Opinion of the Advocate General — ECLI:EU:C:1997:74
Date: 1997-02-20
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Procedure: Action for annulment;Appeal - unfounded
Origin: Italy

summary publication).
I-4418
FERRIERE NORD v COMMISSION
distortion of competition within the com­
mon market ...'. 17
18. Consequently, it may be inferred with
certainty from the Court's case-law that
Article 85(1) does not require an agreement
to have both an anti-competitive object and
an anti-competitive effect. It is only if the
content of the agreement does not disclose
an anti-competitive object that it will be nec­
essary to determine whether it has adverse
effects on competition. In other words, it
will be necessary to go into any deleterious
effect on the market only if it cannot be
found that the object of the agreement is
prohibited.
19. Consequently, the Court of First
Instance was right in law to reject the appel­
lant's argument based on the claim that the
conditions laid down in Article 8(1) of the
Treaty are cumulative.
20. That conclusion is unaffected by the fact
that that argument could be derived from the
Italian version of that provision. According
to the case-law cited by the Court of First
Instance, '... the need for a uniform interpre­
tation of Community [provisions] necessi­
tates that this passage should not be consid­
ered in isolation, but that, in cases of doubt,
it should be interpreted and applied in the
light of the versions existing in the other ...
languages'. 18 '[I]t must be borne in mind
that Community legislation is drafted in sev­
eral languages and that the different lan­
guages versions are all equally authentic. An
interpretation of a provision of Community
law thus involves a comparison of the differ­
ent language versions.' 19
21. Accordingly, the Court of First Instance
cannot be accused of not having taken
account of the Italian version of Article 85(1)
of the Treaty in interpreting and applying
that provision, since it had to respect the
overriding requirement of uniform interpre­
tation of Community law.
Effects on trade between Member States
22. The appellant claims that the Court of
First Instance erred in law by failing to con­
sider in what respect the agreements to
which it was a party affected trade between
Member States. It considers that, to be con­
trary to Article 85, an agreement must be
capable of affecting (pregiudicare) trade
between Member States to an appreciable
extent. In its view, however, the agreements
in question were not capable of affecting
trade between France and Italy to an appre­
ciable extent.
17 — Paragraph 3 of the summary, at I-46.
18 — Van der Vecht, at 354; my emphasis. 19 — CILFIT vMinistry of Health, paragraph 18.
I - 4419
OPINION OF MR LÉGER — CASE C-219/95 P
23. It refers in this regard to Béguelin
Import, 20 which sets out the requirements
for the application of Article 85 in the fol­
lowing terms:
'To be incompatible with the common mar­
ket and prohibited under Article 85, an
agreement must be one which "may affect
trade between Member States" and have "as
[its] object or effect" an impediment to
"competition within the common market". 21
'Finally, in order to come within the prohibi­
tion imposed by Article 85, the agreement
must affect trade between Member States and
the free play of competition to an appre­
ciable extent. 22
...'
24. That judgment simply confirms the case-
law to the effect that an agreement is caught
by Article 85 only if there is a sufficient
degree of probability that it may have an
influence on the pattern of trade in such a
way that it might hinder the attainment of a
single market between States. That condition
must be understood by reference to the
actual circumstances of the agreement. Only
actual examination can bear this out. 23
25. Whilst the appellant considers that fac­
tual aspects (intra-Community trade con­
fined to frontier regions) peculiar to the cir­
cumstances of the case suffice to rule out the
possibility that its participation in the agree­
ments at issue had any influence whatsoever
on intra-Community trade in welded steel
mesh, it seems to me that, on the contrary,
the contested judgment scrupulously took
account of the facts of the dispute in analys­
ing the arguments put forward by the appel­
lant in its application, as reiterated in its
appeal, and that it rejected them after setting
out detailed reasoning.
26. The Court of First Instance rightly held
in accordance with this Court's case-law that
it is enough, for the purposes of Article
85(1), that the agreements at issue were
capable of affecting trade to an appreciable
effect, and that there is no need to establish
that there were such effects.
20 — Case 22/71 Béguelin Import [1971] ECR 949.
21 — Paragraph 10.
22 — Paragraph 16.
23 — See, for example, Case 5/69 Volk [1969] ECR 295, para­
graph 7, and Case 1/71 Cadillon [1971] ECR 351, para­
graph 8.
I - 4420
FERRIERE NORD v COMMISSION
27. The Court of First Instance was there­
fore perfectly justified in stating that the
restrictive effect may be caught by Article
85(1) if the following two conditions are
met: it is sufficient that the effect either actu­
ally occurred or was capable of occurring;
the damage which it was capable of causing
to competition must have been appreciable:
'With regard to the effect on trade between
Member States, Article 85(1) of the Treaty
does not require that the restrictions on
competition which have been established
have actually affected trade between Member
States, but only requires that it be established
that such agreements are capable of having
that effect (judgment in [Case 19/77] Miller
[[1978] ECR 131], paragraph 15).' 24
28. The reference made by the Court of
First Instance to the judgment in Miller
appropriately calls to mind this Court's
completely unambiguous view on this point:
'In prohibiting agreements which may affect
trade between Member States and which
have as their object or effect the restriction
of competition, Article 85(1) of the Treaty
does not require proof that such agreements
have in fact appreciably affected such trade,
which would moreover be difficult in the
majority of cases to establish for legal pur­
poses, but merely requires that it be estab­
lished that such agreements are capable of
having that effect.' 25
29. The Court of First Instance then ana­
lysed the context of the case before concluding
that the market could have been appreciably
affected:
'In the present case, the fact that the appli­
cant's units of production of welded steel
mesh are far away from the French market is
not in itself of such a nature as to hinder its
exports to that market. Moreover, the appli­
cant's arguments themselves show that the
agreements were, in so far as they tended to
increase prices, likely to increase its exports
to France and thereby to affect trade
between Member States.
Furthermore, assuming, as the applicant
claims, that the agreements did not alter the
total market share held by the Italian pro­
ducers and that its exports remained far
below its allocated quota, it is nevertheless
the case that the restrictions on competition
which have been established were likely to
divert patterns of trade from the course
which they would otherwise have followed
24 — Paragraph 32. 25 — Miller, paragraph 15.
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OPINION OF MR LÉGER — CASE C-219/95 P
(judgment in [Joined Cases 209/78 to 215/78
and 218/78] Van Landewyck [[1980] ECR
3125], paragraph 172). The object of the
agreements was to allocate quotas for
imports into the French market in order to
bring about an artificial increase in prices on
that market.' 26
30. Moreover, the appellant considers that
the Court of First Instance was wrong to cite
(at paragraph 27 of the contested judgment)
the judgment in Enichem Anie v Commis­
sion. 27 It argues that, whereas that case was
concerned with an agreement between all
producers in the Community with a view to
sharing the market by means of the indi­
vidual allocation of annual sales 'quotas',
trade between States was very limited in the
case of welded steel mesh.
31. That argument cannot be upheld and the
reference made by the Court of First
Instance is entirely relevant.
32. TheCourt of First Instance rightly held
that '... the question whether, having regard
to the applicant's weak position on the
French market, its own participation in those
agreements could restrict competition or
affect trade between Member States is irrel­
evant'. The only relevant factor — which
was indeed considered, as I have just
observed —was whether, in accordance with
Enichem Anie v Commission, as cited by the
Court of First Instance, the infringement in
which the appellant took part was capable as
a whole of infringing Article 85 of the
Treaty:
'... the applicant's argument that its own
activities could not have restricted compe­
tition must be rejected since the relevant
question is not whether the applicant's indi­
vidual participation was capable of restrict­
ing competition but whether the infringe­
ment in which it participated with others
could have had that effect. The undertakings
which took part in the infringement held in
the Decision to have been committed
account for nearly thewhole of that market,
which would clearly indicate that the
infringement which they committed together
could restrict competition.' 28
33. Consequently, the argument that the
Court of First Instance misinterpreted the
concept of detrimental effect on trade
between Members States within the meaning
of Article 85of the Treaty cannot be upheld.
26 — Paragraphs 33 and 34 of the contested judgment.
27 — Case T-6/89 Enichem Anic v Commission [1991] ECR
II-1623, paragraphs 216 and 224. 28 — Enichem Anic v Commission, paragraph 216.
I - 4422
FERRIERE NORD v COMMISSION
Effect of the regime for wire rod on the mar­
ket in welded steel mesh
34. In its action before the Court of First
Instance, the appellant observed that, in
assessing the impact on competition of the
agreements at issue, the economic and legal
context relating to wire rod could not be
ignored in view of the close links between
the market in welded steel mesh, the product
to which the anti-competitive agreements
related, and the market in wire rod, a prod­
uct coming under the ECSC Treaty. In so far
as the price of welded steel mesh largely
depends on the price of wire rod, if the
agreements at issue had had the effect of
increasing the price of welded steel mesh,
that outcome coincided with the Commis­
sion's wish, as manifested in its policy of
restructuring the steel industry, of seeing the
price of wire rod increase, since the rise in
the price of wire rod was brought about by
the increase in the price of welded steel
mesh.
35. At paragraph 29 of the contested judg­
ment, the Court of First Instance conceded
as follows:
'With regard to the effect on competition, it
is true, as the applicant observes, that the
price of welded steel mesh depends largely
on that of wire rod'. 29
It considered, however, in making its deter­
mination of the facts submitted to it in the
exercise of its sole jurisdiction as tribunal of
fact, as follows:
'but it does not follow from this that any
possibility of effective competition in that
sector was precluded. The producers still had
a sufficient margin to allow effective compe­
tition in the market. The agreements could
therefore have had an appreciable effect on
competition (judgment of the Court of
Justice in Van Landewyck and Others v
Commission [cited above], paragraphs 133
and 153).'
36. Reiterating the reasoning it had already
expounded before the Court of First
Instance, the appellant argues on appeal that
the Court of First Instance failed to assess its
argument that the agreement relating to
welded steel mesh was lawful on the ground
that it helped to decrease production of wire
rod, and referred to irrelevant case-law.
29 — In so doing, however, it emphasized a factor which had
already been taken into account by the decision. In the fac­
tual part of the decision, point A(2) states that The value
added in welded steel mesh compared with its intermediate
material, wire rod, is relatively small (20 to 25%). Its final
price depends greatly, therefore, on the price of the inter­
mediate material.'
I - 4423
OPINION OF MR LÉGER — CASE C-219/95 P
37. To my mind, the Court of First Instance
cannot be accused of having failed to con­
sider the appellant's reasoning in this regard.
38. It considered that the essential aspect
was whether there was potential for effective
competition on the market in question. The
Court of First Instance answered that ques­
tion in the affirmative and concluded that the
agreements in the market in welded steel
mesh were capable of having an appreciable
effect on competition.
39. Consequently, that argument should be
rejected.
Second plea alleging that the fine is unfair
40. By its second plea the appellant main­
tains that the Court of First Instance misin­
terpreted and misapplied Article 15(2) of
Regulation No 17, which gives the Commis­
sion simply a power to impose a fine, with­
out requiring it to do so. It argues that the
Court of First Instance considered it settled
that where the competition rules have been
infringed, the Commission must impose a
fine.
41. Conversely, it argues that it is possible
not to impose a fine where this is warranted
by the circumstances. Specifically it contends
that the Court of First Instance failed to
consider all the arguments which it put for­
ward in order to evaluate whether a fine was
justified in this case and whether the fine was
imposed in accordance with criteria of fair­
ness. In this connection, it raises an argu­
ment which it considers to be 'determina­
tive'. It relates to the close link between the
market in welded steel mesh and the market
in wire rod, which, in its view, should have
had a bearing on whether the fine was justi­
fied and on its amount. It refers chiefly to
the judgment in Suiker Unie and Others v
Commission, 30, in which this Court consid­
erably reduced the amount of the fines
imposed by the Commission on the ground
that the latter had not taken account of the
legislative background and economic context
of the conduct to which exception was taken
— that is to say of the extent to which the
system introduced by the common organiza­
tion of the markets was capable of affecting
conditions on the sugar market. It takes the
view that the situation in this case is no dif­
ferent from the one considered by this Court
in Suiker Unie and accuses the Court of First
Instance of having failed to discern any simi­
larity between the situation of the sugar in
Suiker Unie and that of wire rod in this case
on the ground that in the former case there
was a common organization of the market
and in the other a quota and price regime. In
the appellant's view, a quota and price
regime under the ECSC is tantamount to a
common organization of the agricultural
markets.
42. Lastly, the appellant seeks to obtain a
reduction in the fine by raising a series of
arguments which it maintains the Court of
First Instance failed to take into account. I
shall examine those arguments in turn.
30 — Joined Cases 40/73 to 48/73, 50/73, 54/73, 55/73, 56/73,
111/73, 113/73 and 114/73 Suiker Unie and Others v Com­
mission [1975] ECR 1663.
I - 4424
FERRIERE NORD v COMMISSION
43. By this plea, the appellant is in fact con­
testing the Court of First Instance's interpre­
tation and application of Article 15(2) of
Regulation No 17 as regards (a) the qualify­
ing conditions on account of which the
Commission may inflict a fine and (b) the
determination of the amount of the fine.
44. Under Article 15(2) of Regulation
No 17:
'2. The Commission may by decision
impose on undertakings or associations of
undertakings fines ... where, either intention­
ally or negligently:
(a) they infringe Article 85(1) or Article 86
of the Treaty; ...
In fixing the amount of the fine, regard shall
be had both to the gravity and to the dura­
tion of the infringement.'
45. As far as the actual principle of imposing
a fine is concerned, the Court of First
Instance cannot be accused, as the appellant
alleges, of not having specified the optional
nature of a fine in the event of a finding of
an infringement of Article 85(1). The word­
ing of Article 15(2) of Regulation No 17
('The Commission may') is sufficient to
establish this and the Court of First Instance
is not under any obligation to point this out
in order not to infringe that provision.
46. The only requirement laid down in
Article 15(2) in order for the Commission to
exercise its power, according to the case-law
of this Court, is that there must have been a
finding that the infringements were commit­
ted '... intentionally or at least negligently, so
that the undertakings concerned are liable to
pay a fine as provided for in Article 15(2) of
Regulation No 17 in respect thereof ...'. 31
The Court of First Instance took care to call
that qualifying condition to mind in para­
graph 41 of the contested judgment before
going on in paragraph 42 to find that it was
fulfilled:
'In the present case, having regard to the
intrinsic seriousness and obvious nature of
the infringement of Article 85(1) of the
Treaty, and in particular subparagraphs (a)
and (c) thereof, the Court considers that the
applicant cannot claim that it did not act
deliberately.'
47. Neither can it be accepted that the Court
of First Instance failed to establish that it
was justified in imposing the fine, in particu­
lar as regards its amount, and that it did not
take account of the appellant's arguments.
48. The second subparagraph of Article 15(2)
of Regulation No 17 provides that, in fixing
the amount of the fine, regard is to be had
to 'the gravity and to the duration of the
31 — Suiker Unie and Others v Commission, paragraph 611. See
also the order of the Court of Justice of 25 March 1996 in
Case C-137/95 P SPO and Others v Commission [1996]
ECR I-1611, paragraph 53.
I - 4425
OPINION OF MR LÉGER — CASE C-219/95 P
infringement'. The requirement relating to
the 'gravity of the infringement' is inter­
preted by this Court as having to be estab­
lished in the light of a number of factors,
such as the legislative and economic context
of the sector in question. This is among the
avenues by which the appellant seeks to
obtain a reduction in the amount of the fine
which has been imposed on it.
49. As for what the appellant regards as its
'determinative' argument, that is to say the
link with the market in wire rod, which it
considers should have a bearing on the justi­
fication or the amount of the fine, it must be
held that the Court of First Instance duly set
forth the appellant's reasoning (paragraphs
58, 59 and 60 of the contested judgment)
before setting out its reasons for rejecting it
(paragraphs 63 to 66).
50. In particular with regard to the alleged
parallel with the link between sugar and beet
considered by this Court in the judgment in
Suiker Unie, the Court of First Instance
described the appellant's claims thus in para­
graph 58 of its judgment:
'In those cases there was a common organi­
zation of the markets for sugar which was
intended to guarantee, by a system of prices
and quotas, fair remuneration for the base
product, sugar beet. Here there is "a com­
mon organization of the markets" at the
level of the basic product, wire rod, the aim
of which is to protect that product directly,
although there is no provision made for the
processed product. Without any rules gov­
erning deliveries and prices of the processed
product, welded steel mesh, there was risk
that the protection given to wire rod would
have been ineffective. That is why the pro­
ducers filled that gap in the system with their
own rules on their own initiative. The Court
ought therefore to make a considerable
reduction in the fine, as the Court of Justice
did in the judgment in the Suiker Unie case,
on the ground that the scope for applying
the competition rules was greatly reduced.'
51. In the judgment in Suiker Unie, this
Court, after setting out the basis for the
principle of imposing a fine, 32 stated the cri­
teria for determining its amount:
'In fixing the amount of the fines under
Article 15(2) [of Regulation No 17] regard
shall be had both to the gravity and the
duration of the infringement so that the
Court has to take particular account of the
legislative background and economic context
of the conduct to which exception is taken,
the nature of the restrictions of competition,
as well as the number and size of the under­
takings concerned.' 33
32 — Paragraph 611.
33 — Paragraph 612.
I - 4426
FERRIERE NORD v COMMISSION
After this, the Court justified the reduction
in the fine in terms of the specific character­
istics of the market in sugar:
'The common organization of the market in
sugar, which moreover is tending to emerge
from its initial transitional phase and ... only
left a residual field available for competition,
has therefore helped to ensure that sugar
producers continue to behave in an uncom­
petitive manner.
Although this situation cannot lead to accep­
tance of practices which are likely to make
still worse what are, from the point of view
of the Treaty, the disadvantages of such a
system, it nevertheless means that the behav­
iour of the parties concerned cannot be
regarded with the usual severity.' 34
'Having regard to these factors the fines
imposed ... must be reduced ...'. 35
52. The Court of First Instance rejected as
follows the alleged parallel to be drawn
between the market situation considered in
Suiker Unie and the instant case:
'the applicant cannot rely on the judgment in
Suiker Unie, since that judgment relates to a
situation which is fundamentally different in
two respects from that in the present case.
First, the Suiker Unie case concerned a com­
mon organization of an agricultural market
falling within the EEC Treaty, whereas the
present case concerns a system of pricing and
production quotas falling under the ECSC
Treaty. Secondly, in the Suiker Unie case, it
was the derived product which was the sub­
ject of a common organization of the market,
whereas in the present case it is the basic
product which is the subject of the pricing
and production quota system. It follows
that, at an economic level, the situation with
which the Suiker Unie judgment was con­
cerned and that in the present case are fun­
damentally different, and the applicant can
therefore not rely on that judgment in sup­
port of its claims.' 36
53. Accordingly, contrary to what the appel­
lant contends, the Court of First Instance did
pay sufficient attention to its arguments. In
particular, it clearly established that, unlike
the situation considered by this Court in
Suiker Unie, the market in welded steel mesh
is such that there can be effective compe­
tition and that the agreements on that market
amounted to an infringement of Article 85
justifying imposition of the fine laid down in
the contested decision.
34 — Paragraphs 619 and 620.
35 — Paragraph 624. 36 — Paragraph 63.
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OPINION OF MR LÉGER — CASE C-219/95 P
54. As regards lastly the series of arguments
put forward by the appellant with a view to
obtaining a reduction in the fine imposed on
it, they need not detain us long since, in
applying Article 15(2) of Regulation No 17,
once again the Court of First Instance can­
not be accused of having failed to take them
into account.
55. For the purposes of fixing the amount of
the fine, the gravity of the infringement,
which has to be taken into account, '... has to
be determined by reference to numerous fac­
tors, such as, in particular, the particular cir­
cumstances of the case, its context and the
dissuasive effect of fines; moreover, no bind­
ing or exhaustive list of the criteria which
must be applied has [to be] drawn up'. 37
56. It is therefore not so much whether a list
of arguments was taken into consideration,
but whether two factors, one relating to the
duration of the infringement, the other to its
gravity, which has to be assessed in the light
of a general context, were present which is
determinative in assessing the amount of the
fine imposed. In applying the second sub­
paragraph of Article 15(2) of Regulation No
17 as it did, the Court of First Instance did
investigate whether those two conditions
were satisfied.
57. As far as the duration of the infringe­
ment is concerned, the assessment of which
is not contested by the appellant, I would
refer to the facts set out in paragraph 15 of
the contested judgment.
58. As regards the gravity of the infringe­
ment, suffice it to say that the Court of First
Instance did not shirk from considering the
matters raised in support of the appeal.
59. Accordingly, the appellant's argument
that it acted with the intention of safeguard­
ing the market in wire rod 'in accordance
with the provisions adopted by the Commis­
sion' was considered and rejected by the
Court of First Instance in paragraph 64 of
the contested judgment on the ground that it
could not be relied upon as a 'mitigating fac­
tor'.
60. Furthermore, the appellant's allegation
that it did not benefit in any way from the
alleged infringement was considered by the
Court of First Instance in paragraph 53 et
seq. of the contested judgment, where it is
stressed that the decision did in fact take
account of the unprofitable nature of the
production of welded steel mesh in general
and of the appellant's position in particular.
61. As for the argument that the appellant
had acted 'with a view to integrating and not
37 — Order in SPO and Others v Commission, paragraphs 53
and 54; my emphasis.
I - 4428
FERRIERE NORD v COMMISSION
partitioning the markets', it was not raised as
such during the proceedings before the
Court of First Instance. However, as the
Commission has pointed out, that argument
falls within the broader context of an
infringement committed intentionally or
negligently and, as such, was correctly analy­
sed in paragraphs 41 and 42 of the contested
judgment.
62. As to the appellant's contention that it
was not party either to the agreements relat­
ing to the Benelux market or to those relat­
ing to the German market, even though it
had a considerable interest in the latter, the
Court of First Instance cannot be accused of
having failed to pay heed to this argument,
since, in any event, the decision accuses the
appellant only of having participated in the
agreements relating to the French market,
not of having participated in those relating to
the Benelux or German markets.
63. Lastly, the argument that the appellant
did not encourage the anti-competitive
agreements on the Italian market, even
though it had been in a position to do so
having regard to its important position on
that market, — an argument which was not
taken up by the Court of First Instance —
seems to me to carry no weight: the appel­
lant cannot use as a mitigating factor the
claim that it did not engage in prohibited
practices to a greater extent than it actually
did.
64. The plea alleging misinterpretation and
misapplication of Article 15(2) of Regulation
No 17 should therefore also be rejected.
Conclusion
65. For the reasons set out above, I propose that the Court should:
— dismiss the appeal in its entirety;
— order the appellant to pay the costs in accordance with Article 69(2) of the
Rules of Procedure.
I - 4429