Judgment — ECLI:EU:T:2000:278
Date: 2000-11-30
Language of the case: French
Court formation: Fifth Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Dominant position
Concepts: Statement of reasons;Anti-dumping and anti-subsidy measures;Definition of abuse;Admissibility and examination of applications, forms of order sought and pleas in law;Hearing of persons concerned and of third parties / Access to the file
Procedure: Action for annulment - unfounded
Origin: France

summary of the pleas in law used in those instruments mean that the application must specify the nature of the pleas on which the application is based (judgment of the Court of Justice in Joined Cases 19/60, 21/60, 2/61 and 3/61 Société Fives Lille Cail and Others v High Authority [1961] ECR 281, and the order in Hoe v Commission, cited above, paragraph 21). 194. In the present case, the applicant did not restrict itself to an abstract statement of that plea in law in the application but specified the nature of the plea by making clear the essential facts and law. The applicant sets out clearly the questions which, in its submission, the Commission has not examined in the decision. The fact that the applicant might have used the same arguments to claim that Articles 86 and 190 of the Treaty were infringed does not prevent the defendant from preparing its defence and the Court of First Instance from deciding the case. 195. It follows that the first plea in law must be declared admissible in its entirety. 2. Substance (a) Infringement of Article 190 of the Treaty Arguments of the parties 196. The applicant submits that the Commission should have examined the question as to whether the fact that PEM resorted to an anti-dumping proceeding simultaneously with the practice aimed at excluding IPS from the market could also constitute abusive conduct. However, in the applicant's submission, the decision does not contain any aspect which makes it possible to check whether the question has been looked into. It follows that by failing to proceed to any verification of that matter, the Commission has failed to fulfil the obligation to state reasons under Article 190 of the Treaty. 197. The Commission states that it has provided adequate reasons for the decision because it contains the essential reasons for rejecting that part of the complaint. That may be seen from the fact that the application contains criticisms of the statement of reasons which would have been impossible to make if it had not existed. Findings of the Court 198. It is settled case-law that the statement of reasons required by Article 190 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see the judgments of the Court of Justice in Joined Cases 296/82 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809, paragraph 19; Case C-350/88 Delacre and Others v Commission [1990] ECR I-395, paragraphs 15 and 16; Case C-56/93 Belgium v Commission [1996] ECR I-723, paragraph 86; and Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63). 199. As regards, more in particular, a Commission decision rejecting a complaint, the Court of First Instance has held that the Commission is not obliged to adopt aposition, in stating the reasons for the decisions which it is required to take in order to apply the competition rules, on all the arguments relied on by the parties concerned in support of their request. It is sufficient if it sets out the facts and legal considerations having decisive importance in the context of the decision (Case T-7/92 Asia Motor France and Others v Commission [1993] ECR II-669, paragraph 31, and Case T-224/95 Tremblay and Others v Commission [1997] ECR II-2215, paragraph 57). 200. In the present case, as is apparent from examination of the second and third pleas in law, the Commission, in the decision, carried out a close examination of the alleged existence of delaying tactics on the part of PEM, which is at the base of the alleged misuse of the anti-dumping procedure by PEM. Moreover, the points of the contested decision which relate to the complaint regarding the misuse of the anti-dumping procedure are worded as follows: 'From the opening of the procedure, the Commission stressed the fact that recourse to a legitimate instrument of Community law, such as the procedure in dumping matters, cannot itself be considered an abuse within the meaning of Article 86 of the Treaty. So far as concerns the alleged attempt by PEM during the anti-dumping proceeding to send the Commission misleading information, it must be borne in mind that the anti-dumping procedure, and in particular Regulation No 2423/88, confers on the Commission the necessary powers to verify the information submitted by the interested parties in an investigation. In the present case, (the applicant) was fully involved in the proceeding and, furthermore, brought an action before the Court of First Instance against the regulation as adopted by the Council. It is for the Court, and not the Commission, to decide whether the measures adopted against China and Russia are well founded. Accordingly, that aspect of the complaint must be rejected. 201. It must be pointed out that the abovementioned points, read with the decision as a whole, contain the reasons for which the complaint relating to misuse of the anti-dumping procedure was rejected and enabled the applicant to ascertain sufficiently the reasons for the measure in order to defend its rights. First, the Commission takes a position on the legal possibility of considering resort to the anti-dumping procedure as contrary to Article 86 and, second, it states its position on the legality of the anti-dumping procedure as such. 202. The applicant was, therefore, in a position to identify the facts and legal considerations having decisive importance in the context of the decision. 203. It follows that sufficient reasons were given for the contested decision. The complaint under consideration must therefore be rejected. (b) Infringement of Article 86 of the Treaty Arguments of the parties 204. The applicant criticises the decision in so far as it states that recourse to a legitimate instrument of Community law, such as the procedure in dumping matters, cannot itself be considered to constitute an abuse within the meaning of Article 86 of the Treaty. Such an assertion, maintained since the beginning of the proceeding, does indeed signal the absence of any examination of possible links between the anti-dumping proceeding and PEM's conduct vis-à-vis its competitor. 205. The applicant submits that the main question before DG IV was to ascertain to what extent PEM abused its dominant position by resorting to the anti-dumping procedure simultaneously with its exclusion policy. In that regard, the investigations undertaken by the Commission are inadequate inasmuch as they only checked whether the documents forwarded by PEM during the 'anti-dumping and 'competition investigations agreed with each other and were consistent. 206. The applicant relies on 91/299/EEC: Commission Decision of 19 December 1990 relating to a proceeding under Article 86 of the EEC Treaty (IV/33.133-C: Soda-ash - Solvay) (OJ 1991 L 152, p. 21, 'the Solvay Decision), in which the Commission pointed out the impact which its intention to maintain anti-dumping measures can have on the commercial policy of an undertaking, and on the Extramet II judgment, in which the Court of Justice acknowledged the close link between the field of dumping and the field of competition when assessing the validity of an anti-dumping regulation and annulled a regulation imposing definitive anti-dumping duties on the ground that Community institutions had not considered the possibility that PEM might have contributed to the damage suffered as a result of its refusal to sell to the applicant. In his Opinion, Advocate General Jacobs moreover made clear that the institutions must take account of relevant competition-policy considerations in dumping cases (Opinion of Advocate General Jacobs in Extramet II, ECR I-3828). 207. The applicant points out the factors which demonstrate PEM's intention to use the anti-dumping procedure to exclude IPS from the market. 208. The correlation between the stages of the anti-dumping procedure and the various stages of the relations between PEM and IPS are particularly revealing. Thus, the applicant points out, first of all, that, at the start of the anti-dumping proceeding, PEM had offered to deliver to it high-quality primary calcium metal in exchange for an undertaking that it would not contest the anti-dumping proceeding. Second, the applicant submits that, throughout the proceeding, PEM sent out conflicting messages. On the one hand, PEM asked the Commission to introduce anti-dumping duties, explaining that it was not able to develop the primary calcium metal which the applicant expected whilst, on the other hand, PEM told the applicant that itwas still working on developing a product which suited its plant. Finally, the applicant points out that, shortly after the adoption of the provisional anti-dumping duties, relations between PEM and the applicant were re-established, but that PEM had abandoned any possibility of producing a suitable standard primary calcium metal since the adoption of definitive anti-dumping duties. 209. The Commission observes that PEM's recourse to the anti-dumping procedure may be explained by an intention to re-establish fair prices on the Community market just as well as by one to supply its customers both on the primary calcium metal market and the broken calcium metal market. PEM thus had a commercial interest in supplying the applicant. 210. The intervener challenges both the existence and the nature of any interaction, as claimed by the applicant, between the 'anti-dumping and 'competition aspects of the various proceedings. According to the intervener, such a statement from the applicant is surprising inasmuch as IPS objected to the Court's proposal to stay proceedings in Case T-2/95 until the written procedure in the present case had been concluded, on the ground that the investigation undertaken by DG IV bore no relation to that undertaken by Directorate-General 'External Relations (DG I). Findings of the Court 211. The applicant submits, first of all, that the main matter to verify was the extent to which PEM had abused a dominant position by resorting to the anti-dumping procedure simultaneously with the practice allegedly adopted by it and aimed at excluding IPS from the relevant market. 212. However, it has been held, during the examination of the second and third pleas in law, that PEM did not abuse its dominant position by policies excluding IPS. Accordingly, the applicant's argument is unfounded given that the factor on which it relies, namely the existence of policies of exclusion, has not been established. 213. As regards, next, the applicant's argument that recourse to the anti-dumping procedure by PEM of itself constitutes an abuse of a dominant position, it must be pointed out that recourse to a remedy in law and, in particular, participation by an undertaking in an investigation conducted by the Community institutions, cannot be deemed, of itself, to be contrary to Article 86 of the Treaty. In the present case, the anti-dumping procedure aims to re-establish undistorted competition in the market in the interest of the Community and is reflected in a thorough investigation conducted by the Community institutions during which the interested parties are heard and which may lead to the adoption of a binding Community measure. To assert that mere recourse to such a procedure is, of itself, contrary to Article 86 of the Treaty amounts to denying undertakings the right to avail themselves of legal instruments established in the interest of the Community. 214. Moreover, the factors relied upon by the applicant in order to prove PEM's intention to use the anti-dumping procedure to exclude IPS from the market have not been established. Thus, the applicant has not adduced any evidence to show the claim that PEM asked it not to contest the anti-dumping procedure under way in exchange for an undertaking by PEM that it would deliver the expected product. That statement only appears in a letter from IPS dated 13 July 1993, which is formally denied by PEM in a letter of 19 July 1993. PEM's letter of 17 May 1993 cited by the applicant in the reply does no more than show that IPS gave undertakings to PEM without establishing that PEM had asked for them. 215. As to the existence of conflicting statements made by PEM to IPS and the Commission, it is sufficient to observe that, as the Commission states without being contradicted by the applicant, DG IV examined the information forwarded by PEM to DG I in the context of the anti-dumping investigation and it confirmed their veracity and consistency. 216. So far as concerns the applicant's argument that PEM abandoned the possibility of producing suitable standard primary calcium metal as from the adoption of the definitive anti-dumping duties, it need merely be observed that, as held in paragraphs 92 to 95 of the present judgment, PEM did not abandon any such possibility and succeeded in offering to IPS on 21 June 1995 low-oxygen primary calcium metal suited to IPS's needs. 217. Finally, the applicant has no basis for relying on the Solvay Decision, cited above, since, in that decision, the intention of the undertaking concerned to maintain anti-dumping measures was only mentioned by the Commission in the factual part of that decision and the Commission drew no conclusions in law from it. Furthermore, the facts were different because the Solvay case concerned deliberate attempts to mislead the inquiry in the context of a proven strategy to exclude competitors from the market. So far as concerns the Extramet II judgment and the Opinion of Advocate General Jacobs in that case, cited above, although it is true that annulment of the disputed regulation is the penalty for the failure on the part of the Community institutions to inquire into the possibility that PEM might have contributed to the damage suffered, the Court of Justice has not prejudged the conclusion on that point of the examination by the Community authorities. That examination of PEM's conduct was carried out by the Commission during the second anti-dumping investigation, which led to the adoption of Regulation No 2557/94, and made it clear that PEM's conduct had not contributed to the damage to the Community industry. That analysis is confirmed by the Court of First Instance in Case T-2/95 Industrie des Poudres Sphériques v Council, cited above. 218. It follows that the Commission has not committed a manifest error of assessment amounting to infringement of Article 86 of the Treaty in concluding that PEM's participation in the anti-dumping procedure did not constitute abuse of a dominantposition the purpose of which was to exclude IPS from the European market in calcium metal. 219. Accordingly, the first plea in law must be dismissed. The fourth plea in law: breach of essential procedural requirements Arguments of the parties 220. The applicant accuses the Commission of having infringed essential procedural requirements during the procedure leading to the adoption of the decision by its refusal to forward to it certain items in the file which that institution used in forming its view. 221. The applicant requested the Commission, by letter of 15 April 1996, to send it various documents mentioned in the communication of 18 March 1996 issued pursuant to Article 6 of Regulation No 99/63. They consist, first, of documents showing that PEM studied all the technical propositions and arguments submitted by the applicant and carried out several trials of a modified process and, second, internal memoranda provided to DG IV by PEM in order to underline the urgent nature of the changes to be made in its factory. One such request was rejected by the Commission by letter of 7 June 1996 by reason of the confidential nature of the documents requested. However, according to the applicant, those documents could not be considered to be confidential vis-à-vis itself inasmuch as they relate to work intended to ensure for it a satisfactory supply. They should therefore have been forwarded to it. 222. The Commission contends that the decision clearly sets out all the factors on the basis of which the institution rejected the applicant's complaint and that a complainant cannot use a contentious procedure in order to obtain documents containing business secrets to which it has not been able to gain access in the context of an administrative procedure. 223. The applicant responds by saying that the Commission effectively based itself on PEM's internal documents and memoranda in order to demonstrate that undertaking's intention to deliver to it the calcium it had ordered and that in the present case it is not a question of requesting the Court of First Instance to order the production of confidential documents but of only ascertaining whether the Commission could, on its own authority, decide not to forward certain documents to a complainant. 224. In that respect, the applicant compares the solution established in the judgment of the Court of Justice in Joined Cases 142/84 and 156/84 BAT and Reynolds v Commission [1987] ECR 4487, paragraphs 19 and 20, with the practice of DG IV affirmed in the judgment of the Court of First Instance in Case T-36/91 ICI vCommission [1995] ECR II-1847, paragraphs 102 and 103, and concludes that it is possible to maintain the confidentiality of certain documents by deleting, in accordance with the directions of the author of the document, the sensitive passages before forwarding the documents to interested third parties. The applicant also cites the order of the Court of First Instance in Case T-90/96 Peugeot v Commission [1997] ECR II-663, in which the Commission informed the undertaking of its intention to communicate its replies to the complainants and asked the undertaking to identify, giving its reasons, which items of information it wished to be treated as confidential. According to the applicant, the Commission should have acted in this way in the present case. 225. The Commission points out that, in its letter rejecting the request for the abovementioned documents, dated 7 June 1996, it mentioned the possibility of referring the matter to the hearing officer, which IPS did not believe it had to do. 226. The applicant counters by saying that it did indeed request that the matter be referred to the hearing officer in its letter of 15 April 1996 but that it was discouraged from pursuing that course of action by the Commission's reply of 7 June 1996 which made it clear that such a step did not appear appropriate in that it would not succeed, in the present case, in changing the Commission's point of view previously set out in the Commission's communication issued pursuant to Article 6 of Regulation No 99/63, in the light of the factual and legal elements in the file. Findings of the Court 227. It should be noted at the outset that the applicant had the procedural opportunity of referring the matter to the hearing officer in order to obtain the requisite documents but did not, however, do so. In that regard, the applicant is wrong in claiming that, in its letter of 7 June 1996, the Commission had discouraged it from referring the matter to that officer. On the contrary, the Commission official responsible for that case invited the applicant to make such a reference stating: 'Should you continue to find that you cannot agree with the position expressed above with regard to your request to be granted additional access to certain documents in the file and from the hearing, I suggest you make an application to the hearing officer in accordance with the procedure provided for in Commission Decision 94/810/ECSC, EC of 12 December 1994 on the terms of reference of hearing officers in competition procedures before the Commission (OJ 1994 L 330, p. 67). There was nothing, therefore, to prevent the applicant from deciding that it was appropriate to make such a reference, even though that procedure is not obligatory. 228. Next, it should be observed that, in its letter of 7 June 1996, the Commission informed the applicant that the documents requested by IPS 'concernedmanufacturing processes specific to a competing supplier, its costs and cost price, customers, price and sales. That information was obtained under the powers conferred on the Commission by Regulation (No 17) and is confidential. 229. It has been consistently held that the principle that there must be full disclosure in the administrative procedure before the Commission for the application of competition rules to undertakings applies only to undertakings which may be penalised by a Commission decision finding an infringement of Article 85 of the EC Treaty (now Article 81 EC) or Article 86 of the same Treaty, since the rights of third parties, as laid down by Article 19 of Regulation No 17, are limited to the right to participate in the administrative procedure (judgment of the Court of Justice in Joined Cases 142/84 and 156/84 BAT and Reynolds v Commission [1987] ECR 4487, paragraphs 19 and 20). It follows that the Commission enjoys some latitude in taking account, in its decision, of the written observations and any oral observations presented by third parties. In particular, contrary to the applicant's contention, third parties cannot claim a right of access to the file held by the Commission on the same basis as the undertakings under investigation (judgment of the Court of Justice in Case 53/85 Akzo v Commission, cited above, paragraphs 27 and 28, and Case T-17/93 Matra Hachette v Commission [1994] ECR II-595, paragraph 34). In that regard, the Court of Justice has held that a complainant may not in any circumstances be given access to documents containing business secrets (AKZO v Commission, cited above, paragraph 28, and Joined Cases 142/84 and 156/84 BAT and Reynolds v Commission, cited above, paragraph 21). 230. In any event, in the present case, the information contained in the documents which were not communicated to the applicant was to be found either in the decision or in the other documents sent to the applicant. Failure to communicate the documents in question does not, therefore, mean that the procedure as a whole was improper. 231. So far as concerns the documents showing that PEM studied all the technical propositions and arguments submitted by the applicant and carried out several trials of a modified process, it must be pointed out that the Commission, in its decision, sets out in detail the facts on which it bases itself (page 14 of the decision) and that the applicant was already aware of those facts, in particular through PEM's letter of 20 May 1994 to IPS. 232. So far as concerns the urgent nature of the changes to be made in its factory, it is sufficient to point out that, assuming that proving such urgency is essential in order to substantiate the applicant's complaint, the Commission has proved that the changes were urgent by basing itself on documents in the file, namely the replies to IPS's letters, which had been transmitted to the applicant within the proper time-limits (see page 14 of the decision). 233. Accordingly, even if the Commission had not had available the documents which IPS had asked for, the outcome would have been the same. It follows that the applicant's rights have not been infringed. 234. The fourth plea in law must therefore be rejected. 235. It follows from all the foregoing that the application must be dismissed in its entirety. Costs 236. Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful, the applicant must be ordered to pay the Commission the costs as applied for by the latter. 237. The intervener PEM has applied for the applicant to be ordered to pay the costs of its intervention. In the circumstances of the case, the applicant must be ordered to pay the costs incurred by PEM. On those grounds, THE COURT OF FIRST INSTANCE (Fifth Chamber, Extended Composition) hereby: 1. Dismisses the application; 2. Orders the applicant to bear its own costs and pay those of the Commission and of the intervener Péchiney Électrométallurgie. García-Valdecasas Lindh Cooke Vilaras Forwood Delivered in open court in Luxembourg on 30 November 2000. H. Jung P. Lindh Registrar President Table of contents Facts II - 2 A. The product in question II - 2 B. The undertakings concerned II - 4 C. Case C-358/89 Extramet Industrie v Council II - 4 D. Case T-2/95 Industrie des Poudres Sphériques v Council II - 4 E. Relations between IPS and PEM II - 5 F. Administrative procedure before the Commission II - 5 Procedure before the Court and forms of order sought by the parties II - 7 Substance II - 8 The second and third pleas in law alleging errors of fact, manifest errors of assessment and infringement of Article 86 of the EC Treaty inasmuch as the Commission refused to find that PEM had employed delaying tactics II - 9 1. Whether the Commission committed a manifest error of assessment in taking the view that there were alternative sources of supply (fourth part of the third plea) II - 9 Arguments of the parties II - 9 Findings of the Court II - 10 2. Whether the Commission committed errors of fact, manifest errors of assessment and infringed Article 86 of the Treaty by finding that PEM did actually attempt to supply IPS with calcium metal (first part of the second plea in law and in the first three parts of the third plea) II - 11 (a) PEM's difficulty in resolving the problem posed by the manufacture of a product suited to IPS's needs, a problem resolved by the other producers II - 13 Arguments of the parties II - 13 Findings of the Court II - 13 (b) IPS's special requirements II - 14 Arguments of the applicant II - 14 Findings of the Court II - 14 (c) The absence of any indication by the other producers of the oxygen content of their calcium metal II - 15 Arguments of the parties II - 15 Findings of the Court II - 15 (d) The exchange of correspondence as evidence of the efforts made by PEM II - 15 Arguments of the parties II - 15 Findings of the Court II - 16 (e) How the problem of lime contamination was dealt with II - 17 Arguments of the applicant II - 17 Findings of the Court II - 18 (f) The difficulty of arriving at a reliable method of analysis II - 19 Arguments of the applicant II - 19 Findings of the Court II - 19 (g) The effectiveness of PEM's changes II - 20 Arguments of the applicant II - 20 Findings of the Court II - 21 (h) The fact that the expert's reports confirmed that PEM had employed delaying tactics II - 22 Arguments of the applicant II - 22 Findings of the Court II - 23 (i) Conclusion II - 23 3. The abusive nature of PEM's offer of 21 June 1995 (second part of the second plea) II - 24 (a) The offer of a quality of primary calcium metal especially produced for the applicant II - 24 Arguments of the applicant II - 24 Findings of the Court II - 24 (b) Whether the context in which the offer of 21 June 1995 of nuclear calcium metal was made was taken into account II - 25 Arguments of the parties II - 25 Findings of the Court II - 26 (c) The unjustified nature of the additional cost of the product offered by PEM II - 27 Arguments of the parties II - 27 Findings of the Court II - 28 (d) The price proposed by PEM in its offer of 21 June 1995 purportedly excludes the applicant from the market II - 29 Arguments of the parties II - 29 Findings of the Court II - 31 The first plea in law: manifest error of assessment amounting to an infringement of Articles 86 and 190 of the Treaty, inasmuch as the Commission disregarded the link between PEM's delaying tactics and the use of the anti-dumping measures as an instrument of policy II - 33 1. Admissibility II - 33 Arguments of the Commission II - 33 Findings of the Court II - 34 Substance II - 34 (a) Infringement of Article 190 of the Treaty II - 34 Arguments of the parties II - 34 Findings of the Court II - 35 (b) Infringement of Article 86 of the Treaty II - 36 Arguments of the parties II - 36 Findings of the Court II - 38 The fourth plea in law: breach of essential procedural requirements II - 40 Arguments of the parties II - 40 Findings of the Court II - 41 Costs II - 43 1: Language of the case: French.