# EUR-Lex - 61994A0156 - EN

Avis juridique important

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# 61994A0156

**Judgment of the Court of First Instance (Second Chamber, extended composition) of 11 March 1999. - Siderúrgica Aristrain Madrid SL v Commission of the European Communities. - ECSC Treaty - Competition - Agreements between undertakings, decisions by associations of undertakings and concerted practices - Price-fixing - Market sharing - Systems for the exchange of information. - Case T-156/94. **

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European Court reports 1999 Page II-00645 Pub.RJ Page Pub ext *

Summary
Parties
Grounds
Decision on costs
Operative part

## Keywords

1 Actions for annulment - Claims challenging the lawfulness of the ECSC Treaty - Inadmissible

(ECSC Treaty, Arts 33, 36, 65 and 66)

2 Community law - Principles - Fundamental rights - Observance ensured by the Community judicature - European Convention on Human Rights taken into consideration

(Treaty on European Union, Art. F(2))

3 ECSC - Agreements, decisions and concerted practices - Administrative proceedings - Observance of the rights of the defence - Procedural guarantees - Effective judicial review of Commission decisions - An `independent and impartial tribunal' - Unlimited jurisdiction

(ECSC Treaty, Arts 33, 36 and 65)

4 ECSC - Agreements, decisions and concerted practices - Prohibited - Infringement by a group and its subsidiaries - Difficulty in identifying the parent company - Subsidiaries may be held jointly and severally responsible

(ECSC Treaty, Art. 65(5))

5 ECSC - Agreements, decisions and concerted practices - Administrative proceedings - Rules governing languages - Annexes to the statement of objections - To be available in the original language

6 ECSC - Agreements, decisions and concerted practices - Administrative proceedings - Obligations of the Commission - Action to be taken within a reasonable time

(ECSC Treaty, Art. 65)

7 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Calculation methods - Conversion into ecus of the undertakings' reference year turnover figures on the basis of the average exchange rate for that year - Whether permissible

(ECSC Treaty, Art. 65(5))

8 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Mitigating circumstances - Conduct differing from that agreed by the cartel - Assessment

(ECSC Treaty, Art. 65(5))

9 ECSC - Agreements, decisions and concerted practices - Prohibited - Infringements - Committed intentionally - Meaning

(ECSC Treaty, Art. 65(1))

10 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Attitude of the undertaking during the administrative proceeding

(ECSC Treaty, Art. 65(5))

11 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Mitigating circumstances - Cessation of the infringement following the Commission's intervention - Not included

(ECSC Treaty, Art. 65(5))

12 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Cases in which the fine is fixed by the Community judicature - Unlimited jurisdiction

(ECSC Treaty, Art. 36, second para.)

Summary

1 Claims are inadmissible where they seek to challenge the lawfulness of the system introduced by Articles 65 and 66 of the ECSC Treaty for preventing and penalising agreements, decisions and concerted practices or of the system introduced by Articles 33 and 36 thereof for the judicial review of administrative acts.

## Summary

The Treaty itself is not an act of the Commission and it is not amenable, therefore, to review by the Community judicature under Articles 33 or 36.

2 Fundamental rights form an integral part of the general principles of law, the observance of which the Community judicature ensures. The Court of Justice and the Court of First Instance draw inspiration from the constitutional principles common to the Member States and also from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. In that context, the European Convention on Human Rights - to which reference is made in Article F(2) of the Treaty on European Union - has special significance.

3 During administrative proceedings which culminate in the adoption of a decision finding that the competition rules have been infringed and imposing a fine under the ECSC Treaty, the Commission is obliged to observe the procedural guarantees laid down by Community law. The fact that the Commission combines the functions of prosecutor and judge is not contrary to those safeguards and they do not require the Commission to adopt an internal arrangement under which an official is not permitted to act as both investigator and rapporteur in the same case.

The requirement of effective judicial review of any Commission decision establishing and penalising an infringement of the Community competition rules is a general principle of Community law which follows from the constitutional traditions common to the Member States. The unlimited jurisdiction of the Court of First Instance, an independent and impartial tribunal, to review the penalty, pursuant to Article 36 of the Treaty - in conjunction, where necessary, with a review of the legality of the other elements of the decision, pursuant to Article 33 of the Treaty - is consistent with that requirement.

4 In view of the fact that a parent group and its subsidiaries form one economic unit, the actions of the subsidiaries may be attributed to the parent company where, even though each of the subsidiaries has separate legal personality, they do not decide independently upon their own conduct on the market, but essentially apply the instructions given to them by the group, which plays a stimulating and coordinating role.

However, a situation may arise in which a group and its subsidiaries participate equally in various infringements and it is not possible to distinguish between the various components of the group according to the extent of their individual participation in those infringements. Also, owing to the family composition of the group and the dispersal of its shareholders, it may be impossible or exceedingly difficult to identify the legal person at its head to which, as the person responsible for coordinating the group's activities, responsibility may be imputed. In such cases, the Commission is entitled, for the purposes of applying the competition rules, to hold the subsidiaries jointly and severally responsible for all the acts of the group in order to ensure that the formal separation between those companies, resulting from their separate legal personality, cannot prevent a finding that they have acted jointly on the market.

5 In the context of the administrative proceeding culminating in the adoption of a decision finding that the ECSC competition rules have been infringed, the Commission cannot be required to translate more documents than those on which it bases its objections. These documents must also be regarded as incriminating documents on which the Commission relies and, accordingly, must be brought to the addressee's attention as they are, in such a way that the addressee is apprised of the interpretation which the Commission has put on them - and on which it has based both the statement of objections and the decision - and, consequently, is able properly to defend its rights.

6 The requirement that the Commission act within a reasonable time when adopting decisions following administrative proceedings relating to competition policy is a general principle of Community law. The reasonable nature of the duration of the administrative proceedings must be determined in relation to the particular circumstances of each case and, in particular, its context, the various procedural stages followed by the Commission, the conduct of the parties in the course of the procedure, the complexity of the case and its importance for the various parties involved.

7 When the Commission imposes fines on several undertakings for infringements of the ECSC competition rules, there is nothing to prevent it from expressing the amount in ecus, a monetary unity convertible into national currency. That also makes it easier for the undertakings to compare the amounts of the fines imposed.

In calculating the fine, the Commission may convert into ecus the turnover figure of each undertaking for the reference year, that is to say, the last complete year of the period of infringement found, on the basis of the average exchange rate for that year.

First of all, the Commission should ordinarily use one and the same method of calculating the fines imposed on the undertakings penalised for having participated in the same infringement. Second, in order to be able to compare the different turnover figures sent to it, which are expressed in the respective national currencies of the undertakings concerned, the Commission must convert those figures into a single monetary unit, such as the ecu, the value of which is determined on the basis of each national currency of the Member States.

Moreover, the taking into account of the turnover achieved by each undertaking during the reference year enables the Commission to assess the size and economic power of each undertaking and the scale of the infringement committed by each of them, those aspects being relevant for an assessment of the gravity of the infringement committed by each undertaking. Also, taking into account, in order to convert the turnover figures in question into ecus, the average exchange rates for the reference year adopted enables the Commission to prevent any monetary fluctuations occurring after the cessation of the infringement from affecting the assessment of the undertakings' relative size and economic power and the scale of the infringement committed by each of them and, accordingly, its assessment of the gravity of that infringement. That assessment must have regard to the economic reality as revealed at the time when the infringement was committed.

The method of calculating the fine by using the average rate of exchange for the reference year makes it possible to avoid the uncertain effects of changes in the real value of the national currencies which may arise between the reference year and the year in which the decision is adopted. Although this method may mean that a given undertaking must pay an amount, expressed in national currency, which is in nominal terms greater or less than that which it would have had to pay if the rate of exchange at the date of the decision's adoption had been applied, that is merely the logical consequence of fluctuations in the real values of the various national currencies.

8 The fact that an undertaking did not play a particularly active role or act as instigator does not excuse its participation in the infringement.

Furthermore, the fact that an undertaking found to have participated in an agreement on prices did not behave on the market in a manner consistent with that agreed with its competitors is not necessarily a matter which must be taken into account as a mitigating circumstance when determining the amount of the fine to be imposed. An undertaking which, despite colluding with its competitors, follows a more or less independent policy on the market may simply be trying to exploit the cartel for its own benefit.

9 It is not necessary for an undertaking to have been aware that it was infringing the prohibition prescribed in Article 65 of the Treaty for an infringement to be regarded as having been committed intentionally; it is sufficient that it could not have been unaware that the contested conduct tended to distort normal competition on the common market.

10 A reduction in the amount of the fine on grounds of cooperation during the administrative procedure is justified only if the conduct enabled the Commission to establish an infringement more easily and, where relevant, to bring it to an end.

11 The fact that a deliberate infringement of the competition rules has been brought to an end cannot be regarded as a mitigating circumstance where it was terminated as a result of the Commission's intervention.

12 By its nature, the fixing of a fine by the Court of First Instance in the exercise of its unlimited jurisdiction is not an arithmetically precise operation. Moreover, the Court is not bound by the Commission's calculations, but must carry out its own assessment, taking all the circumstances of the case into account.

Parties

In Case T-156/94,

## Parties

Siderúrgica Aristrain Madrid, SL, having its registered office in Madrid, represented by Antonio Creus and, initially, by Xavier Ruiz Calzado, and subsequently by Natalia Lacalle, both of the Barcelona Bar, with an address for service in Brussels at Cuatrecasas Chambers, Avenue d'Auderghem 78,

applicant,

v

Commission of the European Communities, represented initially by Julian Currall and Francisco Enrique González-Diaz, of its Legal Service, and Géraud Sajust de Bergues, a national civil servant on secondment to the Commission, and subsequently by Jean-Louis Dewost, Director-General of its Legal Service, Julian Currall and Guy Charrier, a national civil servant on secondment to the Commission, acting as Agents, assisted by Ricardo García Vicente, of the Madrid Bar, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, also of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the annulment of Commission Decision 94/215/ECSC of 16 February 1994 relating to a proceeding pursuant to Article 65 of the ECSC Treaty concerning agreements and concerted practices engaged in by European producers of beams (OJ 1994 L 116, p. 1),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

(Second Chamber, Extended Composition),

composed of: C.W. Bellamy, acting as President, A. Potocki and J. Pirrung, Judges,

Registrar: J. Palacio González, Administrator,

having regard to the written procedure and further to the hearing on 23, 24, 25, 26 and 27 March 1998,

gives the following

Judgment

Grounds

Facts giving rise to the action

## Grounds

A - Preliminary observations

1 The present action seeks the annulment of Commission Decision 94/215/ECSC of 16 February 1994 relating to a proceeding pursuant to Article 65 of the ECSC Treaty concerning agreements and concerted practices engaged in by European producers of beams (OJ 1994 L 116, p. 1, hereinafter `the Decision'), by which the Commission found that seventeen European steel undertakings and one of their trade associations had participated in a series of agreements, decisions and concerted practices designed to fix prices, share markets and exchange confidential information on the market for beams in the Community, in breach of Article 65(1) of the ECSC Treaty, and imposed fines on fourteen undertakings operating within that sector for infringements committed between 1 July 1988 and 31 December 1990.

2 According to the Decision, the applicant Siderúrgica Aristrain Madrid, SL (hereinafter `Aristrain Madrid'), formerly known as José Maria Aristrain Madrid, SA, and Siderúrgica Aristrain Olaberría, SL (hereinafter `Aristrain Olaberría'), formerly known as José Maria Aristrain, SA, are sister companies belonging to the Aristrain steel group (hereinafter `Aristrain'), the share capital of which is held by the Aristrain family.

...

D - The Decision

3 The Decision was received by the applicant under cover of a letter of 28 February 1994 from Mr Van Miert (`the Letter'). The applicant acknowledged receipt on 7 March 1994.

4 Although the Commission considered in the grounds of the Decision that two companies belonging to the Aristrain group, namely Aristrain Madrid and Aristrain Olaberría, had participated in the infringements in question, the Decision was addressed only to Aristrain Madrid; it contains the following operative part:

`Article 1

The following undertakings have participated, to the extent described in this Decision, in the anti-competitive practices listed under their names which prevented, restricted and distorted normal competition in the common market. Where fines are imposed, the duration of the infringement is given in months except in the case of the harmonisation of extras where participation in the infringement is indicated by "x".

...

Aristrain

(a) Exchange of confidential information through the Poutrelles Committee (24)

(b) Price fixing in the Poutrelles Committee (24)

(c) Market sharing, British Steel, Ensidesa and Aristrain (8)

(d) Harmonisation of extras (x)

...

Article 4

For the infringements described in Article 1 which took place after 30 June 1988 (31 December 1989 (1) in the case of Aristrain and Ensidesa) the following fines are imposed:

...

Siderúrgica Aristrain Madrid SLECU 10 600 000

...

...

Article 6

This Decision is addressed to:

...

- Siderúrgica Aristrain Madrid, SL

...'.

...

Claim for annulment of Article 1 of the Decision

...

A - Breach of the applicant's procedural rights

Breach of the right to an impartial tribunal

Summary of the applicant's arguments

5 The applicant claims that the Decision was adopted in breach of the fundamental right to an independent and impartial tribunal. This right, which has its origin in the principle of a `fair hearing', is enshrined in Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter `the ECHR') and more generally in the constitutional traditions common to the Member States to which Article 7(2) of the Treaty on European Union refers as a general principle of Community law.

6 The breach of this right results essentially from the fact that the procedure followed by the Commission does not confer the functions of investigation and decision-making on different organs or persons, although the Treaty makes no provision for an automatic appeal, of the type required by the ECHR, against decisions of the Commission.

7 The applicant begins by dismissing the objection that the Commission is not a `tribunal' within the literal meaning of Article 6 of the ECHR and to that extent is not required to comply with the requirements of that article, as the Court held in Joined Cases 209 to 215 and 218/78 Van Landewyck and Others v Commission [1980] ECR 3125 and Joined Cases 100/80, 101/80, 102/80 and 103/80 Musique Diffusion Française and Others v Commission [1983] ECR 1825, (hereinafter `the Pioneer judgment').

8 It is appropriate to opt for a `material' rather than a `formal' concept of the notion of `criminal charge' referred to in that article, in accordance with the case-law of the European Court of Human Rights (`European Court') (the Deweer v Belgium judgment of 27 February 1980, Series A No 35, pp. 23 to 24; the ztürk v Germany judgment of 21 February 1984, Series A No 73; the Engel and Others v Netherlands judgment of 8 June 1984, Series A No 22; the Campbell and Fell v United Kingdom judgment of 28 June 1984, Series A No 80, and the Funke v France, Crémieux v France and Miailhe v France judgments of 25 February 1993, Series A Nos 256-A to 256-C). Thus the fact that the penalties laid down in the ECSC and EC Treaties are not formally classified as criminal by `domestic' law - in this case Community law - does not preclude their being seen as such from a material aspect for the purposes of the ECHR.

9 The applicant thus claims that decisions of the European Commission of Human Rights (`European Commission') in the cases of SA Stenuit v France (Application No 15598/85, Decision of 11 July 1989, DR 61, pp. 131-137, paragraph 62) and M. & Co. v Germany, (Application No 13258/87, Decision of 9 February 1990, DR 64, pp. 138-146) have recognised that administrative penalties in competition law were criminal matters, taking into account, first, the fact that the provisions in question pursued an objective in the general interest and, second, the nature and severity of the administrative fine imposed.

10 In the present case the fines imposed by the Commission pursuant to Article 65 of the Treaty constitute one of the means of achieving the objectives of the Treaty and, in particular, of establishing a common market. They are also of a dissuasive and punitive nature, as may be seen from the press bulletin published by the Commission on 16 February 1994. They are also set at a particularly high level, since the sum of ECU 10.6 million represents 11.9% of the applicant's turnover, whereas in the case of SA Stenuit v France, cited above, the European Commission considered that a fine that might be 5% of the annual turnover of the offending undertakings showed `very clearly that the object of the penalty in question was dissuasive' (paragraph 62 of the decision). The fines are therefore in the nature of a criminal penalty for the purposes of Article 6(1) of the ECHR and the guarantees laid down in that provision are therefore applicable to the proceedings leading to their adoption.

11 The applicant then refers to a number of judgments of the European Court, namely the Piersack v Belgium judgment of 1 October 1982, Series A No 53; the Albert and Le Compte v Belgium judgment of 10 February 1983, Series A No 58; the De Cubber v Belgium judgment of 26 October 1984, Series A No 86; and the Hauschildt v Denmark judgment of 24 May 1989, Series A No 154, and observes that in cases of a `criminal' nature involving an administrative organ, the procedural systems that conform with Article 6 of the ECHR are those in which the investigation stage is separate from that of the decision, or at least those which provide for subsequent review by a tribunal with unlimited jurisdiction to review all questions of fact and of law and also the discretion of the administrative organ concerned (see also the Obermeier v Austria judgment of the European Court of 28 June 1990, Series A No 179).

12 However, the Commission adopted the Decision by assuming both the investigative power and the decision-making power, exercised by the same persons, and the Decision cannot form the subject-matter of an appeal to a tribunal with unlimited jurisdiction within the meaning of the case-law of the European Court.

13 The applicant considers, first, that a system which confers investigative and decision-making powers on the same administrative body does not offer sufficient guarantees to be described as impartial from an objective and practical point of view.

14 In order to establish the absence in Community competition law of an appeal to a tribunal with unlimited jurisdiction, the applicant relies, first, on the reference in Article 36 of the ECSC Treaty to Article 33 and, second, on a consistent line of decisions in which it has been held that in evaluating a complex situation the Commission has a wide discretion, so that where the Court reviews the conditions under which that type of power has been exercised it merely ascertains that the procedural rules have been observed, that the statement of reasons is sufficient, that the facts are correct and that there is no manifest error of assessment or misuse of powers. The applicant relies in that regard on Case 13/60 Geitling Ruhrkohlen-Verkaufsgesellschaft and Others v High Authority [1962] ECR 83, Case 55/75 Balkan-Import Export v Hauptzollamt Berlin-Packhof [1976] ECR 19 and Case 42/84 Remia v Commission [1985] ECR 2545. The applicant also refers to paragraph 23 of Case C-225/91 Matra v Commission [1993] ECR I-3203, where the Court stated that it could not `substitute its own assessment of the facts, especially in the economic sphere, for that of the author of the decision'. In that regard, the applicant also refers to Case T-30/89 Hilti v Commission [1991] ECR II-1439, paragraph 136, and to Joined Cases T-68/89, T-77/89 and T-78/89 SIV and Others v Commission [1992] ECR II-1403, where the Court of First Instance considered that it had no jurisdiction to remake the contested decision and that it was not for it to carry out a comprehensive re-assessment of the evidence before it or to draw conclusions from that evidence in the light of the rules on competition. The applicant claims that a tribunal which genuinely reviews questions of fact and of law, and the discretionary power of the administration, would find no difficulty in assessing the reality of the case, namely the reasons for which the Commission had imposed such a large fine.

15 That is so despite the wording of Article 36 of the Treaty. On the one hand, the Court held in its judgment in Case 8/56 ALMA v High Authority [1957 and 1958] ECR 95 that it could only control and review the penalty in the context of the Treaty where the High Authority had committed a `manifest injustice'. The Commission thus has significant freedom in determining the amount of fines, without the Court being able to review the precise reasons for which a given amount has been imposed (see also the Opinion of Advocate General Warner in Joined Cases 32/78 and 36/78 to 82/78 BMW Belgium and Others v Commission [1979] ECR 2435, at p. 2484, and the Opinion of Judge Vesterdorf, acting as Advocate General, in Case T-1/89 Rhône-Poulenc and Others v Commission [1991] ECR II-867, II-869, II-1026 - the Opinion common to the `polypropylene' judgments in Cases T-2/89, T-3-89, [1991] ECR II-1087, II-1177, Cases T-4/89, T-6/89, T-7/89, T-8/89 [1991] ECR II-1523, II-1623, II-1711, II-1833, and Cases T-9/89 to T-15/89 [1992] ECR II-499, II-629, II-757, II-907, II-1021, II-1155 and II-1275). Second, the Court's unlimited jurisdiction in the appeals referred to in Article 36 of the Treaty does not extend to all the elements of the contested decision, since the sole purpose of such an appeal is to secure an amendment of the economic penalty imposed. The Court's jurisdiction to review the other elements, such as the legal basis of the penalty, can only be exercised in the manner set out in Article 33 of the Treaty.

16 The applicant further claims that, regard being had to the new perspective opened in Community law by the Treaty on European Union, which provides in Article F(2) that that the Union is to take account of the constitutional traditions of the Member States as general principles of Community law, in the present case the Court should not assess the Decision merely in the light of Article 6(1) of the ECHR.

17 In that regard, the applicant claims that the procedural guarantees provided for in the legal orders of the Member States in relation to administrative penalties, and more particularly in competition matters, are significantly higher than that resulting from the `de minimis' interpretation of the right to an independent tribunal accepted by the European Court. As a general rule the Member States provide that fines for breach of competition law are to be imposed by a different organ from that carrying out the investigation and, moreover, they all provide, in the subsequent stages of the proceedings, for an appeal to the ordinary courts, which have jurisdiction to deal with all aspects of the case, as required by Article 6 of the ECHR. In that regard, the applicant refers to French law, Greek law, Belgian law, Portuguese law, Spanish law, Danish law, German law and Italian law, and observes that in the United Kingdom, Ireland and the Netherlands the law makes no provision for such fines. Consequently, even if the Court should take the view that the adoption of the Decision by the Commission does not constitute a breach of the right to an impartial tribunal according to the criteria laid down by the European Court, the applicant concludes that in any event it constitutes a breach of the fundamental right to an impartial tribunal as defined by the constitutional traditions of the Member States, which are reflected in their procedures for the application of competition law.

18 It follows, according to the applicant, that the Decision was adopted in breach of human rights, respect for which the Court ensures (see, for example, Case 29/69 Stauder v Ulm [1969] ECR 419, Case C-260/89 ERT [1991] ECR I-2925, and Case 374/87 Orkem v Commission [1989] ECR 3283).

Findings of the Court

19 The present complaint must be rejected as inadmissible in so far as it seeks to call in question the legality of the system for penalising agreements established by Articles 65 and 66 of the Treaty, or again the legality of the system of judicial review of acts of the administration established by Articles 33 and 36 of the Treaty.

20 The Treaty itself is not an act of the Commission and is therefore not amenable to review by the Community judicature pursuant to Article 33 or Article 36 of the Treaty (see, for the Treaty on European Union, the order in Case C-253/94 P Roujansky v Council [1995] ECR I-7, paragraph 11).

21 It is the Treaty itself that provides that, for the purposes of proceedings relating to agreements, decisions and concerted practices, the functions of investigator, prosecutor and decision-taker are to be combined in single institution, the Commission (see Article 65(1) to (5)).

22 Since the applicant has none the less maintained that the purpose of its complaint was not to challenge the legality of the Treaty, it must be considered that by its complaint it seeks to call in question that fact that, for the purposes of proceedings relating to agreements, decisions or concerted practices, the functions of investigator and decision-taker are not conferred on separate persons or organs within the Commission, not the fact that the same Community institution exercises both functions.

23 In that regard, while it is true that the Community has not acceded to the ECHR and that, moreover, it is not competent to do so as Community law now stands (Opinion 2/94 [1996] ECR I-1759, paragraph 36), the fact none the less remains that, pursuant to Article F(2) of the Treaty on European Union, the Union must respect fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, as general principles of Community law.

24 It also follows from a consistent line of decisions (see, in addition to Opinion 2/94, paragraph 33, the judgments in Case C-177/94 Perfili [1996] ECR I-161, paragraph 20, and Case C-309/96 Annibaldi v Sindaco del Comune di Guidonia and Presidente Regione Lazio [1997] ECR I-7493, paragraph 12), that fundamental rights form an integral part of the general principles of law, the observance of which the Community judicature ensures. For that purpose, the Court of Justice and the Court of First Instance draw inspiration from the constitutional traditions principles common to the Member States and also from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. In that context, the Court of Justice has stated that the ECHR has special significance (Case 222/84 Johnston [1986] ECR 1651, paragraph 18, and Case C-299/95 Kremzow v Austria [1997] ECR I-2629, paragraph 14). As the Court has also stated, it follows that the Community cannot accept measures which are incompatible with observance of the human rights thus recognised and guaranteed Community (see, in particular, ERT, cited above, paragraph 41).

25 Furthermore, during the administrative proceedings before the Commission the latter is obliged to observe the procedural guarantees laid down by Community law (see Case T-11/89 Shell v Commission [1992] ECR II-757, paragraph 39).

26 It follows from the Pioneer judgment, cited above (paragraphs 6 to 8), however, that the fact that the Commission combines the functions of prosecutor and judge is not contrary to the procedural safeguards provided for by Community law. It likewise follows from Shell v Commission, cited above (paragraph 40), that these procedural guarantees do not require the Commission to adopt an internal organisation precluding the same official from acting as investigator and rapporteur in the same case.

27 Having regard to the foregoing, and even supposing that fines imposed under Article 65 of the Treaty have the nature of penal fines, the applicant's complaint can be upheld only if the Commission's decisions imposing those fines cannot form the subject-matter of an appeal to a judicial authority with unlimited jurisdiction, within the meaning of the ECHR.

28 In that regard, it should be pointed out that Article 65(5) of the Treaty empowers the Commission to impose on undertakings which have infringed Article 65(1) fines and periodic penalty payments equal to twice the turnover on the products to which the infringement relates and that, where the purpose of the infringement is to restrict production, technical development or investment, the maximum thus determined may be raised to 10% of the annual turnover of the undertakings in question in the case of fines and 20% of daily turnover in the case of periodic penalty payments.

29 The requirement of effective judicial review of any decision of the Commission establishing and penalising an infringement of the Community competition rules mentioned above is a general principle of Community law which follows from the constitutional traditions common to the Member States (see, in that regard, Case T-186/94 Guérin Automobiles v Commission [1995] ECR II-1753, paragraph 23).

30 There has been no breach of that general principle of Community law in the present case.

31 First, the Court of First Instance is an independent and impartial tribunal, set up by Council Decision 89/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1, corrigenda in OJ 1989 L 241, p. 4). As may be seen from the fourth recital in the preamble to that decision, the Court was set up, inter alia, in order to improve the judicial protection of individual interests in actions requiring close examination of complex facts.

32 Second, pursuant to Article 3(1)(b) of that decision the Court of First Instance exercises the powers conferred on the Court of Justice by the Treaties establishing the Communities and by the acts adopted in implementation thereof `in actions brought ... pursuant of the second paragraph of Article 33 ... of the ECSC Treaty'.

33 Third, Article 4 of that decision provides that Article 36 of the ECSC Treaty, which states in its second paragraph that `[t]he Court shall have unlimited jurisdiction in appeals against pecuniary sanctions and periodic penalty payments imposed under this Treaty', is to apply to proceedings before the Court of First Instance.

34 In an action based on the second paragraph of Article 33 and the second paragraph of Article 36 of the ECSC Treaty, review of the legality of a decision of the Commission establishing an infringement of the competition rules and imposing a fine in that respect on the natural or legal person concerned must be regarded as an effective judicial review of the measure in question. The pleas on which the natural or legal person concerned may rely in support of the application for annulment or amendment of a pecuniary penalty are of such a kind as to enable the Court to assess the correctness both in law and in fact of any accusation made by the Commission in the field of competition (see, in the context of the EC Treaty, Case T-348/94 Enso Española v Commission [1998] ECR II-1875, paragraph 63).

35 In that regard, it is necessary to reject the applicant's argument that the absence of an appeal in which the Court has unlimited jurisdiction may be inferred from the reference in Article 36, third paragraph, of the Treaty to Article 33, first paragraph. In providing that `in support [of an appeal against pecuniary sanctions and periodic penalty payments in which the Court has unlimited jurisdiction], a party may, under the same conditions as in the first paragraph of Article 33 of this Treaty, contest the legality of the decision or recommendation which that party is alleged not to have observed', Article 36, third paragraph, of the Treaty does not in any way have the effect of limiting the pleas that may be raised in an appeal in which the Court has unlimited jurisdiction solely to those which are admissible in an action for annulment, but only of organising the conditions in which an objection of illegality may be raised in support of such an action.

36 Contrary to what the applicant asserts, moreover, the Court of Justice did not hold in ALMA v High Authority, cited above, that it could control and review the penalty only where the High Authority had committed a `manifest injustice'. The Court observed (p. 99) that the action before it was one in which it had unlimited jurisdiction (second paragraph of Article 36 of the Treaty); accordingly, it was `empowered not only to annul but also to amend the decision which [had] been adopted', and it went on to say that `even in the absence of any formal submission, the Court is authorised to reduce the amount of an excessive fine'. The Court then held (p. 100) that the amount of the fine was not excessive in the particular case, having regard to the gravity of the offence and the applicant's financial situation, and concluded that `no manifest injustice [had] been established and the Court [did] not intend to substitute its assessment for that of the High Authority'.

37 The applicant's alternative argument, to the effect that the sole object of the control exercised in an action in which the Court has unlimited jurisdiction referred to in Article 36 of the Treaty was to amend the economic penalty imposed, and did not extend to the other elements of the contested decision, such as the legal basis of the penalty, which remains subject only to the control of legality referred to in Article 33 of the Treaty, must also be rejected.

38 First, it is not open to dispute that the penalty itself may form the subject-matter of an appeal in which the Court has unlimited jurisdiction, pursuant to Article 36 of the Treaty.

39 Second, the Court considers that its unlimited jurisdiction to review the penalty, pursuant to Article 36 of the Treaty, in conjuction, where necessary, with a review of the legality of the other elements of the decision, pursuant to Article 33 of the Treaty, is consistent with the principle enshrined in Article 6 (1) of the ECHR. In addition to the unlimited jurisdiction exercised pursuant to Article 36 of the Treaty, Article 33 thereof empowers the Community judicature, in reviewing errors of law and of fact, to carry out an exhaustive examination of the legality of the decisions referred to it. That is particularly true in the case of the control exercised in practice of the accuracy and relevance of the facts established by the Commission.

40 It should further be pointed out that the Report of the French Delegation on the Treaty establishing the European Coal and Steel Community and the Convention on the Transitional Provisions signed in Paris on 18 April 1951 (Paris, Ministry of Foreign Affairs, October 1951, p. 41), states, in regard to appeals provided for by the Treaty in relation to pecuniary penalties in which the Court has unlimited jurisdiction, that `special safeguards had to be provided for the persons concerned, and the normal rules governing actions for annulment were not appropriate. It is for that reason that provision was made for an appeal in which the Court has unlimited jurisdiction not only to appraise the facts but also to cancel or amend the fine as it sees fit'.

41 The applicant's argument that the national procedural systems in competition matters now offer guarantees which are wider than the `de minimis' protection provided by Article 6 of the ECHR, and which the Court must take into account as constitutional traditions common to the Member States, must be rejected as unfounded, since, as the Commission observes, the Community system in this regard is merely a variant of a number of national systems, which in any event were overtly inspired by it.

42 In the light of all the foregoing, the plea must be rejected as unfounded, without there being any need to adjudicate on whether fines imposed under Article 65 of the Treaty are in the nature of penal sanctions for the purposes of the ECHR.

The imputation of the alleged infringements solely to, and the imposition of a fine solely on, the applicant

Summary of the parties' arguments

43 The applicant claims that, although it is the only addressee of the Decision (see recital 323), the fine imposed on it took into account not only its conduct and turnover but also the conduct and turnover of its sister company, Aristrain Olaberría (see paragraph 2 above), which is contrary to Article 65(5) of the Treaty.

44 In proceeding thus the Commission imputed to the applicant the conduct of a sister company, which is legally independent and bears sole responsibility for its commercial activity. The applicant refers to the case-law of the Court of Justice in relation to liability within a group of companies (Case 48/69 ICI v Commission [1972] ECR 619 and BMW Belgium and Others v Commission, cited above) and considers that one subsidiary of a group of companies cannot be held liable for infringements allegedly committed by another subsidiary of the same group.

45 The applicant points out that throughout the administrative procedure, and in particular in the statement of objections, the Commission referred either to the Aristrain group as such or to Aristrain Madrid and Aristrain Olaberría as two separate undertakings within the group. Furthermore, the statement of objections and the summons to attend the hearing were sent to the two companies separately. By regarding Aristrain Madrid as the sole addressee of the Decision the Commission therefore deliberately limited the effects of the Decision to that undertaking and was thus not entitled to take Aristrain Olaberría's conduct and turnover into consideration when determining the amount of the fine.

46 The applicant further claims that the Commission's argument based on the fact that the two companies of the Aristrain group were jointly represented and defended during the administrative procedure contradicts the most elementary procedural rules, since such joint representation does not imply that the defendants are one and the same person.

47 The Commission was therefore wrong to impose on Aristrain Madrid alone a fine amounting to 11.9% of its turnover for 1993, which exceeded both the ceiling of 10% provided for in Article 65(5) of the Treaty and the maximum of 7.5% referred to by the Member of the Commission, Mr Van Miert, at the press conference on 16 February 1994.

48 The Commission claims that the applicant's argument fails to take account of the Community case-law pursuant to which it is the economic unit that is held liable for infringements of competition law, even though from a legal point of view that economic unit is composed of a number of companies (ICI v Commission, cited above, and Case 170/83 Hydrotherm v Compact [1984] ECR 2999), unless it is shown that one of the companies is exclusively responsible for the alleged infringements (BMW Belgium and Others v Commission). Throughout the Decision the Commission maintained an approach consistent with that case-law by regarding the `Aristrain group', composed of Aristrain Madrid and Aristrain Olaberría, as one economic unit (see recital 16(b) and Article 1 of the operative part of the Decision).

49 The Commission points out that on the applicant's own admission Aristrain Olaberría `always [acted] within a group' (see paragraph 131 of the application) and that there was joint representation and defence of both companies. Their actions were therefore joint, as shown by the fact that they sent a joint answer to the statement of objections.

50 The Commission denies that it regarded and treated the two companies as `independent undertakings'. The only evidence that it may have done so is that each of the companies was summoned to the hearing separately. Moreover, it follows clearly from recital 323 of the Decision that the Commission did not penalise the behaviour of Aristrain Madrid in isolation: the unlawful behaviour concerned the entire Aristrain group and the pecuniary sanction reflects the behaviour of both companies.

51 The Commission considers that taking Aristrain Olaberría's turnover into consideration is consistent with the requirements of Community competition law.

52 In its reply the applicant claims that by its letter of 22 June 1994 (see paragraph 54 above) the Commission proved it right in these proceedings by expressing the intention to amend the Decision so as to include Aristrain Olaberría among the addressees and to impose on each of the two companies of the group a fine the total amount of which would be equal to that imposed on the applicant alone.

53 In its rejoinder the Commission states that the reason for that proposed measure was not to correct any error but the desire to have greater safeguards when seeking enforcement of the penalty.

54 In his oral submissions to the Court, counsel for the applicant also referred to a hearing held in Brussels on 23 January 1995 before Mr Johannes, a Hearing Officer at the Commission, when the parties discussed whether it was necessary for the Commission to amend the Decision so as to include Aristrain Olaberría among the addressees. It is apparent from the minutes of that hearing, which were produced by the Commission at the Court's request and placed on the file, that counsel for the applicant opposed any amendment of the Decision. The Commission also produced, and the Court placed on the file, a letter to counsel for the applicant from Commission Member Mr Van Miert, worded as follows:

`Following the procedure for the amendment of the Decision and in the light of your allegations, I have decided for the time being not to propose that the Commission should amend the Decision as envisaged but rather to await the resolution of the matter by the Court of First Instance of the European Communities'.

Findings of the Court

55 The two beam-producing companies in the Aristrain group, Aristrain Madrid, the applicant in the present case, and Aristrain Olaberría, and also the Aristrain group itself, are described in recital 16(b) of the Decision in the following terms:

`José Maria Aristrain Madrid SA and José Maria Aristrain SA (hereinafter together referred to as "Aristrain") are steel-producing companies belonging to the Aristrain group whose shares are held by members of the Aristrain family ... José Maria Aristrain Madrid SA and José Maria Aristrain SA are now known as Siderúrgica Aristrain Madrid SL and Siderúrgica Aristrain Olaberría SL respectively.'

56 Thereafter the Decision refers simply to `Aristrain', meaning both Aristrain Madrid and Aristrain Olaberría. In recital 323 of the Decision the Commission states, however, that the Decision is addressed only to Aristrain Madrid, but that the fine imposed on that undertaking also takes into account the behaviour of its sister company Aristrain Olaberría.

57 According to Article 1 of the operative part of the Decision, the finding of infringements is made in respect of `Aristrain' and, consequently, of both Aristrain Madrid and Aristrain Olaberría. As already stated in recital 323, however, Article 4 of the operative part of the Decision imposes the fine only on `Siderúrgica Aristrain Madrid SL' and Article 6 of the operative part of the Decision names only that company as addressee.

58 It follows, moreover, from the explanations provided by the parties at the hearing that Aristrain Madrid and Aristrain Olaberría, whose respective production represents 36% and 64% of Aristrain's turnover for beams within the Community, pursue their activities, on the same markets, in the context of a commercial policy integrated at group level, and that they rely on the same distribution network. Thus, whether an order for beams recorded by the group sales division in the various Member States is implemented and delivered by Aristrain Madrid or by Aristrain Olaberría depends on an internal group decision, according to production programmes and the size of beams concerned (Aristrain Madrid specialises more in the production of small-dimension beams).

59 It is also apparent from the file that the Aristrain group and its subsidiaries participated equally in the infringements imputed solely to Aristrain Madrid in the Decision and that it is impossible to distinguish the various components of the group according to the extent of their individual participation in those infringements. Thus, for example, as far as the other undertakings belonging to the Poutrelles Committee were concerned, `Aristrain' was a single group encompassing both Aristrain Madrid and Aristrain Olaberría, which were represented by the same person or persons at the various meetings.

60 In those circumstances, the two companies Aristrain Madrid and Aristrain Olaberría must be regarded as constituting a single eeconomic unit and, accordingly, a single `undertaking' within the meaning of Article 65(5) of the Treaty (see Hydrotherm, cited above, paragraph 11, and Case C-73/95 P Viho v Commission [1996] ECR I-5457, paragraphs 15 to 18).

61 Furthermore, the Court of Justice and the Court of First Instance have consistently held that in view of the economic unit formed by a parent group and its subsidiaries, the actions of the subsidiaries may in certain circumstances be attributed to the parent company (see ICI v Commission, cited above, paragraph 135). Those circumstances are present here. Although each of the two beam-producing subsidiaries has separate legal personality, they do not decide independently upon their own conduct on the market, but essentially apply the instructions given to them by the group, which plays a stimulating and coordinating role (see ICI v Commission, cited above, paragraph 133, and Shell v Commission, cited above, paragraph 312).

62 However, it follows from the explanations provided by the Commission's Agent both at the interlocutory hearing before the President of the Court and at the hearing before the Court, and not disputed by the applicant, that although the Commission had actually intended to impute to the Aristrain `group' the infringements committed by its subsidiaries Aristrain Madrid and Aristrain Olaberría, it was impossible for it to identify the parent company of the group, which did not exist as a `holding company', `in the traditional meaning of the term', at the time when the statement of objections was sent, since the share capital was held by the Aristrain family. The Commission therefore sent the statement of objections to each of the two companies, Aristrain Madrid and Aristrain Olaberría, by letters of 6 May 1992, and also summoned each of them to the administrative hearing. In that regard, it should be pointed out that a single reply to the statement of objections was sent on behalf of both companies and that they expressed a desire to be represented by the same lawyers at the administrative hearing (see letters of 22 July 1992 and 3 September 1992 from the applicant's lawyers to the Commission).

63 It follows from the same undisputed explanations that the group `holding company' was formed afterwards, but that the Commission preferred not to include it among the addressees of the Decision, since the statement of objections had not been addressed to it. The Commission therefore chose a `representative company of the group', Aristrain Madrid, to which it imputed all the infringements and on which it imposed a fine which also took into account the behaviour and turnover of its sister company Aristrain Olaberría.

64 Since the Commission had duly established that Aristrain Madrid and Aristrain Olaberría had participated equally in the various infringements which they were found to have committed by Article 1 of the operative part of the Decision, and since the two companies must be regarded as constituting a single `undertaking' for the purposes of Article 65(5) of the Treaty, the Court considers that, in the specific circumstances of the case, the Commission was entitled to impute to the former responsibility for the latter's behaviour and, as it did in Article 4 of the operative part of the Decision, to take the latter's turnover into account in calculating the amount of the fine payable by the former.

65 The Court considers that in a situation in which, owing to the family composition of the group and the dispersal of its shareholders, it was impossible or exceedingly difficult to identify the legal person at its head to which, as the person responsible for coordinating the group's activities, responsibility could have been imputed for the infringements committed by the various component companies of the group, the Commission was entitled to hold the two subsidiaries Aristrain Madrid and Aristrain Olaberría jointly and severally responsible for all the acts of the group, in order to ensure that the formal separation between those companies, resulting from their separate legal personality, could not prevent a finding that they had acted jointly on the market for the purposes of applying the rules on competition (see ICI v Commission, paragraph 140).

66 It follows that in the present case the Commission was entitled to impose on the two sister companies a single fine of an amount calculated with reference to their combined turnover and to render them jointly and severally liable for payment.

67 It also follows that, by including only Aristrain Madrid in the group of addressees of the Decision, although it calculated the fine with reference to its turnover combined with that of Aristrain Olaberría, the Commission was not guilty of any illegality but merely deprived itself of a debtor, in the person of the latter company, with joint and several liability.

68 Any intention which the Commission may have had, as referred to in the letter of 22 June 1994 from Commission Member Mr Van Miert to Aristrain, of amending the Decision along the lines mentioned above was not followed up and cannot therefore be taken into consideration for the purposes of the present judgment.

69 It follows from all the foregoing that the present complaint must be rejected.

...

Breach of the rights of the defence

...

Findings of the Court

70 The rights of the defence invoked by the applicant are, in this case, guaranteed by the first paragraph of Article 36 of the ECSC Treaty, according to which the Commission must, before imposing a pecuniary sanction provided for in that Treaty, give the party concerned an opportunity to submit its comments (see Case 9/83 Eisen und Metall Aktiengesellschaft v Commission [1984] ECR 2071, paragraph 32, and Case 183/83 Krupp v Commission [1985] ECR 3609, paragraph 7).

71 As regards respect for this guarantee in the present case, it should first be pointed out that the statement of objections sent to the persons concerned on 6 May 1992 was individually adapted for each of the addressees in that it set out the behaviour and evidence relating to that person. Chapter VIII of the statement of objections also contains a detailed description of the infringements of the rules on competition and in the case of each infringement states the evidence on which the Commission relies.

72 The Commission enclosed with the statement of objections a copy of the documents which it specifically relied as against each of the undertakings concerned (Annex 3 to the statement of objections) and a summary list of all the documents constituting the file assembled in the present case (`Access List', Annex 2 to the statement of objections). As well as stating the date on which each document was drawn up and providing a very brief identification, the list grouped the documents, according to type, under twelve numbered headings and specified the extent to which they were accessible to each of the undertakings concerned. The Commission also invited the undertakings to come and consult all the accessible documents on its premises.

73 It follows from the foregoing that in the present case the Commission complied with the procedure for access to the file described in its Twelfth Report on Competition Policy (pp. 40 and 41), as approved in the case-law of the Court of Justice and the Court of First Instance in the context of the EC Treaty (Case T-7/89 Hercules Chemicals v Commission [1991] ECR II-1711, paragraphs 53 and 54, Joined Cases T-10/92, T-11/92, T-12/92 and T-15/92 Cimenteries CBR and Others v Commission [1992] ECR II-2667, paragraphs 38 to 41, Case T-65/89 BPB Industries and British Gypsum v Commission [1993] ECR II-389, paragraphs 29 to 33, upheld by judgment of the Court of Justice in Case C-310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I-865, paragraphs 12 to 33, and judgment in Case T-30/91 Solvay v Commission [1995] ECR II-1775, paragraphs 77 to 104), without there being any need for the Court to rule on the statements made by the Commission subsequent to the adoption of the Decision in the Twenty-third Report on Competition Policy, 1993, of 5 May 1994 (in particular point 202) concerning the communication of incriminating and exonerating evidence with the statement of objections.

74 The Court has also been able to ascertain in the present case that all the documents relating to the applicant in the file which the Commission sent to it pursuant to Article 23 were classified in Annex 2 to the statement of objections as `accessible' or, in the case of a small number of British Steel internal documents, as `partially accessible'. As regards the latter category, the applicant has not disputed that the objections are based only on extracts from the documents to which it was given access.

75 It must also be held that the documents numbered 1888 and 1892 in the Commission's file concern, first, British Steel's trade flows between the French and United Kingdom markets and, second, a table of British Steel deliveries. Those two documents do not concern the applicant in any way, since they are neither incriminating nor exculpatory, and could therefore have been properly classified as not accessible to the applicant in the list in Annex 2 to the statement of objections, since, pursuant to Article 47 of the Treaty, the Commission is required to protect the trade secrets of the other undertakings involved in these proceedings. The document dated 1 March 1990 referred to in point 40 of the statement of objections is numbered 3370 in the Commission's file and appears to be classified as accessible to the applicant and, moreover, was communicated to the applicant, according to the list in Annex 3 to the statement of objections.

76 It is common ground, moreover, that the applicant had access to the file according to the arrangements set out in the Commission's letter of 6 May 1992. It was therefore able to obtain copies of all the documents which the Commission considered `accessible' or `partially accessible'.

77 For the remainder, the applicant has not specified before the Court in what way the presentation of the documents listed in Annex 2 to the statement of objections was insufficient to enable it to find the documents concerned when it consulted the file.

78 As regards the allegation that in both the statement of objections and the Decision the Commission cited the incriminating documents with reference only to the date, without at the same time referring to the number in its file, it is true that such a system makes it less easy for the parties concerned and the Court to identify the documents in question, especially in a case, such as the present, involving thousands of documents, and that it would be more in keeping with good administrative practice for the Commission, in such circumstances, to identify the documents which it cites not only by reference to the date but also by reference to the number in the file.

-79 In the present case, however, the absence of any reference in the statement of objections or in the Decision to the numbers which the Commission gave the documents for the purpose of constituting its file is not of such a kind as to have adversely affected the applicant's rights of defence, since the applicant was able to identify the documents in question solely from the reference to the date, both in the list of documents in Annex 2 to the statement of objections and in the Commission's file. In particular, the documents listed in Annex IV to the reply can be identified without any particular problem.

80 As regards the fact that there was no Spanish translation of certain documents, it should be observed at the outset that the Commission cannot be required to translate more documents than those on which it bases its objections. These documents must also be regarded as incriminating documents on which the Commission relies and, accordingly, must be brought to the addressee's attention as such in such a way that the addressee is aware of the interpretation which the Commission has put on them and on which it has based both the statement of objections and the Decision. In the present case, Annex I to the statement of objections contained a translation of all the extracts from the documents cited in their original language in the statement of objections. The Court considers that this approach enabled the applicant to determine precisely on what facts and legal reasoning the Commission relied and therefore enabled it properly to defend its rights (see Case T-148/89 Tréfilunion v Commission [1995] ECR II-1063, paragraph 21).

81 The Court considers that in those circumstances the applicant has not established that it was not enabled during the administrative procedure properly to comment on the documents relied on against it in the statement of objections.

82 Last, it should be pointed out that the Decision contains, inter alia, an individualised list of the various infringements imputed to the applicant and of their duration in months. Article 4 of the operative part of the Decision states the date with reference to which the fines are imposed, that is to say, ignoring a clerical error (see paragraph 226 below), 31 December 1988 in the case of Aristrain. The question of the termination of the infringements is also dealt with in recital 318 of the Decision. The Decision also contains a detailed examination of each of the infringements, as regards both the facts and the legal analysis, for each participant. Finally, recital 313 of the Decision recognises the mitigating circumstances that existed in the case of the Spanish producers, while recitals 305 to 307 set out the aggravating factors identified and refers to the evidence justifying each of the accusations. By these various indications the Commission must be considered to have put the applicant in a position effectively to exercise its rights before the Court.

83 For the remainder, the allegation that the Commission has failed to establish that the applicant participated in the acts imputed to it, in support of which the applicant attached, in Annex V to its reply, a table setting out the incriminating documents, falls to be dealt with in the context of a review of the internal legality of the Decision and cannot in any event, even supposing it is made out, constitute proof of a breach of the rights of the defence.

84 It follows from all the foregoing that the present complaint must be rejected in its entirety.

The claim that the administrative procedure is void

Summary of the applicant's arguments

85 The applicant claims that the obligation borne by the Commission, as the administrative authority responsible for investigating the procedures which it initiates, not to delay unduly in adopting its decisions follows from the fundamental right, recognised in all Member States and in particular in Spanish law, to a fair hearing without unwarranted delay. The fact that there are no Community rules to that effect cannot relieve the Commission of its duty to act with the necessary diligence in order to prevent the person concerned from being interminably persecuted by the investigating authority, since otherwise the consequence will be a situation of legal uncertainty that breaches fundamental rights.

86 In the present case the chronology of the proceedings shows that, for reasons attributable solely to the Commission and not justified by objective, necessary and decisive factors, the proceedings were paralysed for periods varying between five months (between the parties' reply to the statement of objections and the hearing) and thirteen months (between the hearing of the parties and the adoption of the Decision). The applicant considers that such delays preclude the Commission from being able to impose a fine.

Findings of the Court

87 Although no provision of Community law refers to the concept of the administrative proceedings being void, within the meaning intended by the applicant, the requirement that the Commission act within a reasonable time when adopting decisions following administrative proceedings relating to competition policy is a general principle of Community law (judgments in Joined Cases T-213/95 and T-18/96 SCK and FNK v Commission [1997] ECR II-1739, paragraph 56 and the case-law cited there, and Case T-95/96 Gestevisión Telecinco v Commission [1998] ECR II-3407, paragraph 73).

88 The Court must therefore examine whether in the present case the Commission infringed the general principle that action must be taken within a reasonable time in the proceedings preceding the adoption of the Decision, it being understood that the reasonable nature of the duration of the administrative proceedings must be determined in relation to the particular circumstances of each case and, in particular, its context, the various procedural stages followed by the Commission, the conduct of the parties in the course of the procedure, the complexity of the case and its importance for the various parties involved (SCK and FNK v Commission, cited above, paragraph 57, and Gestevisión Telecinco v Commission, cited above, paragraph 75).

89 The administrative proceedings in the present case lasted, all told, approximately 36 months. The first inspections were carried out in January 1991. Further checks were carried out in March 1991. Additional information was provided by a number of the undertakings and associations of undertakings in question following requests made by the Commission pursuant to Article 47 of the ECSC Treaty. This applied, in particular, in the case of the applicant, which by letters of 17 and 19 September 1991 replied to the Commission's requests of 24 July and 6 August 1991. On the basis of the information obtained in these checks and requests for information, the Commission sent a statement of objections to the 19 undertakings and associations concerned, including the applicant, on 6 May 1992. The applicant replied by letter of 22 July 1992. The hearing of the undertakings to which the statement of objections was addressed, which was initially scheduled for September 1992, was postponed until January 1993 at the request of a number of those concerned so as to enable their legal advisers to prepare their defence in antidumping proceedings which had then been initiated against them by the United States authorities. Also at the request of the undertakings concerned, the Hearing Officer then ordered an internal inquiry into the role of DG III, which was carried out between January and April 1993. The minutes of the hearing were sent to the parties concerned on 8 July and 8 September 1993. In the meantime the draft decision was prepared, approved and translated by the competent departments of the Commission with a view to its adoption by the Members of the Commission; it was eventually adopted on 16 February 1994.

90 In the light of all these factors, the Court considers that the Commission acted in the administrative procedure preceding the adoption of the Decision in accordance with the principle that action must be taken within a reasonable time. Having regard, in particular, to the size and complexity of the case, and also to the number of undertakings involved, the Court considers, in particular, that a period of approximately thirteen months, several of which were devoted to an internal inquiry carried out at the request of the undertakings concerned, between the administrative hearing and the adoption of the Decision does not constitute an infringement of that principle (see also SCK and FNK v Commission, cited above, paragraph 66).

91 It follows that this complaint must be rejected.

...

C - Infringement of Article 65(1) of the Treaty

...

Price-fixing (target prices) within the Poutrelles Committee

1. The correctness of the facts

92 Under Article 1 of the Decision, the Commission accused the applicant of having engaged in price-fixing within the Poutrelles Committee. The period taken into account for the purposes of the fine was 24 months, from 1 January 1989 to 31 December 1990 (see recitals 80 to 121, 223 to 243, 311, 313 and 314, and Article 1 of the Decision). In that regard, it is true that Article 4 of the Decision, in the Spanish and French versions, states that the fine imposed on the applicant is for the infringements committed `after 31 December 1989'. However, it follows both from the German and English versions of Article 4 and from the grounds of the Decision (see recitals 313 and 314 concerning the consequences of the transitional period provided for in the Act of Accession of Spain and Article 1, which states that Aristrain participated in the infringement of price-fixing in the Poutrelles Committee for 24 months), in the light of which the operative part must be interpreted, that the reference to that date instead of to 31 December 1988 is a mere clerical error which has no effect on the content of the contested measure (see Case C-30/93 AC-ATEL Electronics Vertriebs v Hauptzollamt München-Mitte [1994] ECR I-2305, paragraphs 21 to 24).

...

The alternative claim for annulment of Article 4 of the Decision or, at least, reduction of the amount of the fine

...

D -The incorrect assessment of the various criteria and circumstances which the Decision takes into account as relevant to the determination of the amount of the fine

...

The assessment of the relevant turnover for the purpose of calculating the fine

...

Findings of the Court

93 Article 65(5) of the Treaty provides that:

`On any undertaking which has entered into an agreement which is automatically void, or has enforced or attempted to enforce ... an agreement or decision which is automatically void ... or has engaged in practices prohibited by paragraph 1 of this Article, the Commission may impose fines or periodic penalty payments not exceeding twice the turnover on the products which were the subject of the agreement, decision or practice prohibited by this Article; if, however, the purpose of the agreement, decision or practice is to restrict production, technical development or investment, this maximum may be raised to 10% of the annual turnover of the undertakings in question in the case of fines, and 20% of the daily turnover in the case of periodic penalty payments.'

94 Although the Decision does not state expressly which of the two ceilings in Article 65(5) of the Treaty was applied in the present case (see recital 299, which merely reproduces that provision), it is apparent from the explanations provided by the Commission at the hearing that it made use of the first, namely twice the turnover on the products which were the subject of the practice in question (see also recital 322 of the Decision, where the Commission refers to the `turnover in the relevant products'). The applicant's first complaint must therefore be rejected.

95 Furthermore, in the actual words of Article 65(5) of the Treaty the ceiling of 200% of the turnover on the products which were the subject of the infringement in question constitutes the main reference for the purpose of fixing the fine, which the Commission is entitled to apply in all circumstances. The ceiling of 10% of the annual turnover of the undertakings in question, on the other hand, is left to the free choice of the Commission only in certain well-defined circumstances. Since such circumstances were absent in this case, the Commission was not authorised to take account of the total turnover of the undertakings in question. The applicant's second complaint must for that reason also be rejected.

96 Contrary to what the applicant maintains, moreover, the system of the Treaty does not in itself penalise `single product' undertakings in comparison with undertakings whose production is diversified. The Treaty assumes that the turnover on the products which were the subject of a restrictive practice gives a fair measure of the harmful effect of that practice on normal competition within the common market, except in the particular case of Malthusian agreements with the object of restricting production, technical development or investment, which by their very nature are more appropriately penalised by the second ceiling in Article 65(5) of the Treaty. On the other hand, it is irrelevant that the interference with normal competition was committed by an undertaking with diversified production or by a `single product' undertaking. In principle, the restrictions on competition resulting from an undertaking's participation in an infringement depend less on its overall size than on its position in the market in the products affected by the infringement.

97 Nor does the implementation of this system in the present case discriminate against the applicant. Since the Commission began by determining, in accordance with Article 65(5) of the Treaty, the relevant percentage of turnover that should be taken into account for the purpose of fixing the fines, it would have unjustly penalised those undertakings with diversified production if it had increased that percentage by a factor intended to take account of their other production, whether to `give a warning' or for any other reason.

98 The Commission also acknowledges that it calculated the amount of the fine on the basis of the turnover of both Aristrain Madrid and Aristrain Olaberría, which, according to the Commission, had infringed the rules on competition to the same extent, although the Decision was addressed only to Aristrain Madrid (see recital 323).

99 As the Court has already held (see paragraphs 143 and 144 above), the Commission was entitled to impose on the applicant a single fine in an amount calculated with reference to the combined turnover of Aristrain Madrid and Aristrain Olaberría.

100 It is apparent from its auditors' certificate that in 1990 the applicant had a turnover of ESP 9 921 million, or ECU 76 563 000 (at the average exchange rate of ECU 1 = ESP 129.58 that must be used in the present case (see paragraph 663 below)) on sales of beams in the Community. The fine of ECU 10 600 000 imposed on it represents 13.84% of that turnover and is therefore significantly below the ceiling of 200% of that turnover provided for in Article 65(5) of the Treaty.

101 The Court further considers that, complying with that ceiling, the Commission was justified in applying the `base rate' of 7.5% of relevant turnover taken into account in the present case in calculating the fine (see paragraph 535 above) to the combined turnover of Aristrain Madrid and Aristrain Olaberría. Since the two companies had a combined turnover of ESP 27 749 million, or ECU 214 145 700, on their sales of beams in the Community in 1990, the fine of ECU 10 600 000 imposed on the applicant represents 4.95% of that turnover, and is therefore significantly below the `limit' of 7.5% that the Commission had imposed on itself.

102 It follows that the applicant's third complaint must be rejected.

103 Finally, it is apparent from the file and from the explanations provided by the Commission at the hearing that the fine imposed on the applicant was calculated on the basis of a turnover of ESP 34 468 million, which the applicant had itself indicated to the Commission in its letters of 30 July 1992, 2 December 1993 and 28 January 1994 as the turnover achieved by the Aristrain group on the Community market in beams in 1990.

104 In its letter of 24 February 1998 in answer to a written question put by the Court, the applicant claimed that that information was incorrect, since the figure of ESP 34 468 million included exports to non-member countries and thus did not relate exclusively to sales of beams within the ECSC. It enclosed with that answer a letter from its auditors dated 27 January 1995 certifying that the Aristrain group's turnover in the Community market in beams in 1990 was in fact ESP 27 748 915 000, representing ESP 17 827 510 000 for Aristrain Olaberría and ESP 9 921 405 000 for Aristrain Madrid.

105 In reply to the questions put by the Court at the hearing, the Commission maintained that the amount of the fine imposed on the applicant by the Decision should be regarded as correct, since it had been calculated on the basis of the figures provided by the applicant during the administrative procedure. The Commission states that it assumed that the figures initially communicated were correct and refuses to recognise the figures subsequently certified by the applicant's auditors.

106 The Court considers that the Commission cannot be criticised for having calculated the amount of the fine on the basis of the consistent figures provided by the applicant itself on three occasions in reply to requests for information pursuant to Article 47 of the Treaty.

107 It must be recognised, however, that the information thus communicated was incorrect, since it took account of the Aristrain group's sales of beams outside the Community, which were not covered by the Commission's request for information and, accordingly, should not have been taken into consideration for the purpose of calculating the fines imposed in the present case. In that regard, the Court sees no reason to query the truth or accuracy of the figures certified on 27 January 1995 after being revised by the applicant's auditors.

108 It follows that the applicant was incorrectly fined an amount which does not properly reflect its position on the Community market in beams or, consequently, the extent and gravity of its participation in the infringements in question. Although responsibility for the error lies with the applicant, the Court considers, in the exercise of its unlimited jurisdiction, that it is necessary to rectify the consequences and to reduce the amount of the fine imposed on the applicant accordingly.

...

Assessment of the duration of the infringements

...

109 For the reasons already set out in paragraph 226 above, it is unnecesary to take account of the factual error in the Spanish and French versions of Article 4 of the Decision. Consequently, the period taken into account by the Commission for the purposes of the fine is indeed 24 months, between 1 January 1989 and 31 December 1990, in the case of the Spanish producers, although it is normally 30 months, between 1 July 1988 and 31 December 1990, in the case of the other producers.

110 It follows from the detailed explanations provided by the Commission at the hearing, moreover, that the fines were adjusted in order to reflect, in particular, the duration of each infringement, except in the case of the agreements on the harmonisation of the prices of extras. The Commission thus properly took account of the shorter duration of the Spanish producers' participation in the price-fixing agreements and the exchanges of confidential information within the Poutrelles Committee, since the amount of the fine imposed on them under that head came to 80% (24/30) of the amount of the fine which they would have been required to pay if, like the majority of the other producers, they had participated in those infringements since 1 July 1988.

111 The Commission stated at recital 252 of the Decision, moreover, that `[f]or the reasons set out at recital 313, Ensidesa and Aristrain will not be held responsible for their participation in the agreement of 15 November 1988'. On the other hand, the applicant's participation in the four other agreements on the harmonisation of extras concluded between 1 January 1989 and 31 December 1990 was established. It appears, however, that the Commission did not take account of the applicant's lesser participation in these agreements when it calculated the amount of the fine to be imposed under that head, which was fixed at a flat rate of 0.5% of the relevant turnover for all the undertakings in question (subject to a separate reduction of 10% in the case of Aristrain and Ensidesa, since there had been no harmonisation of extras in Spain: see paragraph 356 above).

112 Having regard to those considerations, the Court considers, in the exercise of its unlimited jurisdiction, that the amount of the fine imposed on the applicant in respect of its participation in the agreements on the harmonisation of extras must be reduced by 20%.

113 For the remainder, the Court considers that unlawful behaviour in the form of participation in a series of agreements and restrictive practices of price-fixing, market-sharing and the exchange of confidential information, within the institutionalised framework of numerous meetings between producers over a period of two years, can properly be regarded as long-term. The applicant's remaining arguments must therefore be rejected.

...

The failure to take the devaluation of the peseta into account

114 The applicant claims that, by expressing the amount of the fines in ECU and not correcting the effects of the devaluations consequent upon the crisis in the European monetary system in 1992 and 1993, the Commission adopted a discriminatory attitude which adversely affected undertakings which, like the applicant, achieve the major part of their turnover in devalued currencies and which had a favourable effect on undertakings using revalued currencies, such as the German mark.

115 The applicant maintains that under the principle of equal treatment the Commission is required to ensure that situations or factors unconnected with the will, attitude or degree of participation of each undertaking in a joint infringement do not in practice give rise to a difference in treatment capable of having a negative effect on their competitive relations. Currency devaluations, in particular, should have a neutral effect on the outcome of a procedure pursuant to the competition rules.

116 When calculating the fine, the Commission took into account the Aristrain group's turnover for 1990, which was chosen as the reference year (see recital 16 of the Decision), namely ESP 34 468 million, converted it into ECU at the exchange rate of ESP 129.58 per ECU in force in 1990 and, applying to the result obtained, ECU 266 million, the percentage taken into account for the purpose of the penalty, namely 4%, finally arrived at the figure of ECU 10 600 000, the fine imposed by the Decision in February 1994. Since the exchange rate had become ESP 158.24 per ECU in 1994, the payment of the fine or the provision of the bank guarantee would involve the applicant in a surcharge of 22%, corresponding to ECU 1.92 million, or even 30% if the applicant's treatment is compared with that of the German undertakings.

117 The error on the Commission's part, which the applicant describes as gross negligence, is to have expressed the fines in ECU, which as a mere unit of account serves no purpose other than to ensure compliance with the ceilings in Regulation No 17, contrary to the case-law of the Court of Justice based on the reality of currency phenomena (see Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraphs 9 to 17, and the Opinion of Advocate General Mayras in that case, and Case 256/78 Misenta v Commission [1980] ECR 219). The applicant maintains that the discrimination could have been avoided either by expressing the turnover in the national currency or by using the exchange rate of the ECU in force on the date on which the Decision was adopted, in order to neutralise the effects of devaluation.

118 The applicant further claims that the risk of change is acceptable in international transactions because these provide corrective mechanisms, but not at the close of a very long administrative procedure in which the undertakings could not foresee the record amount of the historic penalties that would be imposed on them and against which they could not be forearmed.

119 The Court observes that, according to Article 4 of the Decision, the fines are payable in ECU.

120 There is nothing to prevent the Commission from expressing the amount of the fine in ECU, a monetary unit convertible into national currency. That also makes it easier for the undertakings to compare the amounts of the fines imposed. Furthermore, the possibility of converting the ECU into national currency distinguishes that monetary unit from the `unit of account' referred to in Article 15(2) of Regulation No 17, which, as the Court of Justice has expressly recognised, since it is not a currency in which payment is made, necessarily implies that the amount of the fine must be fixed in national currency (Joined Cases 41/73, 43/73 and 44/73 - Interpretation - Société Anonyme Générale Sucrière and Others v Commission and Others [1977] ECR 445, paragraph 15).

121 The applicant's criticisms concerning the legality of the Commission's method of converting the undertaking's reference turnover into ecus at the average exchange rate for that same year (1990) cannot be upheld, as the Court has already held in Case T-334/94 Sarrió v Commission [1998] ECR II-1439, paragraph 394 et seq.

122 First of all, the Commission should ordinarily use one and the same method of calculating the fines imposed on the undertakings penalised for having participated in the same infringement (see the Pioneer judgment, cited above, paragraph 122).

123 Second, in order to be able to compare the different turnover figures sent to it, which are expressed in the respective national currencies of the undertakings concerned, the Commission must convert those figures into a single monetary unit. As the value of the ecu is determined on the bais of the value of each national currency of the Member States, the Commission acted correctly in converting the turnover figure of each of the undertakings into ecus.

124 The Commission also acted correctly in taking the turnover in the reference year (1990) and converting that figure into ecus on the basis of the average exchange rates for that same year. In the first case, the taking into account of the turnover achieved by each undertaking during the reference year, that is to say, the last complete year of the period of infringement found, enabled the Commission to assess the size and economic power of each undertaking and the scale of the infringement committed by each of them, those aspects being relevant for an assessment of the gravity of the infringement committed by each undertaking (see the Pioneer judgment, cited above, paragraphs 120 and 121). Second, taking into account, in order to convert the turnover figures in question into ecus, the average exchange rates for the reference year adopted, enabled the Commission to prevent any monetary fluctuations occurring after the cessation of the infringement from affecting the assessment of the undertakings' relative size and economic power and the scale of the infringement committed by each of them and, accordingly, its assessment of the gravity of that infringement. The assessment of the gravity of an infringement must have regard to the economic reality as revealed at the time when that infringement was committed.

125 Thus, the argument that the turnover figure for the reference year should have been converted into ecus on the basis of the exchange rate applicable on the date of adoption of the Decision cannot be upheld. The method of calculating the fine by using the average rate of exchange for the reference year makes it possible to avoid the uncertain effects of changes in the real value of the national currencies which may, and in this case actually did, arise between the reference year and the year in which the Decision was adopted. Although this method may mean that a given undertaking must pay an amount, expressed in national currency, which is in nominal terms greater or less than that which it would have had to pay if the rate of exchange at the date of adoption of the Decision had been applied, that is merely the logical consequence of fluctuations in the real values of the various national currencies.

126 In addition, the undertakings to which the Decision was addressed generally carry out their activities in more than one Member State through the intermediary of local representatives. As a result, they operate in several national currencies. The applicant itself achieves a considerable proportion of its turnover on export markets (according to the letter of 27 January 1995 from its auditors, the applicant achieved a turnover in beams of ESP 6 067 974 000 in Spain and ESP 3 853 431 000 in the rest of the ECSC in 1990; these figures are ESP 12 717 803 000 and ESP 5 109 707 000 respectively in the case of its sister company, Aristrain Olaberría). Where a decision such as the Decision here at issue penalises infringements of Article 65(1) of the Treaty and where the undertakings to which that decision is addressed generally pursue their activities in several Member States, the turnover for the reference year converted into ecus at the average exchange rate used during that same year is made up of the sum of the turnovers achieved in each country in which the undertaking operates. It therefore takes full account of the actual economic situation of the undertakings concerned during the reference year.

127 In the light of the foregoing, the applicant's argument must be rejected.

Incorrect assessment of the various mitigating circumstances

...

128 For the reasons already set out above, it must be held that the Commission properly assessed the nature, extent, significance and duration of the applicant's participation in the infringements as found in the Decision.

129 Furthermore, the fact that an undertaking did not play a particularly active role or act as instigator does not excuse its participation in the infringement (BMW Belgium and Others v Commission, cited above, paragraph 49 et seq., and Case 19/77 Miller v Commission [1978] ECR 131, paragraph 18).

130 Furthermore, the fact that an undertaking found to have participated in an agreement on prices with its competitors did not behave on the market in a manner consistent with that agreed with its competitors does not necessarily constitute a factor that must be taken into account as a mitigating factor in determining the amount of the fine to be imposed (see Case T-2/89 Petrofina v Commission [1991] ECR II-1087, paragraph 173, and Case T-308/94 Cascades v Commission [1998] ECR II-925, paragraph 230). An undertaking which, despite the agreement with its competitors, pursues a more or less independent policy on the market may be merely attempting to use the agreement to its advantage.

131 In the present case the evidence provided by the applicant does not give reason to consider that its actual conduct on the market was susceptible of impeding the anticompetitive effects of the infringement found to have occurred. It is common ground that the applicant did in fact take part in the concerted initiatives on prices, while, in order of size, it is the second manufacturer of beams in the Community.

132 The applicant has adduced no evidence that it was subject to coercion on the part of the other undertakings in the sector and forced to join the Poutrelles Committee.

133 As regards the argument that there was no intentional or negligent attitude on the applicant's part, it is not necessary for an undertaking to have been aware that it was infringing the prohibition prescribed in Article 65 of the Treaty for an infringement to be regarded as having been committed intentionally; it is sufficient that it could not have been unaware that the contested conduct tended to distort normal competition on the common market (see, in relation to the EC Treaty, Case 246/86 Belasco and Others v Commission [1989] ECR 2117, paragraph 41, and Case T-310/94 Gruber + Weber v Commission [1998] ECR II-1043, paragraph 259).

134 In the present case it is sufficient to point out that the applicant participated in the meetings of the Poutrelles Committee, a body whose anticompetitive object has been established by the Commission, and in a market-sharing agreement with Ensidesa and British Steel.

135 Furthermore, the infringement of Article 65(1) of the Treaty which the applicant is found to have committed was blatant.

136 As regards the applicant's alleged cooperation with the Commission, the Court observes that in its reply to the statement of objections the applicant did not admit the substance of any of the allegations of fact made against it.

137 The Commission correctly took the view that the applicant, by replying in that way, did not conduct itself in a manner which justified a reduction in the fine on grounds of cooperation during the administrative procedure. A reduction on that ground is justified only if the conduct enabled the Commission to establish an infringement more easily and, where relevant, to bring it to an end (see Cascades v Commission, cited above, paragraph 255 et seq.).

138 Finally, the applicant's decision, following notification of the statement of objections, not to attend any further meetings of the Poutrelles Committee and to control the circulation of information outside the undertaking has no effect on the assessment to be made of its earlier conduct, especially where it was intentionally concealed from the Commission. In any event, the fact that a deliberate infringement was brought to an end cannot be regarded as a mitigating circumstance where it was terminated as a result of the Commission's intervention.

139 In the light of the foregoing, the applicant's arguments must be rejected in their entirety.

Breach of the principle of equal treatment of the undertakings penalised by the Decision

140 The applicant first complains that it was treated in the same way as the undertakings belonging to Eurofer, even though it was not a member of that association. It refers to recital 317 of the Decision, where the Commission states that it does not consider it necessary to impose any additional fines on the undertakings belonging to Eurofer in respect of the conduct of their association, `since those members are already being fined in respect of the infringements'. The failure to take account of the infringements committed by the association entails an increase in the level of the fine imposed in respect of the other infringements, to the detriment of those undertakings not belonging to Eurofer.

141 Second, the applicant considers that it was the subject of discriminatory treatment in comparison with the Scandinavian undertakings. In comparison with all the other price-fixing agreements penalised in the Decision, the Commission applied unequal criteria to the price-fixing agreements on the Danish market concluded by those undertakings within the Eurofer/Scandinavia group and imposed derisory fines on those undertakings (ECU 750 in the case of Norsk Jernverk AS and ECU 600 in the case of Anexa Profil AB), the amount of which does not bear comparison with that of its own fine, which, according to the applicant, cannot be explained by a mere difference in turnover.

142 Third, the applicant considers that the Commission should not have treated equally the large, heavily-subsidised, `multi-producer' steel groups and a `single-producer' family undertaking which, like the applicant, has never received any type of public aid or subsidy. Being required to pay the fine and/or provide a guarantee without any State support and unable to employ techniques of cross-subsidies between undertakings in the same group, the applicant was affected more harshly than others for reasons unconnected with the gravity and duration of the infringements. In its reply the applicant maintains that the fine imposed on the Aristrain group, compared with its total turnover, is 28 times that imposed on Usinor Sacilor, 17 times that imposed on NMH, 18 times that imposed on Thyssen, almost 11 times that imposed on TradeARBED, approximately 6 times that imposed on Saarstahl, almost 5 times that imposed on British Steel and 4 times that imposed on Preussag.

143 The Court points out that, according to a consistent line of decisions (see, for example, Case T-317/94 Moritz J. Weig v Commission [1998] ECR II-1235, paragraphs 287 to 289), the principle of non-discrimination requires that comparable situations must not be treated differently and different situations must not be treated in the same way, unless such treatment is objectively justified.

144 In the present case, the detailed explanations provided by the Commission at the hearing show that the Commission used the same method of calculation in determining the fine of each undertaking concerned, by applying the same percentages of relevant turnover adjusted according to the duration, gravity and geographical coverage of the infringements in which the undertaking concerned had participated.

145 As regards, therefore, first, the alleged discrimination in comparison with the undertakings belonging to Eurofer, it is sufficient to observe that all the undertakings which took part in the systems for the exchange of confidential information called in question in the Decision, whether or not they were members of Eurofer, were penalised in the same way, according to the duration of the infringement. The sole purpose of the Commission's decision not to impose any additional fines on the undertakings belonging to Eurofer in respect of the conduct of their association, which consisted in facilitating the exchange of information between them, was to avoid indirectly penalising those members twice for the same conduct. It does not follow, however, that the fine imposed in respect of the exchanges of information in question were increased, to the detriment of the undertakings not belonging to Eurofer.

146 As regards, second, the alleged discrimination in comparison with the Scandinavian undertakings, it should be pointed out that there are objective differences between the applicant and the Scandinavian undertakings Norsk Jernverk AS and Ovako AB, since these undertakings participated only in price-fixing agreements on the Danish market, the geographical extent of which is relatively limited, for 30 and 28 months respectively, whereas the applicant is accused of having participated in price-fixing agreements on various markets within the ECSC for 24 months, in the exchange of confidential information within the Poutrelles Committee for 24 months, in a market-sharing agreement with British Steel and Ensidesa for 8 months and in the harmonisation of extras. Furthermore, the Scandinavian undertakings' turnover for the product in question, a significant factor in the assessment of the penalties, is significantly lower than the applicant's and even lower than the Aristrain group's.

147 The applicant's third argument must be rejected for lack of evidence, in so far as it is based on an allegation, which is neither established nor even properly defined, of an interference by unidentified Member States with the conditions of competition, within the meaning of Article 67 of the Treaty, in favour of undertakings which are also unidentified. In so far as that argument is based on a distinction between `single-producer' undertakings and groups with diversified production, it must be rejected for the reasons already essentially set out in paragraph 576 above. As regards, last, the comparisons which the applicant makes concerning the impact of the fine according to the turnover of the various undertakings, these are irrelevant since they are based on overall turnover and not turnover in the product concerned, which alone was to be taken into consideration by the Commission (see paragraph 575 above).

Breach of the principle of proportionality ...

148 The Court has already found that the general level of fines imposed in the present case was calculated according to a number of relevant considerations, in particular the duration, gravity and blatant nature of the infringements, and also the economic importance of the undertakings on the market in question, reflected by their turnover on beams, and their knowledge that they were acting unlawfully.

149 Furthermore, it follows from the detailed explanations provided by the Commission at the hearing that the Commission started with a `base rate' of 7.5% of turnover achieved for the product concerned, adjusted according to the geographical extent and duration of the various individual infringements.

150 In the applicant's particular case the Court has already held that the duration of its participation in the infringements in question is indeed two years, not one year, that the turnover to be taken into account is that achieved by both Aristrain Madrid and Aristrain Olaberría, and that the fine imposed on the applicant in respect of its participation in the various infringements represents 4.95% of that combined turnover.

151 Having regard to all those considerations, the Court finds that the Commission did not commit a manifest error of assessment when it fixed the level of the fine to be imposed on the applicant.

152 Nor is there any reason to consider that the Commission relied on considerations unconnected with the present case when it determined the amount of the fines. Furthermore, even if the fines imposed in the present case were to be regarded as exemplary and deterrent, that would not be sufficient reason to establish a breach of the principle of proportionality (see Hilti v Commission, cited above).

153 Last, an undertaking's ability to pay a fine need not necessarily influence the determination of the penalty (Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ and Others v Commission [1983] ECR 3369). In any event, the Commission gave due consideration to that factor by allowing the fines to be paid in instalments.

154 It follows from all the foregoing that the Commission did not breach the principle of proportionality in fixing the general level of the fines, including the level of the fine to be imposed on the applicant.

The Court's exercise of its unlimited jurisdiction

155 First, neither Article 1 of the Decision nor the first table setting out the various price-fixing agreements at recital 314 of the Decision finds that the applicant participated in a price-fixing agreement on the Spanish market. However, it is apparent from the detailed explanations provided by the Commission at the hearing that the applicant was fined ECU 212 800 for such an infringement. According to the Commission, which refers to recitals 174 and 276 of the Decision, it is apparently due to an error that those factors were not set out in recital 314 and Article 1 of the Decision.

156 Since the operative part of the Decision does not find that the applicant participated in that infringement it must not be taken into account for the purpose of calculating the fine. The fine must therefore be reduced by ECU 212 800, following the method of calculation used by the Commission.

157 For the reasons set out at paragraph 598 above, the amount of the fine imposed on the applicant in respect of its participation in the agreements on the harmonisation of extras must also be reduced by 20%. The fine must therefore be reduced by ECU 239 400, taking into account the mitigating circumstance peculiar to the Spanish producers, following the method employed by the Commission.

158 For the reasons explained in paragraph 619 et seq. (2) above, the Court further considers that the total amount of the fine imposed for the price-fixing agreements and concerted practices should be reduced by 15% in view of the fact that the Commission exaggerated to some extent the anti-competitive effects of the infringements which it found to have occurred. If account is taken of the reductions already mentioned concerning the pricing agreements on the Spanish market and the agreements on the harmonisation of extras, that reduction comes to ECU 941 164, following the method of calculation used by the Commission.

159 For the reasons set out in paragraph 586 et seq. above, the Court considers that the applicant's fine should be calculated on the basis of a relevant turnover of ESP 27 748 917 000, or ESP 214 145 700, and not PTA 34 468 000 000. Taking account of the reductions already mentioned, the fine imposed on the applicant should therefore be reduced to ECU 7 412 184, following the method of calculation used by the Commission.

160 Finally, the Commission did not accuse the applicant of having participated in the concerted practice involving the fixing of the prices applicable in the United Kingdom during the second quarter of 1990, although such an infringement was found to have occurred in the case of certain other undertakings (see paragraph 276 above). Although that factor does not affect the duration of the infringement consisting in price-fixing within the Poutrelles Committee, in which the applicant is accused of having been involved in Article 1 of the operative part of the Decision, it is of such a kind as to reduce the degree of the applicant's involvment in that infringement in comparison with that of the other undertakings concerned. In that regard, the Court considers, in the exercise of its unlimited jurisdiction, that the fine should be reduced by ECU 300 000, following the method used by the Commission.

161 By its nature, the fixing of a fine by the Court, in the exercise of its unlimited jurisdiction, is not an arithmetically precise exercise. Moreover, the Court is not bound by the Commission's calculations, but must carry out its own assessment, taking all the circumstances of the case into account.

162 The Court considers that the Commission's general approach in determining the level of the fines is justified by the circumstances of the case. The infringements involving price-fixing and market-sharing, which are expressly prohibited by Article 65(1) of the Treaty, must be treated as particularly serious since they involve direct interference with the essential parameters of competition on the market in question. Likewise, the systems for the exchange of confidential information, in which the applicant is accused of having been involved, had a purpose similar to market-sharing according to traditional flows. All of the infringements taken into account for the purpose of the fine were committed, following the end of the crisis regime, after the undertakings had received appropriate warnings. As the Court has found, the general objective of the agreements and practices in question was precisely to prevent or distort the return to normal competition entailed by the ending of the manifest crisis regime. The undertakings, moreover, were aware of their unlawful nature and deliberately concealed them from the Commission.

163 Having regard to all of the foregoing and the entry into effect, on 1 January 1999, of Council Regulation (EC) No 1103/97 of 17 June 1997 laying down certain provisions concerning the introduction of the euro, the amount of the fine must be fixed at EUR 7 100 000.

...

Decision on costs

Costs

## Decision on costs

164 The applicant asks that the Commission be ordered to bear not only the entire costs of the present proceedings, in accordance with Article 87(2) of the Rules of Procedure, but also the costs which the applicant incurred during the administrative procedure. It bases its request on the principle of equity, on the errors in the contested Decision, which reveal maladministration, and on Article 34 of the Treaty.

165 Under Article 87(3) of the Rules of Procedure, the Court may, where each party succeeds on some and fails on other heads, order costs to be shared or order each party to bear its own costs. Since the action has been only partially successful, the Court considers it fair in the circumstances of the case to order the applicant to bear its own costs and to pay three quarters of the Commission's costs, including those incurred in the interlocutory proceedings.

166 According to Article 91(b) of the Rules of Procedure, recoverable costs are regarded as including `expenses necessarily incurred by the parties for the purpose of the proceedings, in particular the travel and subsistence expenses and the remuneration of agents, advisers or lawyers'.

167 It follows that, for the purposes of that provision, recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the Court, to the exclusion of those associated with the administrative stage (order in Case C-222/92 DEP SFEI and Others v Commission [1994] ECR I-5431, paragraph 12, and order of 25 June 1998 in Joined Cases T-177/94 (92) and T-178/94 (92) Altmann and Others v Commission, unpublished, paragraph 18) and, second, to those which were indispensable for that purpose (order of 9 November 1995 in Case C-89/95 DEP Ahlström Osakeyhtiö and Others v Commission, unpublished, paragraph 14).

168 The applicant's request that the defendant be ordered to bear the costs incurred during the administrative procedure cannot therefore be granted.

Operative part

On those grounds,

## Operative part

THE COURT OF FIRST INSTANCE

(Second Chamber, Extended Composition)

hereby:

1. Fixes the amount of the fine imposed on the applicant by Article 4 of Commission Decision 94/215 of 16 February 1994 relating to a proceeding pursuant to Article 65 of the ECSC Treaty concerning agreements and concerted practices engaged in by European producers of beams at EUR 7 100 000;

2. Dismisses the remainder of the action;

3. Orders the applicant to bear its own costs and to pay three quarters of the defendant's costs, including those of the interlocutory hearing. The defendant shall bear one quarter of its own costs.

(1) - The date mentioned in the French and Spanish versions of the Decision. The German and English versions give the date as 31 December 1988.

(2) - See Thyssen v Commission, paragraph 640 et seq.