Judgment — ECLI:EU:T:1999:50
Date: 1999-03-11
Language of the case: German
Court formation: Second Chamber, Extended Composition
Based on: Treaty establishing the European Coal and Steel Community (1951)
Subject matter: ECSC matters;Agreements and concentrations
Concepts: Agreements and concentrations. Interference with conditions of competition
Procedure: Action for annulment - unfounded;Action for annulment - successful
Origin: Germany

Summary of the applicants' requests 53. Several of the applicants have claimed that the defendant has not transmitted to the Court all the documents relevant to these cases, in breach of its obligation under Article 23 of the Statute of the Court of Justice, and some of them have specifically requested production of documents which are not in the file transmitted to the Court, in particular reports and internal memoranda prepared by officials of DG III on their contacts with beams producers and on Commission policy in this sector during the period covered by the Decision, together with the minutes of the Commission's meeting of 16 February 1994 and the documents relating to authentication of the Decision in the various authentic language versions (order of 19 June 1996, paragraphs 64 to 66; see also the observations of the applicants in Unimétal, Krupp Hoesch, Preussag and Thyssen in reply to the letter from the Court of First Instance of 21 July 1995). The Court reserved its decision on those requests (paragraph 4 of the operative part of the order of 19 June 1996). 54. In the forms of order sought in their applications a number of applicants also asked that the Court adopt particular measures of inquiry. 55. The applicant in Unimétal asks the Court 'to order the commissioning of an expert's report under Articles 65 to 67 of its Rules of Procedure to determine exactly what role DG III played during the period the Commission chose as the basis for calculating the fine, namely the period between 1 July 1988 and 31 December 1990, and, if necessary, to hear any witnesses involved in the facts alleged. 56. The applicant in Aristrain asks that the Commission be requested to produce to the Court pursuant to Article 44(1) and Article 65 of the Rules of Procedure: - all the internal documents used to calculate the fine imposed on it in so far as they have not already been transmitted in accordance with Article 23 of the Statute of the Court of Justice; - all the documents concerning the contacts set up with a view to the acquisition of Aristrain by British Steel, whether those documents are held by the Merger Task Force or by DG III or DG IV; - all the documents in its possession analysing the impact of Article F(2) of the Treaty on European Union on the Commission's internal procedures; - the file of the Hearing Officer in this case, in so far as it has not already done so in accordance with Article 23 of the Statute of the Court of Justice; - the documents relating to the investigation of the flat products ('coils) cartel capable of supporting the allegation of misuse of powers; - the documents concerning the harmonization of extras, in so far as it has not already done so pursuant to Article 23 of the Statute of the Court of Justice; - all the documents concerning the restructuring process for angles, shapes and sections; - the internal document concerning the reformatio in peius; - all the internal documents concerning the economic structure of the Community beams market, including studies made by the Merger Task Force. 57. Aristrain also requests that the Court order the appearance as witnesses of the Commission officials directly or indirectly involved in the case which led to the contested decision. Similarly, it requests that the officials of the DG IV Merger Task Force be heard with regard to the prior notification allegedly made by British Steel to the Commission regarding the acquisition of Aristrain. 58. Finally, should the Court be asked to appoint an expert at a subsequent stage in the proceedings, Aristrain requests that that expert be instructed to make an economic study of the market, of the possible existence of the agreements alleged by the Commission to have been made, of the effects on competition of the alleged concertation and of Aristrain's participation in such practices. 59. The applicant in Ensidesa requests the Court 'to order the Commission to produce information concerning: - the turnover figures which it used to determine the amount of the fine imposed on it and, in particular, concerning the question whether that figure was reached by converting into ecus, at the average exchange rate for 1990, the sectoral turnover figures which it had supplied; - the method used by the Commission to determine the coefficient for the fine imposed on it, and in particular the influence of each infringement and the duration of the infringements on the coefficient. 60. The applicant in Preussag requests that the following persons be heard as witnesses in support of its argument: - Jürgen Kolb, as regards the facts which occurred in the CDE; - Jörg Kröll and Hans Mette, as regards the facts which occurred in the Poutrelles Committee; - Hans Mette, as regards the facts which occurred at the Eurofer/Scandinavia meetings and as regards discussions with foreign producers; - Mr Kutscher, Mr Ortún, Mr Drees, Mr Evans and Mr Vanderseypen, as regards the fact that the Commission was aware of the information exchange and the conduct of the undertakings on the market, and with regard to cooperation between the Commission, the associations and the undertakings, in particular at meetings between the Commission and the steel industry. 61. The Commission having argued in its statement in defence that that request for the taking of evidence was inadmissible because it did not describe in sufficient detail the facts alleged to have been known by the various witnesses, contrary to Article 68(1) of the Rules of Procedure of the Court of First Instance, according to which witnesses may be heard with regard to 'certain facts, in its reply Preussag made specific offers of proof regarding some of its statements, providing for the hearing of certain witnesses, in particular Mr Kröll and Mr Mette, both of whom work for the applicant. Findings of the Court 62. As regards the allegation that the defendant did not comply with its obligations under Article 23 of the Statute of the Court of Justice (see paragraph 53, above), it should be noted that the case before the Court concerns a Commission decision relating to a proceeding pursuant to Article 65 of the Treaty concerning agreements and concerted practices engaged in by European producers of beams. 63. The Court considers that only the documents involved in that proceeding are documents 'relating to the case before the Court within the meaning of Article 23 of the Statute of the Court of Justice. As regards documents which, although relating more directly to other aspects of the Commission's conduct, appear equally necessary for the Court's review pursuant to Articles 33 and 36 of the Treaty, the Court may order their production by way of the measures of inquiry or organization of procedure referred to in Articles 64 and 65 of the Rules of Procedure. 64. Consequently, is not correct to say, as some of the applicants have argued, that in order to comply with its obligations under Article 23 of the Statute of the Court of Justice the defendant should have transmitted to the Court of First Instance spontaneously the whole of DG III's administrative file on its contacts with beams producers during the period to which the Decision relates. 65. Nevertheless, the question of DG III's involvement in setting up and operating certain mechanisms identified in the Decision as agreements or concerted practices restricting competition, or at least the question whether DG III (or even other Directorates-General) had or should have known of them, as the applicants maintain, appears to have been an important consideration in these cases, as the defendant acknowledged in point 312 of the Decision. 66. The parties have also devoted lengthy argument to that matter in their written observations in most of these cases. They have discussed in particular the relevance of the evidence adduced by the applicants regarding the contacts which the Commission is alleged to have had with beams producers after 30 June 1988 in the context of consultative meetings, restricted meetings and 'steel lunches (see, for example, the detailed analysis of the speaking notes in the Commission's statements in defence). 67. Accordingly, the Court considers it necessary to obtain further information on this question, without its being necessary to rule at this stage on the merits of the various pleas and arguments involved. 68. In the course of the hearing conducted on 11, 12, 13 and 14 January 1993 the applicants referred to contacts between beams producers and DG III during the period covered by the Statement of Objections and to the existence in DG III's archives of evidence unknown to DG IV showing that the Commission was at least aware of the information exchanges and the alleged practices designed to stabilize prices and production. The Hearing Officer acknowledged the importance of thatpoint for the defence of the undertakings accused of infringement, and invited them to submit to him any evidence in support of their argument, stating at the same time that he would conduct an internal investigation. 69. According to the defendant, which denies any such involvement or knowledge, none of the documents supplied by the applicants on the invitation of the Hearing Officer or in the course of the proceedings before the Court supported their allegations. Moreover, the defendant considers that it conducted a thorough investigation which did not produce any evidence in support of them. In particular, in the annex to some of its statements in defence it attached a memorandum from Mr Ortún, Director of Directorate E, Internal Market and Industrial Affairs III, in DG III, to Mr Schaub, Deputy Director-General of DG III, dated 19 February 1993, which rebuts those allegations. 70. However, it is clear that the documents produced inter alia by the applicants in ARBED, Cockerill-Sambre, Unimétal, Preussag and British Steel raise some doubt as to the precise nature and extent of the information received by DG III in the course of its contacts with representatives of the steel industry, in particular in connection with Commission Decision 2448/88/ECSC of 19 July 1988 introducing a surveillance system for certain products of undertakings in the steel industry (OJ 1988 L 212, p. 1). 71. The minutes of the restricted meeting of 21 March 1989 drawn up by Eurofer, for instance, contain the following remarks under the heading 'Results of the surveillance system: 'Mr von Hülsen gave information on the introduction of a statistical information system concerning monthly bookings and deliveries inside Eurofer. The result of the first inquiry for the months of January and February was given, showing an overall good situation [...] (see the application in British Steel, Appendix 3, document 24). 72. Similarly, the minutes of the consultative meeting of 28 April 1989 in which forward programmes for the third quarter of 1989 were discussed, contain the following passage: 'Finally, it was mentioned that in the near future, enlarged statistics on the basis of a rapid declaration of monthly bookings and deliveries established by Eurofer will help to make forecasts for Category IV more realistic (see the application in British Steel, Appendix 3, document 31). 73. Again, the minutes of the restricted meeting of 15 June 1989 state: 'Regarding the forward programmes for Quarter III/1989, Mr Traverso announced a possible review of the programmes after a final decision at the next CDE infunction of the figures obtained from the system of rapid declaration of bookings and deliveries (see the application in British Steel, Appendix 3, document 25). 74. At this stage of its examination of the cases, the Court is not in a position to determine whether the information exchanges referred to in those minutes are the same as those criticized in the Decision, or the extent to which they were effectively brought to the knowledge of some DG III officials, as their terms would seem to suggest. 75. However, it should be observed that in points 143 to 146 of the Decision the Commission described a system of monthly information exchanges regarding orders and deliveries for certain undertakings, conducted by Eurofer under the name of 'fast bookings, which at first sight may appear to be the system referred to in the minutes in question. The documents on which that description is based, and which are listed in Annex 2 to the Decision, comprise mainly tables of orders and/or deliveries, monthly or quarterly depending on the case, for the participating undertakings on the various national markets (see, for example, document number 3462 in the Commission's file). The conclusion reached after the legal assessment made in points 279 to 283 of the Decision is that that information exchange scheme is 'contrary to Article 65(1) of the ECSC Treaty. 76. The Court also notes that some of the minutes of consultative meetings between the Commission and the steel industry, in particular those held on 27 October 1988 and on 26 January, 27 April and 27 July 1989, refer to certain information regarding price trends which appears prima facie to be related to the contents of the corresponding minutes of meetings of the Poutrelles Committee held on 18 October 1988 and on 10 January, 19 April and 11 July 1989. 77. In those circumstances the Court considers that it does not have sufficient information either from Mr Ortún's memorandum of 19 February 1993 referred to above (which merely states with regard to DG III's meetings with Eurofer's commercial experts that 'the globalized results of production and delivery achieved by the undertakings were given to participants), or from the other internal documents relating to the 'thorough investigation conducted on the instructions of the Hearing Officer contained in the file transmitted to it. 78. Some of the internal documents produced by the defendant itself in the annexes to some of its statements in defence (see the confidential aide-mémoire of Unit 3, Raw and Processed Materials, of Directorate E of DG III dated 31 January 1989 on the consultative meeting held on 26 January 1989 in the course of which Mr Kutscher, chairing the meeting, warned that 'if the Commission should find that there was any agreement, made within the industry concerning prices and tonnages, which was contrary to the terms of Article 65 of the ECSC Treaty, then it would not fail to take the appropriate action in line with the provisions of the said article) indicate that the Commission (DG III) has retained its notes and aide-mémoires of those meetings and that they may help to clarify some of the issues of fact on which the Court is called upon to rule. 79. The Court notes, moreover, that the file transmitted to it does not appear to contain 'all the documents relating to the case as provided for in Article 23 of the Statute of the Court of Justice. In particular, neither the note from DG IV to DG III of 22 July 1991, nor the reply from DG III to DG IV of 12 September 1991, which are joined to some of the statements in defence, appears on the list of internal documents drawn up by the defendant and transmitted to the applicants at the request of the Court. However, not only are those notes generally concerned with the 'exchange of statistical information relating to Eurofer but they also refer expressly to a method described as the 'Traverso method, which relates to an infringement specifically imputed to European beams producers by the contested Decision (see points 72 to 79 and 254 to 259). Such documents relate directly to the proceeding at issue and should therefore have been included in the file transmitted to the Court. 80. In the light of those observations and in accordance with Article 24 of the Statute of the Court of Justice and Article 65 of the Rules of Procedure of the Court of First Instance, the Court finds it necessary to prescribe the measures of inquiry specified in the operative part of this order. 81. The Court reserves its decision as to the other measures of inquiry requested by the applicants. On those grounds, THE COURT OF FIRST INSTANCE (Second Chamber, Extended Composition) hereby orders: 1. Cases T-134/94, T-136/94, T-137/94, T-138/94, T-141/94, T-145/94, T-147/94, T-148/94, T-151/94, T-156/94 and T-157/94 are joined for the purposes of measures of inquiry and of organization of procedure and for the oral procedure. 2. Of the documents classified by the defendant as internal documents, only those bearing the numbers 9729, 9730, 9737 to 9746, 9748 to 9760, 9763 to 9765, 9769, 9770 and 9773 to 9787 in the file transmitted by it to the Court of First Instance by letter of 24 November 1994 are to be placed in the case-file and communicated to the parties. 3. The defendant shall transmit to the Court of First Instance within four weeks of notification of this order: - the notes, aide-mémoires or minutes drawn up by officials of DG III relating to their meetings with representatives of the steel industry during the period of application of the surveillance system established by Commission Decision 2448/88/ECSC of 19 July 1988 introducing a surveillance system for certain products of undertakings in the steel industry, and in particular those of 1 September, 27 October, 3 November and 8 December 1988, 26 January, 1 February, 21 March, 28 April, 15 June, 27 July, 1 September, 26 October, 7 November and 15 December 1989, 25 January, 7 February, 3 May, 27 July, 4 September and 5 November 1990; - the documents, other than those already in the possession of the Court of First Instance, received by officials of DG III from Eurofer or its product committees in the context of those meetings during the same period. 4. Costs are reserved. Luxembourg, 10 December 1997. H. Jung A. Kalogeropoulos Registrar President 1: Languages of the cases: T-134/94 German, T-136/94 German, T-137/94 French, T-138/94 French, T-141/94 German, T-145/94 French, T-147/94 German, T-148/94 German, T-151/94 English, T-156/94 Spanish and T-157/94 Spanish. ECR