as inadmissible or unfounded and to order
the applicants to pay the costs. However, Mannesmann added that, to avoid repetition, it wished to refer to the arguments
in Salzgitter's statement of intervention, which it had helped to prepare.
Contrary to the applicants' assertion, this approach is not contrary to Article 116(4) of the Rules of Procedure and the obligation
to state reasons.
In acting in this way, Mannesmann merely referred to a pleading which contains all the particulars required by the second
subparagraph of Article 116(4) of the Rules of Procedure. Furthermore, that pleading was lodged on the same day, in the same
case before the same chamber of the Court of First Instance. Consequently there is no risk of confusion. In addition, this
method saves the limited resources of the Community Courts. Finally, as the intervener did not refer to future decisions or
decisions the content of which it could not have known, this method is not incompatible with the responsibility of each party
for the content of the pleadings which it lodges.
It must be added that the case-law cited by the applicants in support of their assertion is irrelevant.
Although, in the judgment in Case T-37/91
ICI
v
Commission
[1995] ECR II-1901, the Court did not accept that the applicant in that case could refer generally to the applications which
it had lodged in two other cases, that refusal was nevertheless based on the finding that the pleas in law and the arguments
in those two applications concerned
two separate markets and two different infringements (paragraph 46 of the judgment) and, above all, two different actions the files of which had not been joined, which constituted
a reference to a document not forming part of the file. That is manifestly not the case here, where the reference is to a
pleading in the same case and before the same chamber. In addition, in paragraph 47 of that judgment, the Court accepted a
reference to the statements which had been lodged in a different case because
the parties, the agents and the lawyers are identical, the two actions were brought before the Court on the same day, ...
the two cases have been pending before the same Chamber and have been assigned to the same Judge-Rapporteur and, finally,
... the contested decisions concern the same market. Therefore, if the Court rightly accepted that the reference to statements lodged in another case could be authorised, this
applies all the more to a reference to a pleading lodged in the same case and before the same chamber, as is the case here.
The judgments in Case C-347/88
Commission
v
Greece
[1990] ECR I-4747 and Case C-43/90
Commission
v
Germany
[1992] ECR I-1909 do not support the assertion that Mannesmann's method was irregular. In those cases the Commission, which
had asked the Court of Justice to find that the States concerned had failed to fulfil their obligations, referred to a number
of complaints which were set out only in letters of formal notice addressed to those States. The Court ruled that such a reference
to complaints which did not appear in the applications was inadmissible because it clearly contravened Article 19 of the Protocol
on the Statute of the Court of Justice and Article 38(1)(c) of the Rules of Procedure of the Court of Justice, which provides
that the application must include, inter alia, a summary of the pleas in law on which the application is based (
Commission
v
Greece
, paragraphs 28 and 29, and
Commission
v
Germany
, paragraphs 5 to 9).
Finally, the order of the Court of Justice in Case C-338/93 P
De Hoe
v
Commission
[1994] ECR I-819, paragraphs 28 to 30, does not confirm the applicants' claims. In the context of an appeal against the judgment
of the Court of First Instance dismissing his action, Mr De Hoe complained that the Court of First Instance was mistaken in
maintaining that the reproduction in the body of the application of the entire content of the complaint did not satisfy either
the requirements of the first paragraph of Article 19 of the Statute of the Court of Justice or those of Article 44(1)(c)
of the Rules of Procedure. The judgment of the Court of Justice dismissed this complaint, observing that, in the circumstances
of the case, the mere reproduction in the body of the application of the entire content of the complaint could not mitigate
the failure to state the grounds on which the action was based (paragraph 29 of the order). It is clear that this reasoning
cannot be applied to the present case, which concerns a reference to a statement in intervention lodged by another intervener
in the same contentious proceedings.
The substance of the case
A ─
Plea relating to error of assessment concerning the effects of the concentration at issue on the market for large welded steel
pipes
1.Arguments of the parties
The applicants contend that the Commission erred in its assessment of the effects, both horizontal and vertical, of the concentration
at issue on the market for large welded steel pipes.
Regarding the horizontal effects, the applicants claim that the accuracy of the size of the shares held by the parties to
the concentration in the large pipes market, given in the EC decision, is doubtful in so far as the Commission took into account
the sales volume of an undertaking which was never active in that market (Linde), another undertaking which has not operated
in that market since 1993 (Gräbener) and, finally, an undertaking which was the subject of insolvency proceedings at the date
of adoption of the contested decision (Klöckner Muldenstein). In addition, the applicants observe that, assuming that the
Commission's figures are correct, it follows that, with a market share of 30.5% (paragraph 36 of the EC decision) and in view
of the considerable gap between them and the other competitors, the parties to the concentration dominate the large welded
pipe market.
With regard to the vertical effects of the concentration at issue, the applicants submit that it is clear from Form CO annexed
to Regulation No 447/98 and from Article 2(1)(b) and (c) of Regulation No 4064/89 that, in the appraisal of concentrations,
the Commission must take account not only of the horizontal effects, but also the vertical effects of the notified concentration
on a given market. They consider that this assessment is all the more important in the present case in so far as, following
the concentration at issue, the very strong position of the parties to the concentration on the large welded pipes market
was strengthened by their position in the market for the raw materials intended for the production of such pipes, namely,
first, hot-rolled wide strips and, secondly, quarto plates. The applicants claim that the Commission did not take account,
or sufficient account, of these vertical effects.
Accordingly, with regard to quarto plates used in the production of large pipes with longitudinal welding, the applicants
observe that, as appears from paragraphs 17 to 19 of the ECSC decision, the parties to the concentration have a very strong
position in that market because, together with Usinor/DH and Riva, they have a market share of 96%, which indicates that they
form an oligopoly in that market. According to the applicants, this factor is all the more important in that the three undertakings
in question, with a market share of 50%, occupy a strong position in the market downstream of the market for large pipes with
longitudinal welding. However, they observe that the Commission omitted to take account of that factor in the EC decision
which, according to the applicants, is a breach of Article 2(1) of Regulation No 4064/89.
Regarding hot-rolled wide strips for the production of pipes, the applicants consider that the concentration at issue has
fundamentally changed the situation of the parties to the concentration in that market because, thanks to Salzgitter's production
of hot-rolled wide strips, MRW now has an independent source of supply of raw materials, which strengthens its position in
the market downstream of the market for large pipes with spiral welding, to the detriment of independent producers, including
Ferndorf.
The applicants add that Salzgitter's assertion that the parties to the concentration have only a 4.2% share of the market
for hot-rolled wide strips is based on the mistaken assumption that this market brings together all such strips, disregarding
their intended use. The applicants observe that, from the viewpoint of the relevant technical and standardisation constraints,
the production of hot-rolled wide strips for the production of steel pipes differs so much from the production of such strips
for other purposes such as, for example, vehicle manufacture, that there is no interchangeability between the two categories
of products. According to the applicants, the lack of interchangeability is made more acute by the fact that the steel producers
charge different prices according to whether the hot-rolled wide strips are for making pipes or for other purposes. The applicants
add that this error regarding the definition of the market for reference products has numerous repercussions on the statement
of Salzgitter and the Commission because, if the definition of the product market proposed by the applicants is applied, it
transpires that Salzgitter's market share is much larger that it claims. They observe that, in the footnote on page 20 of
the statement in defence, the Commission implicitly recognised the accuracy of the definition of the product market proposed
by the applicants.
The applicants likewise assert that the Commission erred in its assessment concerning the definition of the geographical market
for hot-rolled wide strips. According to the applicants, there are several indications that the market does not extend to
the whole of the Community, but is limited to national markets: first, only a small part of the production of hot-rolled wide
strips in the Community is the subject of intra-Community trade; second, imports of such strips from non-member countries
was limited by the imposition of very high anti-dumping duties [Commission Decision No 283/2000/ECSC of 4 February 2000 imposing
a definitive anti-dumping duty on imports of certain flat-rolled products of iron or non-alloy steel, of a width of 600 mm
or more, not clad, plated or coated, in coils, not further worked than hot-rolled, originating in Bulgaria, India, South Africa,
Taiwan and the Federal Republic of Yugoslavia and accepting undertakings offered by certain exporting producers and terminating
the proceedings concerning imports originating in Iran (OJ 2000 L 31, p. 15); Commission Decision No 1758/2000/ECSC of 9 August
2000 imposing a definitive anti-dumping duty on imports of certain hot-rolled flat products of non-alloy steel originating
in the People's Republic of China, India and Romania, accepting an undertaking with regard to India and Romania and collecting
definitively the provisional duties imposed (OJ 2000 L 202, p. 21)]; third, in the course of 2000 the prices invoiced by Salzgitter
for supplying hot-rolled wide strips had risen by almost 74% and, finally, there were considerable differences in the prices
charged in the different Member States for hot-rolled wide strips and quarto plates.
In addition, the applicants consider that, in calculating market shares with respect to hot-rolled wide strips, the Commission
ought also to have taken account of the production of such strips by MRW, even if the latter sub-contracts such work to TKS.
According to the applicants, the mere fact that MRW is not authorised to sell those strips to third parties by reason of public
obligations imposed on it by the Commission does not alter that conclusion because, in the event of the cancellation of those
obligations, MRW would in any case be a potential seller of hot-rolled wide strips and therefore a potential competitor of
Salzgitter and other undertakings.
The applicants also observe that, in paragraph 14 of the ECSC decision, the Commission left open the question whether there
was any overlapping between the market for hot-rolled wide strips and quarto plates. According to the applicants, there cannot
be the slightest doubt that, even in the Commission's concept, supplies of hot-rolled wide strips and quarto plates are available
on the same market so that, for the purpose of calculating shares in the quarto plate market, the Commission ought to have
included the quantities of hot-rolled wide strips sold by Salzgitter. Consequently the applicants consider that, as the Commission
made no findings whatever concerning the market for hot-rolled wide strips, its assessment of the quarto plates market is
flawed. According to the applicants, this conclusion is inevitable particularly as, in paragraph 17 of the ECSC decision,
the Commission found that the parties to the concentration had a 28% market share in sales of quarto plates alone, so that
the share would have been even greater if the Commission had taken account of Salzgitter's sales of hot-rolled wide strips.
Finally, the applicants consider that Salzgitter's declaration of non-discrimination is not sufficient to mitigate the shortcomings
of the decision regarding the assessment of the vertical effects of the concentration at issue, even if only because of the
non-binding nature of the declaration and the resultant difference in treatment of the interested parties. The applicants
also observe that their criticisms give rise to so many doubts as to the factual findings and the legal assessment in the
EC decision that the very existence of that decision should be doubted.
The Commission, supported in this respect by the interveners, disputes the whole of the applicants' argument that it erred
in its assessment of the horizontal and vertical effects of the concentration at issue on the market for large welded pipes.
2.Findings of the Court
First, it must be observed that the basic provisions of Regulation No 4064/89, in particular Article 2 thereof, confer a discretion
on the Commission, especially with respect to assessments of an economic nature. Consequently, review by the Community judicature
of the exercise of that discretion, which is essential for defining the rules on concentrations, must take account of the
discretionary margin implicit in the provisions of an economic nature which form part of the rules on concentrations (Joined
Cases C-68/94 and C-30/95
France and Others
v
Commission
[1998] ECR I-1375, paragraphs 223 and 224; Case T-102/96
Gencor
v
Commission
[1999] ECR II-753, paragraph 165, and Case T-221/95
Endemol
v
Commission
[1999] ECR II-1299, paragraph 106).
The applicants' argument that the Commission erred in its assessment of the horizontal effects of the concentration at issue
on the market for large welded pipes and, then, the same argument in relation to the vertical effects must be examined in
the light of these principles.
a) The horizontal effects of the concentration at issue on the market for large welded pipes
In paragraph 11 et seq. of the EC decision, the Commission examined the market for large pipes with longitudinal welding and
with spiral welding. In this connection, the Commission stated that the question whether large pipes with longitudinal welding
and large pipes with spiral welding form a single market or separate markets, and the question whether the relevant geographical
market is the European Economic Area (EEA) or the world market could be left open in so far as, in the present case, none
of the market definitions was conducive to a finding that a dominant position had been created or strengthened as a result
of the concentration.
In particular, the Commission found that, assuming that the relevant market is defined as the market for large pipes with
longitudinal welding and with spiral welding at the world level or at the EEA level, the concentration at issue did not have
the effect of creating or strengthening a dominant position. If the market in question was a world market, the Commission
observed that, although the parties to the concentration had the leading position with a market share of 17%, first, the other
competitors had a total market share of more than 80%, second, in the period 1997-1999 only 36% on average of the production
capacity for large pipes at the world level was used and, third, the major international oil and gas companies had a very
strong position in terms of demand. Likewise the Commission stated that, on the assumption that the market in question was
confined to the EEA, the concentration would again not lead to the creation or strengthening of a dominant position even though
the parties to the concentration had the leading position with a market share of 30.5%. First, the other competitors had a
total market share of approximately 70%, second, in the period 1997-1999 only 51% on average of the production capacity for
large pipes in the EEA was used, third, the claim under consideration, namely that the market is limited to the EEA, is based
mainly on specific segments such as water and construction, which represent only a secondary activity of the parties to the
concentration and in which they have numerous competitors, and, fourth, the major international oil and gas companies have
a very strong position in terms of demand in this market too.
In addition, the Commission considered that the concentration at issue did not have the effect of creating or strengthening
a dominant position in the (narrower) market of large pipes with spiral welding at the world level or that of the EEA. At
the world level, the combined market share of the parties to the concentration was only 8.6%. At the EEA level, the concentration
likewise did not have the effect of creating or strengthening a dominant position although the parties to the concentration
had a leading position in the EEA with a market share of 21.2%. First, they had a relatively limited market share and they
had significant competitors, second, in the period 1997-1999 only 51% on average of the production capacity for large pipes
in the EEA was used, third, the case under consideration, namely that the market is limited to the EEA, is based mainly on
specific segments such as water and construction, which represent only a secondary activity of the parties to the concentration
and in which they have numerous competitors, and, fourth, the major international oil and gas companies have a very strong
position in terms of demand in this market too.
The foregoing grounds show, clearly and unequivocally, that, with regard to horizontal effects on the market for large welded
pipes, the concentration at issue was not such as to raise serious doubts concerning its compatibility with the common market.
This conclusion is not invalidated by any of the applicants' arguments in that respect.
Contrary to the applicants' assertion, the mere fact that, according to paragraph 36 of the EC decision, the parties to the
concentration together have a 30.5% share of the EEA market for large pipes with longitudinal welding and spiral welding does
not mean, as such, that the concentration has the effect of creating or strengthening a dominant position in that market.
Although the relationship between the market shares of the undertakings involved in the concentration and those of their competitors,
especially those of the next largest, is relevant evidence of the existence of a dominant position (see the judgment in
Gencor
v
Commission
, cited in paragraph 105 above, paragraph 202), in the present case the Commission nevertheless set out clearly and unambiguously
the reasons why it found that there was no dominant position (see paragraph 108 above). The applicants have failed to produce
any evidence which would refute those grounds.
In addition, it is necessary to reject the applicants' argument that the accuracy of the size of the shares held by the parties
to the concentration in the longitudinally welded and spirally welded large pipes market is doubtful in so far as, for the
purpose of calculating market shares, the Commission took into account the sales volumes of Linde, which was never active
in that market, of Gräbener, which has not operated in that market since 1993 and, finally, of Klöckner Muldenstein, which
was the subject of insolvency proceedings on the date of notification.
Leaving aside Gräbener, which confirmed in a letter of 7 September 2001 that it had ceased the production of pipes in 1997,
the applicants' allegations concerning Linde and Klöckner Muldenstein are not based on any concrete evidence and are furthermore
refuted by the information provided by the Commission. The 2000 edition of the study
Tube Mills of the World
, various extracts from which were produced by the Commission, clearly mentions the names of those companies and carefully
describes the nature and extent of their activities in the pipe production sector. Moreover, although Klöckner Muldenstein,
which replied to the Commission's questionnaire, was the subject of insolvency proceedings on the date of adoption of the
EC decision, that did not prevent the Commission from taking account of its market position. There was nothing to stop all
or part of that company's pipe production from being continued, particularly if its business was taken over by another undertaking.
In any case, it must be observed that, in reply to a written question from the Court, the Commission showed clearly and convincingly
that, even if the market shares of the three companies in question were not to be taken into account, the situation of the
parties to the concentration in the market for large welded pipes would not have been fundamentally different, so that this
circumstance would not have affected the Commission's assessment of the compatibility of the concentration with the common
market. This statement of the Commission has not been challenged by the applicants.
Therefore the applicants' argument that the Commission erred in its assessment of the horizontal effects of the concentration
at issue on the market for large welded pipes must be dismissed.
b) The vertical effects of the concentration at issue on the market for large welded pipes
The parties' submissions concerning the vertical effects of the concentration at issue on the market for large pipes with
longitudinal welding must be considered separately from such submissions in relation to the market for large pipes with spiral
welding. It is clear from paragraphs 12 and 13 of the EC decision that large pipes with longitudinal welding are made from
quarto plates, whereas large pipes with spiral welding are made from hot-rolled wide strips.
The vertical effects of the concentration at issue on the market for large pipes with longitudinal welding
According to the applicants, the Commission erred in its assessment of the vertical effects of the concentration at issue
on the market for large pipes with longitudinal welding in so far as it appears from paragraphs 17 to 19 of the ECSC decision
that the parties to the concentration have a very strong position in the upstream market for quarto plates used in the production
of large pipes with longitudinal welding, which strengthens their position in the latter market. Together with Usinor/DH and
Riva, they have a 96% share of the market for quarto plates used in the production of large pipes with longitudinal welding,
which indicates that they form an oligopoly in that market.
However, the Court observes that the Commission pointed out, in its pleadings and in reply to a written question from the
Court, that the market shares mentioned in paragraphs 17 to 19 of the ECSC decision were not market shares in the technical
sense of the term because, in addition to deliveries of quarto plates to third parties, they also included deliveries of quarto
plates which were internal to the group. According to the Commission, the market shares of the parties to the concentration
in the open market for quarto plates for all uses and in the (narrower) market for quarto plates used in the production of
large pipes with longitudinal welding were distinctly smaller because they fluctuated between 6.2% and 7.3% for quarto plates
for all uses and were 10.6% for 1997 and 9.1% for 1999 for plates used in the production of large pipes with longitudinal
welding.
In view of these figures, which have not been challenged by the applicants, the Commission was justified, without making an
erroneous assessment, in considering that the position of the parties to the concentration in the upstream market for quarto
plates was not capable of creating or strengthening a dominant position of any kind in the downstream market for large pipes
with longitudinal welding and, therefore, of giving rise to serious doubts as to the compatibility of the concentration at
issue with the common market.
Next it must be observed that, even accepting that the market shares mentioned in paragraphs 17 to 19 of the ECSC decision
are shares in the open market, the mere fact that three undertakings together have a very large share of a given market is
not, as such, proof that they form an oligopoly. It has consistently been held that a finding of a collective dominant position
depends on three conditions being fulfilled: first, each member of the dominant oligopoly must have the ability to know how
the other members are behaving in order to monitor whether or not they are adopting the common policy; second, the situation
of tacit coordination must be sustainable over time, that is to say, there must be an incentive not to depart from the common
policy on the market; third, the foreseeable reaction of current and future competitors, as well as of consumers, should not
jeopardise the results expected from the common policy (see Case T-342/99
Airtours
v
Commission
[2002] ECR II-2585, paragraph 62). The applicants have produced no evidence to show that these conditions are fulfilled in
the present case.
Finally, it must be observed that, in paragraphs 20 to 22 of the ECSC decision, the Commission gave the reasons why it considered
that the concentration at issue would not have the effect of threatening the supply of quarto plates to undertakings competing
with the parties to the concentration in the market for large pipes with longitudinal welding. In particular, the Commission
pointed out, first, that Salzgitter's share of supplies of quarto plates to the open market was too small for its possible
withdrawal from the market to be a cause of concern, second, that pipe manufacturers obtained quarto plates from a number
of producers other than DH, third, that any reduction by DH in deliveries of quarto plates to third parties in order to give
preference to Europipe would affect the profitability of its rolling mills and would therefore automatically affect Europipe's
competitive position in the downstream market for large pipes with longitudinal welding and, fourth, very little use was being
made of the capacity of quarto plate rolling mills in Europe, so that the other producers of quarto plates for large pipes
with longitudinal welding could perfectly well supply pipe manufacturers who at present obtained supplies from Salzgitter.
It must be observed that these reasons form part of the context in which the EC decision was adopted. According to settled
case-law, the statement of reasons is not required to discuss all the issues of fact and of law in so far as the question
whether a statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording
but also to its context and to all the legal rules governing the matter in question (see Case T-290/94
Kaysersberg
v
Commission
[1997] ECR II-2137, paragraph 150, and the cases cited there). This means that, where a decision-making authority is competent
to adopt, in simultaneous procedures, two separate decisions concerning the same factual situation and that authority gives
notice of the decisions to one and the same interested party within a short interval, each decision may, from the viewpoint
of the duty to state reasons to that party, be regarded as forming part of the context of the other decision and may therefore
properly serve as an additional statement of reasons in relation to that party.
It follows that, in a case such as the present, where the Commission adopts two separate decisions in simultaneous procedures
in order to authorise one and the same concentration and the applicants are notified of the decisions simultaneously, the
statement of reasons given in one of the decisions must necessarily be assessed in the light of the statement of reasons in
the other. In such a case, although the appraisal carried out by the Commission in the decisions is based on different substantive
and procedural rules (see paragraphs 70 to 72 above), the separate decisions nevertheless relate to one and the same concentration,
so that in some respects the Commission's assessment may overlap.
In view of the foregoing, the applicants' argument that the Commission erred in its assessment of the vertical effects of
the concentration at issue on the market for large pipes with longitudinal welding must be dismissed as unfounded.
The vertical effects of the concentration at issue on the market for large pipes with spiral welding
According to the applicants, the Commission erred in its assessment in so far as it did not take account of the fact that
the concentration at issue altered the situation of the parties to the concentration in the market for large pipes with spiral
welding because, thanks to the production of hot-rolled wide strips by Salzgitter, MRW would thereafter have a secure source
of supply, which would strengthen its position in the said market to the detriment of independent producers such as Ferndorf.
However, it must be observed that the Commission, in its pleadings and in reply to questions from the Court, pointed out that
it was clear from the notification and from various information in its possession at the date of the notification that, first,
MRW did not sell hot-rolled wide strips to third parties and, second, that Salzgitter had a market share of distinctly less
than 25% because it sold to third parties only a small proportion of the hot-rolled wide strips which it produced. These figures
were confirmed by the interveners who stated, in their pleadings and at the hearing, that Salzgitter's share of the Community
market for hot-rolled wide strips was of the order of 4.2% for 1999.
In view of these figures, the Commission was justified, without making a manifestly erroneous assessment, in considering that
the position of the parties to the concentration in the upstream market for hot-rolled wide strips was not capable of creating
or strengthening a dominant position of any kind in the downstream market for large pipes with spiral welding and, therefore,
of giving rise to serious doubts as to the compatibility of the concentration at issue with the common market.
This conclusion is not invalidated by any of the applicants' arguments.
In the first place, the applicants are wrong in claiming that, apart from the quantities of hot-rolled wide strips sold to
third parties by Salzgitter, the Commission ought to have taken into account those produced by MRW.
As the applicants themselves admit, at the date of notification MRW was not making hot-rolled wide strips, but subcontracted
that work to Thyssen. The Commission pointed out, without being contradicted by the applicants, that it is extremely unlikely
that a manufacturer with no production plant of its own for hot-rolled wide strips could be a significant competitor in that
market. Furthermore, it must be observed that, although the applicants had received copies of Commission decision COM(70)25
of 20 January 1970 on the acquisition of certain parts of Mannesmann AG by August Thyssen-Hütte AG and the formation of the
joint venture Mannesmannröhren-Werke and another joint venture by Thyssen-Hütte AG and Mannesmann AG, to which they referred
in their pleadings and which was produced by the Commission before the hearing, the applicants have never been able to show
to what extent that decision confirmed their view that the Commission required MRW not to sell hot-rolled wide strips to third
parties. In those circumstances, the Commission did not err in its assessment in concluding that, with regard to such strips,
there was no reason to take account of MRW, even as a potential competitor.
Second, it is necessary to reject the applicants' submissions seeking to show that the assertion by the Commission and the
interveners that the parties to the concentration had a very limited share of the market for hot-rolled wide strips is based
on an erroneous delimitation of the market for reference products. Although, contrary to the Commission's allegation, this
submission cannot be deemed to be out of time, having been raised in sufficient detail in paragraphs 61 and 62 of the application,
it nevertheless proves to be completely unfounded.
It must be observed that, in its pleadings, the Commission pointed out that, in its established practice [see, in particular,
the Commission decisions authorising a concentration, 28 July 1997 (Case IV/ECSC.1243 ─ Krupp Hoesch/Thyssen, paragraph 19);
4 February 1999 (Case IV/ECSC.1268 ─ Usinor/Cockerill Sambre, paragraph 16) and 15 July 1999 (Case IV/ECSC.1310 ─ British
Steel/Hoogovens, paragraph 13)], it has found that hot-rolled wide strips and the other hot-rolled products belong to one
and the same market in so far as their production is characterised by a high degree of flexibility and capacity for adaptation
which enables producers to offer and sell different types and qualities of hot-rolled wide strips without substantially increasing
their costs. The applicants have not successfully challenged that finding. Contrary to the applicants' assertion, the mere
fact that end users do not consider the different types and qualities of hot-rolled wide strips to be interchangeable does
not show that those types and qualities belong to different markets, as the lack of interchangeability at the demand level
is compensated for by interchangeability with regard to supply.
It must, moreover, be observed that certain passages of the application confirm that the Commission's findings are correct.
For example, at paragraph 21 of the application, the applicants asserted that, when car sales are good, production capacities
of hot-rolled wide strips are fully used, so that the demand from independent pipe producers encounters considerable bottlenecks
with the main European suppliers. Furthermore, although the definition of the reference markets was mentioned in the questionnaire
sent by the Commission in the administrative procedure, neither Ferndorf nor any other party claimed that hot-rolled wide
strips for the production of pipes formed a market separate from that of strips for other purposes.
In this connection, the Court must reject the applicants' submission that, in footnote 20 of the defence, the Commission implicitly
admitted that the market definition which they approve accords with its administrative practice. In the footnote the Commission
merely stated that it was aware
that demand exists in the car industry for products with greater value added, in particular demand for cold-rolled sheets.
These are in turn made from hot-rolled wide strips. The Commission has consistently considered, and also in the present case,
that these sheets should not be included in the market for hot-rolled wide strips. Contrary to the applicants' assertion, this passage does not at all confirm their market definition with regard to hot-rolled
wide strips. In it the Commission does not assert that such strips intended for the production of pipes and such strips intended
for other uses form two separate markets, but it does say that hot-rolled wide strips on the one hand and cold-rolled sheets
obtained from hot-rolled wide strips ─ which are therefore on a market situated downstream of the latter ─ on the other hand,
do not belong to one and the same market.
For the same reason, it is also necessary to reject the applicants' argument that the price comparisons which they produced
in paragraphs 52 to 54 of the reply confirm the existence of separate markets, depending on the intended use of hot-rolled
wide strips. It must be observed that those comparisons are not of the prices of different types and qualities of hot-rolled
wide strips according to their use, but merely compare, on the one hand, the prices of hot-rolled wide strips with those of
cold-rolled products with or without tinning and, on the other hand, the prices of cold-rolled products in different Member
States. In no way do such comparisons make it possible to confirm the applicants' arguments regarding the definition of the
market for hot-rolled wide strips.
Finally, it must be noted that, even if the applicants' proposed narrower definition of the product market had to be accepted,
it would not have the repercussions they attribute to it. In particular, their statement that the total volume of sales to
third parties of hot-rolled wide strips intended for the production of pipes is 300 000 tonnes per year turns out to be incorrect.
As the interveners point out and as appears from table no. 6 entitled
Share of Community sales in 1999 of flat hot-rolled carbon steel products on page 29 of the Commission decision authorising a concentration, of 21 November 2001 (COMP/ECSC.1351 ─ Usinor/Arbed/Aceralia)
produced by the Commission, the total sales volume of hot-rolled wide strips at Community level was approximately 21.26 million
tonnes in 1999 and Salzgitter's share of that market was smaller than 5%. Contrary to the applicants' argument, that figure
relates only to sales of hot-rolled wide strips to third parties and does not include such sales within groups. Therefore,
even assuming, as the applicants say, that in 1999 only 28% of the total volume of hot-rolled wide strips at Community level
were used in the production of pipes, nevertheless the total volume of that market in 1999 was 6 050 000 tonnes and not 300 000
tonnes.
In this connection it should, however, be observed that the applicants' figure of 300 000 tonnes is not convincing because
of the calculation method used, which consists in adding the volume of hot-rolled wide strips purchased by Ferndorf and Flender
to the presumed volume of the same products purchased by the four other independent pipe producers still operating in the
Community (according to the applicants), namely Technotubi, Tubemeuse, De Boer Buizen and Wilson Byard. As shown by the documents
produced by the Commission and the interveners, there are in the Community many more than six undertakings producing pipes
from hot-rolled wide strips which do not belong to a large integrated steel group.
Likewise the applicants' argument that the purchases of hot-rolled wide strips by the large integrated steel groups should
not be taken into account must be rejected. Although the large groups have substantial internal production of those raw materials,
they still find it necessary to buy such strips from their competitors in order to cover temporary requirements. On this point,
the applicants' argument that these purchases should not be taken into account because they take place outside the market
in accordance with procedures which are not subject to supply and demand is not based on concrete evidence.
Third, the applicants' argument that the Commission's assessment regarding the position in the upstream market for hot-rolled
wide strips of the parties to the concentration is also based on an incorrect definition of the geographical reference market
must be rejected.
It has been consistently held that the relevant geographical market is a defined geographical area in which the product concerned
is marketed and where the conditions of competition are sufficiently homogeneous for all economic operators, so that the effect
on competition of the concentration notified can be evaluated rationally (see Case 27/76
United Brands
v
Commission
[1978] ECR 207, paragraphs 11 and 44, and the judgment in
France and Others
v
Commission
, cited in paragraph 105 above, paragraph 143).
In the present case the Commission has put forward a number of considerations to show that, as also appears from its established
practice (see, in particular, paragraph 25 of decision IV/ECSC.1243, paragraph 26 of decision IV/ECSC.1268 and paragraph 20
of decision IV/ECSC.1310, cited in paragraph 133 above), the geographical reference market for hot-rolled wide strips covers,
at the very least, the territory of the entire Community. In particular, the Commission observed that transport costs are
not very high, there are no barriers to entry and customers show only little preference for certain Community producers.
This viewpoint is confirmed by the study of the situation in the steel industry carried out by the Commission in 2001 (
the steel industry study), extracts from which were reproduced in the annex to the Commission's reply. It appears from the summary table of visible
consumption in the Member States and imports into each of them (page 23 et seq. of the study) that, contrary to the applicants'
assertion, imports are especially high when compared with the total volume of consumption of hot-rolled wide strips in the
Community.
Furthermore, the existence of a Community market for hot-rolled wide strips is confirmed in various passages of the applicants'
submissions. In paragraph 21 of the application, they point out that Flender obtained supplies of hot-rolled wide strips from
European sources and had asked
well-known European suppliers to supply it. The applicants added, in paragraphs 74 and 75 of the reply, that approximately 25% to 30% of their imports
of hot-rolled wide strips were from producers in other Member States, which confirms the hypothesis that a Community market
in hot-rolled wide strips exists.
On this point the applicants are wrong in claiming that their price comparison in the reply shows that the geographical reference
market is national rather than Community. It must be noted that, in paragraph 80 of the reply, they compare the prices of
quarto plates with those of hot-rolled wide strips, which is irrelevant for assessing the geographical reference market for
hot-rolled wide strips. It is true that, in paragraph 81 of the reply, the applicants compare the prices of hot-rolled wide
strips which are charged in the Community. However, it must be observed that the comparison relates only to minimum and maximum
prices for those products, which gives a distorted picture of the true situation. Moreover, even assuming that this comparison
is accepted, the applicants state that price differences are of the order of 10% to 15%. As the Commission correctly points
out, such an order of magnitude does not rule out the existence of a Community market.
Furthermore, it is also necessary to reject the applicants' allegation that, in paragraph 16 of the ECSC decision, the Commission
wrongly referred to the importance of imports from non-member countries to support the argument concerning a Community market
in hot-rolled wide strips. In actual fact, it is clear from the general context of the decision that the passage in question
did not relate to hot-rolled wide strips, but only to quarto plates and semi-finished products. The previous sentence states
clearly that the definition of the geographical market in question relates to quarto plates and semi-finished products, which
seems logical in so far as the Commission pointed out, in paragraph 13, that the activities of the parties to the concentration
did not overlap so far as those products were concerned. It also seems clear, from reading this passage, that, by reference
to imports from non-member countries, the Commission did not intend to show that the geographical market covered the territory
of the Community, but that it could possibly have a world dimension. In addition, the Commission's steel industry study makes
it clear that, contrary to the applicants' assertion, the imposition of anti-dumping duties on imports of hot-rolled wide
strips from non-member countries on the basis of decisions 283/2000/ECSC and 1758/2000/ECSC did not lead to a reduction in
such imports. On the contrary, it appears from page 7 of the study that they actually increased.
Fourth, it must be noted that there is no concrete evidence for the applicants' statement concerning Salzgitter's alleged
policy in relation to Flender concerning deliveries and prices of hot-rolled wide strips. The documents produced by the parties
show that the price increases referred to by the applicants related not only to the hot-rolled wide strips supplied to them
but to all steel products and that the increases were at least partly attributable to the boom in the whole of that market
during 1999 and 2000. Furthermore, even assuming that the applicants' information is correct, they have by no means shown
how Salzgitter's alleged acts are proof of a manifest error of assessment by the Commission regarding the effects of the concentration
at issue.
Finally, it is necessary to reject the applicants' assertion that the Commission ought to have taken account of overlapping
in the activities of the parties to the concentration in relation to the production of hot-rolled wide strips and quarto plates
and that the Commission ought to have included, for the purpose of calculating market shares, the quantities of hot-rolled
wide strips sold by Salzgitter on the open market. It must be observed, first, that this argument contradicts the applicants'
argument concerning the definition of the market for reference products for hot-rolled wide strips. It is contradictory to
suggest on the one hand that the Commission ought to have found that hot-rolled wide strips for the production of pipes and
such strips intended for other purposes form separate markets and, on the other hand, that the Commission ought to have found
that there was a wider market bringing together hot-rolled wide strips and quarto plates. Second, the Commission correctly
pointed out in its pleadings that where, in paragraph 14 of the ECSC decision, it left open the possibility of replacing,
for certain uses, quarto plates by plates cut in hot-rolled wide strips, that is precisely because it considered that, even
by reference to the narrower definition of the market, the concentration did not give rise to competition problems. As noted
above, the market shares of the parties to the concentration in the market for quarto plates (paragraph 119) and in that for
hot-rolled wide strips (paragraph 127), taken separately, were very limited.
Conclusion concerning the vertical effects of the concentration at issue on the market for large welded pipes
In light of all the foregoing, it must be concluded that the applicants have not shown that there was a manifest error of
assessment on the Commission's part with regard to the vertical effects of the concentration at issue on the market for large
welded pipes.
It is also clear from the foregoing reasoning that the applicants are mistaken in criticising the alleged shortcomings of
Salzgitter's declaration of non-discrimination. As it has been shown that there was no manifest error of assessment by the
Commission in finding that the vertical effects of the concentration at issue on the market for large welded pipes were unlikely
to raise serious doubts as to the compatibility of the concentration with the common market, the question whether Salzgitter's
declaration was or was not sufficient to mitigate those effects is irrelevant. In the circumstances, it was not even necessary
to provide for such an undertaking on the part of Salzgitter. There was even less need to provide that the concentration at
issue should be conditional upon such an undertaking.
c) General conclusion
Having regard to the foregoing, the plea that there was an error of assessment concerning the effects of the concentration
on the markets for large welded pipes must be dismissed in its entirety.
B ─
Plea relating to error of assessment concerning the effects of the concentration on the market for small pipes with longitudinal
welding
1.Arguments of the parties
The applicants consider that the EC decision contains an error of assessment concerning the effects of the concentration at
issue on the market for small pipes with longitudinal welding. They submit that the Commission cannot claim, in that respect,
that it did not have to assess the effects of the concentration on that market because the parties' activities did not overlap.
The applicants observe that such an approach, which is confined to the purely horizontal effects of a concentration, is contrary
to the principle expressed in form CO annexed to Regulation No 447/98 and in Article 2(1)(a) and (b) of Regulation No 4064/89,
namely that when appraising concentrations, the vertical effects must also be taken into account. According to the applicants,
this is the necessary conclusion particularly in the present case, where the concentration constitutes a threat to the existence
of independent producers of small pipes who, first, depend on Salzgitter for supplies of raw materials and, second, compete
with Salzgitter in the downstream market for the production of small pipes. In this connection the applicants dispute the
Commission's statement that the market shares of the parties to the concentration in the upstream markets for raw materials
were not such as to give rise to doubts concerning the strengthening of their position in the downstream market for small
tubes. According to the applicants, that statement is based on incorrect delimitation of the market for hot-rolled wide strips
and on miscalculation of the volume of the market.
The applicants add that the fact that the Commission appraised the effects of the concentration on the market for the production
of large pipes without taking account of the situation in the market for small pipes is all the more surprising in that, when
appraising the pipe distribution market (paragraphs 18 to 20 of the EC decision), the Commission did not distinguish between
trade in large pipes and that in small pipes, although such a distinction was essential in so far as the production and distribution
of pipes coexist in the same market. They also consider that, in the EC decision, the Commission was wrong to treat pipe distribution
as an independent reference market to be distinguished from the pipe production market on the basis of its previous decision of 7April 1999 declaring a concentration compatible with the common market (Case IV/M.1369
─ Thyssen/Mannesmann, mentioned in paragraph 18 of the EC decision).
The Commission, supported in this respect by the interveners, denies that it erred in its assessment of the effects of the
concentration at issue on the market for small pipes with longitudinal welding.
2.Findings of the Court
Regarding the horizontal effects of the concentration at issue on the market for small pipes with longitudinal welding, it
is sufficient to observe that, as the applicants themselves admitted in paragraph 70 of the application, the activities of
the parties to the concentration did not overlap in that market because only MRW operated in it through two of its subsidiaries,
Mannesmann Präzisrohr GmbH and Röhrenwerk Gebrüder Fuchs GmbH.
As for the vertical effects of the concentration at issue on the market for small pipes with longitudinal welding, it must
be observed that, as shown in paragraph 127 above, the parties to the concentration at issue had a share of less than 5% of
the upstream market of hot-rolled wide strips and the Commission could reasonably take the view that such effects could not
give rise to serious doubts as to the compatibility of the concentration at issue with the common market. Furthermore, it
must be borne in mind that, as appears from paragraph 132 et seq. above, the applicants are wrong in claiming that, with regard
to hot-rolled wide strips, the calculation of volume and the definition of the reference market accepted by the Commission
and the interveners are erroneous.
In addition, it is necessary to reject the applicants' argument that the exclusion of small pipes when appraising the effects
of the concentration on the pipe production market conflicts with the fact that, in the appraisal of the pipe distribution
market in paragraphs 18 to 20 of the EC decision, the Commission did not distinguish between trade in large pipes and trade
in small pipes.
This argument is based on the erroneous premiss that pipe production and pipe distribution constitute one and the same market
and are therefore subject to the same considerations regarding the definition of narrower markets. The Commission pointed
out that, in past decisions and, in particular, in paragraph 7 of decision IV/M.1369, cited in paragraph 153 above, it found
that the pipe production market constituted a separate market from the pipe distribution market because of the different customer
structure, differences in the quantities sold and the difference in the ability to react to customers' wishes. In answer to
this, the applicants put forward no effective argument to show that this finding was mistaken. In this connection, the mere
fact that, as the applicants contend, the pipe distributor sells the same product as the pipe producer does not prove that
pipe production and pipe distribution constitute a single market.
In view of the foregoing, it must be found that the Commission did not commit a manifest error of assessment in finding that
the effects of the concentration at issue on the market for small pipes with longitudinal welding could not give rise to serious
doubts as to the compatibility of the concentration with the common market.
Consequently this plea must be dismissed.
C ─
Plea relating to failure to take account of the links between Salzgitter and various other undertakings that resulted from
the concentration at issue
1.Arguments of the parties
In essence, the applicants contend that the Commission erred in its assessment in so far as, when examining the notified concentration,
it omitted to investigate, with reference to Article 81 EC and Article 2 of Regulation No 4064/89, the harmful consequences
for competition of the corporate ties between Salzgitter and other undertakings resulting from the concentration at issue.
In particular, the applicants refer to the fact that, as a result of the operation, first, Salzgitter controls, jointly with
Usinor/DH, the joint venture Europipe, which produces large welded pipes from quarto plates and hot-rolled wide strips, and,
secondly, Salzgitter controls, jointly with Thyssen/TKS, the joint venture HKM which produces crude steel, slabs and quarto
plates. The applicants consider that under Article 81 the Commission must take account of the relationships between the parties
concerned and must investigate the relevant consequences for competition in each of the markets in question. Furthermore,
according to the applicants, the Commission has an obligation, when investigating concentrations, to take account of the degree
of the potential risk to effective competition arising from the fact that competing producers form a joint venture in view
of their common interests, which may affect their trading practices in spheres of joint or related activities.
The Commission, supported by the interveners, considers this plea unfounded (defence, paragraphs 54 to 75; statement in intervention,
paragraphs 32 to 35; report for the hearing, paragraphs 96 to 108).
2.Findings of the Court
Through the concentration at issue Salzgitter acquired control of MRW which, in turn, had joint control, with DH which forms
part of the Usinor group, of Europipe. As is apparent from paragraph 30 of the EC decision Europipe is the world leader in
the production of large pipes with longitudinal welding and spiral welding.
In addition, as appears from paragraph 6 of the EC decision, Salzgitter also acquired indirectly joint control of HKM by taking
control of MRW. Before the concentration at issue, MRW already held directly 20% and indirectly 30% of the shares of HKM through
Vallourec & Mannesmann Tubes, of which it has joint control. Salzgitter now shares control with TKS, which is part of the
Thyssen group. HKM produces mainly semi-finished products.
It follows that, by means of joint control of Europipe and HKM, the concentration at issue has had the effect of creating
indirect links between Salzgitter and, respectively, Usinor/DH and Thyssen/TKS.
Therefore it is necessary to establish whether, as the applicants claim, the Commission erred in its assessment in so far
as it omitted to appraise the consequences of those indirect links in relation to Article 81 EC and Article 2 of Regulation
No 4064/89.
a) Assessment by reference to Article 81 EC
The applicants contend that the Commission neglected to take account, by reference to Article 81 EC, of the fact that, as
a result of the indirect acquisition of joint control of Europipe and HKM, there is a risk that the parent companies of those
joint ventures will coordinate their activities in the markets where the joint ventures operate or in associated markets.
However, it must be observed that, as the Commission rightly points out, the concentration was notified on 1 August 2000 on
the basis of Article 4 of Regulation No 4064/89 and not on the basis of Article 81 EC.
It is true that, as mentioned in paragraph 76 above, according to settled case-law, the Commission must in principle avoid
inconsistency which may arise in the implementation of different provisions of Community law (see the judgments in the cased
of
Matra
v
Commission,
cited in paragraph 61 above, paragraphs 41 to 47, and
DIR International Film and Others
v
Commission
, cited in paragraph 61 above, paragraphs 21 and 30), and that the Court of First Instance has inferred from this principle
that, in adopting a decision on the compatibility with the common market of a concentration between undertakings, the Commission
cannot ignore the consequences which the grant of State aid to those undertakings has on the maintenance of effective competition
in the relevant market (
RJB Mining
v
Commission
, cited in paragraph 61 above, paragraph 114). According to the applicants, it follows from this case-law that the Commission
has the same obligation if, when assessing the compatibility of a concentration with the common market, it is informed of
the existence of a cartel binding one of the parties to the concentration.
However, it must be noted that, in the present case, the Commission had no information on the existence of such a cartel and
the applicants have not shown, or even asserted, that the parties to the concentration had concluded restrictive agreements
with Usinor and/or Thyssen. The latter merely refer to the risk that, by virtue of their participation in Europipe and HKM,
those companies may be tempted to act in that way. However, it is clear that, when assessing the compatibility of a notified
concentration with the common market, the Commission cannot be obliged, under Article 81 EC, to consider the hypothetical
risk that the parties to the concentration may be required to conclude such restrictive agreements as a result of the concentration.
According to the clear wording of Article 81(1) EC, the prohibition which it lays down applies only when anti-competitive
agreements have actually been concluded. Furthermore, it has consistently been held that the appraisal by the Commission of
the compatibility of a concentration with the common market must be carried out solely on the basis of matters of fact and
law existing at the time of notification of that transaction, and not on the basis of hypothetical factors, the economic implications
of which cannot be assessed at the time when the decision is adopted (
Air France
v
Commission
, cited in paragraph 41 above, paragraph 70).
It follows from the foregoing that the Commission had no obligation to assess the consequences, if any, of the indirect links
between Salzgitter and various other undertakings by reference to the prohibition laid down by Article 81(1) EC and therefore
the Commission made no error of assessment in that respect.
b) Assessment by reference to Article 2 of Regulation No 4064/89
The applicants allege that the Commission failed to take account, by reference to Article 2 of Regulation No 4064/89, of the
degree of potential risk to effective competition arising from the fact that competing producers may take part in a joint
venture in view of common interests which may affect their trading practices in spheres of joint or related activities.
On this point it must be stressed that, generally, it cannot be ruled out that indirect links such as those called into question
by the applicants in this case may affect the competition behaviour of undertakings connected in that way in certain markets.
In exercising joint control of a joint venture, the parent companies will necessarily have to agree on the commercial management
of the venture and, to some extent, on their own positions in relation to the joint venture in certain markets.
It follows that the existence of such indirect links of a financial and structural nature is a factor which must be taken
into account when assessing a concentration by reference to the conditions laid down in Article 2(2) and (3) of Regulation
No 4064/89 (see, to that effect, in relation to collective dominant positions, the judgment in
Gencor
v
Commission
, cited in paragraph 105 above, paragraph 277 et seq.).
However, in the present case it has not been shown that the indirect links referred to by the applicants between Salzgitter
and various other undertakings were likely to give rise to serious doubts as to the compatibility of the concentration at
issue with the common market.
The applicants have produced no evidence to show that the existence of indirect links between Salzgitter and Thyssen/TKS arising
from control of the joint venture HKM was capable of having any effect whatever on the markets for slabs, quarto plates and
hot-rolled wide strips and, therefore, of raising serious doubts as to the compatibility of the concentration at issue with
the common market. As the Commission rightly points out, that cannot have been the case here because, at the date of notification,
HKM was not producing quarto plates or hot-rolled wide strips and was not selling slabs to third parties.
Likewise the applicants have produced no evidence to show that the existence of indirect links between Salzgitter and Usinor/DH
arising from control of the joint venture Europipe was capable of having any effect whatever on the markets for quarto plates
and hot-rolled wide strips and, therefore, of raising serious doubts as to the compatibility of the concentration at issue
with the common market. As the Commission points out, that can hardly have been the case here because the shares of the parties
to the concentration in those markets were very small.
In addition, it must be observed that, in response to the doubts expressed by third parties who feared that, because of the
links between Salzgitter and Usinor/DH arising from the concentration at issue, they might be tempted to limit their supplies
of quarto plates to competitors of Europipe, the Commission set out, in paragraphs 20 to 22 of the ECSC decision, the reasons
why it considered that those links could not possibly have any such effect. First, it pointed out that, as Salzgitter's deliveries
of quarto plates in 1999 were only 33 000 tonnes, the complete withdrawal of that company would not have a noticeable effect
on the market for quarto plates in any case and/or on the (narrower) market for quarto plates intended for the production
of large pipes with longitudinal welding. Second, the Commission observed that, although Usinor/DH already had joint control
of Europipe before the concentration at issue, that company had continued to supply quarto plates to pipe producers competing
with Europipe. Furthermore, if Usinor/DH stopped supplying those producers, that would have the effect of increasing the production
costs of quarto plates and, thereby, damaging Europipe's competitiveness. Consequently, there was no need to fear that Usinor/DH
would act in that way. Third, the Commission pointed out that plate production capacity in Europe is largely under-used, so
that other producers of quarto plates for the production of pipes could supply quarto plates to pipe producers previously
supplied by Salzgitter. Finally, the Commission noted that there were no obstacles to entry which would prevent plate producers
from switching to the production of quarto plates.
These various reasons, which are not disputed by the applicants and which form part of the context of the EC decision (see
paragraph 123 above), show clearly and unambiguously that the links between Salzgitter and Usinor/DH arising from the concentration
at issue could not, in any case, have the disastrous vertical effects attributed to them by the applicants.
Therefore it must be concluded that the Commission did not commit a manifest error of assessment in finding that the links
between Salzgitter and various other undertakings could not give rise to doubts concerning the compatibility of the concentration
at issue with the common market.
c) Conclusion
In view of the foregoing, the present plea must be dismissed as unfounded.
D ─
Plea of breach of the obligation to state reasons
1.Arguments of the parties
The applicants submit that, when adopting the EC decision, the Commission breached its obligation to state reasons in so far
as it gave no reasons for its appraisal of the vertical effects of the concentration at issue on the markets for large welded
pipes and of the horizontal and vertical effects of the concentration on the markets for small pipes with longitudinal welding.
In addition, the applicants consider that the Commission breached its obligation to state reasons in so far as the EC decision
contains no reasons regarding its assessment of the effects of the links between Salzgitter and various other undertakings.
The Commission, supported on this point by the interveners, denies that it breached its obligation to state reasons when adopting
the EC decision.
2.Findings of the Court
It has consistently been held that the statement of reasons required by Article 253 EC must be appropriate to the act at issue
and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in
question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent
Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the
circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the
interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in
obtaining explanations (see Case C-367/95 P
Commission
v
Sytraval and Brink's France
[1998] ECR I-1719, paragraph 63, and the judgments cited there).
It follows that, when the Commission declares a concentration compatible with the common market on the basis of Article 6(1)(b)
of Regulation No 4064/89, it is a necessary and sufficient condition in relation to the duty to state reasons that the decision
states clearly and unequivocally the reasons why the Commission considers that the concentration at issue does not raise serious
doubts as to its compatibility with the common market. However, contrary to what the applicants suggest, it cannot be inferred
from that obligation that, in such a hypothetical case, the Commission must provide reasons for its assessment of all the
matters of law and of fact which may be connected with the notified concentration and/or which were raised during the administrative
procedure (see, to that effect, the judgment in the case of
Air France
v
Commission
, cited in paragraph 41 above, paragraph 92).
Not only is such a requirement difficult to reconcile with the need for promptness on the Commission's part when it exercises
its power to examine concentrations and, in particular, when it approves a concentration on the basis of Article 6(1)(b) of
Regulation No 4064/89, but, in addition, such a requirement is difficult to justify from the viewpoint of the very nature
of that power. It must be observed that, in the framework of the system established by Regulation No 4064/89, the Commission
is obliged to assess, using a prospective analysis of the reference markets, whether the concentration which has been referred
to it creates or strengthens a dominant position with the consequence that effective competition is significantly impeded
in the common market or a substantial part thereof. Such a procedure requires that there be a close examination in particular
of the circumstances which, in each individual case, are relevant for assessing the effects of the concentration on competition
in the reference markets (see the judgment in
Air France and Others
v
Commission
, cited in paragraph 105, paragraph 222). It follows that, if a concentration does not modify, or modifies only to a very
limited extent, the competition situation in a given market, the Commission cannot be required to set out specific reasoning
on that point. Likewise, the Commission does not fail in its duty to state reasons if, in its decision, it does not include
specific reasons concerning the assessment of a number of aspects of the concentration which seem to it manifestly irrelevant
or insignificant or plainly of secondary importance for the assessment of the concentration (see, to that effect, the judgment
in the case of
Sytraval and Brink's France
, cited in paragraph 184 above, paragraph 64).
It follows from the foregoing that the mere fact that a decision declaring a concentration compatible with the common market
on the basis of Article 6(1)(b) of Regulation No 4064/89 does not give reasons in relation to some matters of fact or of law
does not mean, as such, that the Commission failed in its duty to state reasons when it adopted that decision (see, to that
effect, the judgments in
Air France
v
Commission
, cited in paragraph 41 above, paragraph 92, and
Kaysersberg
v
Commission
, cited in paragraph 123 above, paragraph 150). The absence of reasons may also be interpreted as meaning that, in the Commission's
opinion, those matters cannot raise serious doubts as to the compatibility of the concentration at issue with the common market.
It is necessary to determine, in the light of those principles, whether, as the applicants submit, the Commission failed in
its obligation to state reasons by not including in the EC decision explicit reasons regarding its appraisal of the vertical
effects of the concentration at issue on the markets for large welded pipes and its horizontal and vertical effects on the
market for small pipes with longitudinal welding, and its appraisal of the links between Salzgitter and various other undertakings.
On this point the Court finds that, as is clear from its examination of the different pleas relating to alleged errors of
assessment, the Commission set out clearly and unequivocally in the EC decision the reasons why it considered that the concentration
at issue did not raise serious doubts as to its compatibility with the common market.
Although the EC decision gives no reasons for the Commission's appraisal of the vertical effects of the concentration at issue
on the market for large welded pipes, it must nevertheless be observed that, as found in paragraph 117 et seq. above, mainly
by reason of the parties' very small shares of the upstream markets for hot-rolled wide strips and quarto plates, those factors
could not raise serious doubts as to the compatibility of the concentration at issue with the common market.
Moreover, in response to the submissions of EBM and Ferndorf during the administrative procedure, the Commission set out,
in paragraphs 20 to 22 of the ECSC decision, which form part of the context of the EC decision (see paragraph 123 above),
the reasons why it considered that the concentration at issue did not have the effect of threatening the supply of quarto
plates for undertakings competing with the parties to the concentration on the downstream market for large pipes with longitudinal
welding. Furthermore, in paragraph 23, the Commission took note of Salzgitter's declaration of non-discrimination, which sought
to respond to the concerns of independent producers of pipes with regard to their raw material supplies from Salzgitter.
Accordingly the Commission did not breach its obligation to state reasons regarding the vertical effects of the concentration
at issue on the market for large welded pipes.
Likewise it must be concluded that the Commission did not fail to fulfil its obligation to state reasons by not including
in its decision reasons for, first, its appraisal of the horizontal and vertical effects of the concentration at issue on
the market for small pipes and, second, its appraisal of the links between Salzgitter and various other undertakings. As found
in paragraphs 155 et seq. and 163 et seq. above, those factors could not give rise to serious doubts as to the compatibility
of the concentration at issue with the common market. Furthermore, it must be noted that during the administrative procedure
neither EBM nor Ferndorf raised any objections in that respect.
In view of the foregoing, this plea must be dismissed.
E ─
Plea that the adoption of separate decisions was illegal
1.Arguments of the parties
On the basis of the arguments summarised in paragraph 59 et seq. above, the applicants submit that it was illegal for the
Commission to adopt two separate decisions to authorise the concentration at issue.
The Commission rejects the applicants' arguments in their entirety.
2.Findings of the Court
As is clear from paragraph 67 et seq. above, it was not illegal for the Commission to adopt separate decisions to authorise
the concentration at issue. Therefore this plea must be dismissed.
F ─
Application for production of documents
1.Arguments of the parties
The applicants submit that Salzgitter and the Commission are not entitled to rely on material statements contained in the
notification of the concentration because neither the Court nor the applicants have had an opportunity to examine the document.
According to the applicants, the references to such material statements are inadmissible by virtue of the second paragraph
of Article 116(4)(c) of the Rules of Procedure. As a precaution, should the Court consider that such references are nevertheless
admissible, the applicants request the Court to order the Commission to produce the administrative file relating to the concentration
at issue for the purpose of taking evidence or, at least, to order the Commission to produce the notification(s) of the concentration.
The Commission considers it inexpedient for the Court to take such measures for the organisation of procedure in so far as,
irrespective of their legal basis, they form part of an action which, according to the Commission, is manifestly inadmissible.
2.Findings of the Court
First of all, it must be observed that the request for production of the notification of the concentration at issue has become
devoid of purpose because the Commission produced a copy of the notification, annexed to its letter of 16 December 2002, a
copy of which was sent to the applicants.
With regard to the request for production of the administrative file for the concentration at issue, although, as the applicants
claim, the Commission and the interveners cannot rely on documents to which neither the Court nor the applicants have had
access, it must be observed that this circumstance alone does not, as such, justify an order by the Court for the production
of documents on the basis of Article 64 of the Rules of Procedure. The Court may order such a measure for the organisation
of procedure only if the applicants make out a plausible case that the documents are necessary and relevant for the purposes
of judgment. In the present case the applicants have made no submissions at all to that effect. Moreover, not only do the
applicants not specify what they mean by
administrative file of the concentration, but the Commission and the interveners have never referred to any such file.
Consequently there are no grounds for granting the applicants' request for production of the administrative file.
Costs
Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
applied for in the successful party's pleadings. As the applicants have failed in their submissions, they must be ordered
to pay the costs, in accordance with the form of order sought by the Commission and the interveners.
On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber)
hereby:
1.
Declares the action inadmissible in so far as it seeks the annulment of decision COMP/ECSC.1336 of 14 September 2000;
2.
Declares the action admissible but unfounded in so far as it seeks the annulment of decision COMP/M.2045 of 5 September 2000;
3.
Orders the applicants to pay their own costs together with those of the Commission and those of Salzgitter and Mannesmann.
Lenaerts
Azizi
Jaeger
Delivered in open court in Luxembourg on 8 July 2003.
H. Jung
K. Lenaerts
Registrar
President
–
Language of the case: German.