Judgment — ECLI:EU:T:2001:289
Date: 2001-12-13
Language of the case: English
Court formation: First Chamber
Based on: Treaty establishing the European Coal and Steel Community (1951)
Subject matter: Competition;Agreements, decisions and concerted practices;Steel industry;ECSC matters;Concerted practices;Prices;Agreements and concentrations
Concepts: Principle of equality and non-discrimination;Agreements and concentrations. Interference with conditions of competition;Publication of prices
Procedure: Action for annulment - unfounded;Appeal against penalty - successful
Origin: Spain

Summary of the Judgment 
1. ECSC — Agreements, decisions and concerted practices — Prohibited — Infringe­
ment — Proof thereof — Evidentiary burden on the Commission — Exception — 
Participation of the allegedly offending undertaking in meetings of an anti-competitive 
nature — Reversal of the burden of proof 
(ECSC Treaty, Art. 65) 
2. ECSC — Agreements, decisions and concerted practices — Prohibited — Cartels 
continuing to produce their effects after their formal termination — Application of 
Article 65 of the ECSC Treaty 
(ECSC Treaty, Art. 65; EC Treaty, Art. 85 (now Art. 81 EC)) 
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SUMMARY — CASE T-48/98 
3. ECSC — Agreements, decisions and concerted practices — Fines — Amount — 
Determination thereof — Criteria — Gravity of infringements — Appraisal — 
Need to take account of turnover of undertakings concerned — None — Impact of 
earlier decision-making practice of the Commission — None 
(ECSC Treaty, Art. 65(5)) 
4. ECSC — Agreements, decisions and concerted practices — Fines — Amount — 
Determination thereof — Criteria — Gravity of infringements — Appraisal — 
Account to be taken of the economic power of the undertaking — Influence of 
market shares held by the undertaking concerned 
(ECSC Treaty, Art. 65(5)) 
5. ECSC — Prices — Price lists — Compulsory publication — Purposes — Connec­
tion with the principle of prohibition of anti-competitive conduct 
(ECSC Treaty, Arts 60 and 65(1)) 
6. ECSC — Agreements, decisions and concerted practices — Prohibited — Scope — 
Agreements relating to fixing of part of the final price — included 
(ECSC Treaty, Art. 65(1)) 
7. ECSC — Agreements, decisions and concerted practices — Fines — Amount — 
Determination thereof — Criteria — Attitude of the undertaking during the admin­
istrative proceeding — Appraisal of the extent of the cooperation afforded by each of 
the undertakings involved in the cartel — Observance of the principle of equal 
treatment — Difference of treatment based on the order in which the undertakings 
each admitted the facts — Not permissible 
(ECSC Treaty, Art. 65(5)) 
1. Where there is a dispute as to the 
existence of an infringement of the 
competition rules, it is incumbent on 
the Commission to prove the infringe­
ments which it has found and to 
adduce evidence capable of demon­
strating to the requisite legal standard 
the existence of circumstances consti­
tuting an infringement 
However, once it has been established 
that an undertaking has participated in 
meetings of a manifestly anti-competi­
tive nature between undertakings, it is 
incumbent on that undertaking to put 
forward evidence to establish that its 
participation in those meetings was 
without any anti-competitive intention 
by demonstrating that it had indicated 
to its competitors that it was partici­
pating in those meetings in a spirit that 
was different from theirs. In the 
absence of proof of such distancing, 
the fact that that undertaking does not 
abide by the outcome of those meetings 
is not such as to relieve it from full 
responsibility for the fact that it parti­
cipated in the cartel. 
(see paras 29-30) 
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ACERINOX v COMMISSION 
2. With regard to cartels which are no 
longer in operation, it is sufficient, for 
Article 85 of the EC Treaty (now 
Article 81 EC) and, by analogy, Arti­
cle 65 of the ECSC Treaty, to be 
applicable, that they continue to pro­
duce their effects after they have for­
mally ceased to be in force. The same 
applies a fortiori where the effects of 
the agreement lasted until the adoption 
of the decision finding the infringement 
without the agreement having been 
formally brought to an end. 
(see para. 63) 
3. The Commission is not required to 
appraise the gravity of an infringement 
of the principle of the prohibition of 
cartels by reference to the turnover of 
each of the companies concerned: no 
such criterion is imposed by Arti­
cle 65(5) of the ECSC Treaty or by 
the applicable guidelines. It is clear 
from both Article 65(5) of the ECSC 
Treaty and the guidelines that the 
turnover of the undertakings concerned 
is to be considered by the Commission 
only for the purpose of observing the 
maximum limit on the final amount of 
the fine. 
In that connection, any reference to the 
previous decision-making practice of 
the Commission is irrelevant. First, that 
practice, however consistent, cannot in 
itself provide a legal framework for the 
method of calculating fines since, as the 
infringements are covered by Article 65 
of the ECSC Treaty, that method is 
defined by Article 65(5). Second, in 
view of the discretion granted to the 
Commission by Article 65(5) of the 
ECSC Treaty, the Commission cannot 
be criticised for having introduced a 
new method for calculating fines, pro­
vided that the fines do not exceed the 
maximum limit laid down by Arti­
cle 65(5) of the ECSC Treaty. 
(see paras 82-85) 
4. The factors on the basis of which the 
gravity of an infringement may be 
assessed may, depending on the cir­
cumstances, include the volume and 
value of the goods in respect of which 
the infringement was committed and 
the size and economic power of the 
undertaking. 
In that regard, whilst it is true that an 
undertaking's market shares may be 
relevant in order to determine what 
influence it may exert on the market, 
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SUMMARY — CASE T-48/98 
they cannot be a decisive factor in 
concluding that an undertaking 
belongs to a powerful economic entity. 
(see paras 88-89) 
5. The purpose of the compulsory pub­
lication of lists of prices under Arti­
cle 60(2) of the ECSC Treaty is, first, as 
far as possible to prevent prohibited 
practices; second, to enable purchasers 
to learn exactly what prices will be 
charged and be able themselves to 
check whether any discrimination has 
taken place, and; third, to enable 
undertakings to have accurate knowl­
edge of the prices of their competitors 
so as to enable them to align their 
prices. However, the prices appearing 
in the price lists must be fixed by each 
undertaking independently, without 
any agreement, even tacit, between 
them. In particular, the fact that the 
provisions of Article 60 tend to restrict 
competition does not prevent applica­
tion of the prohibition of agreements 
under Article 65(1) of the ECSC 
Treaty. 
(see paras 107-108) 
6. The prohibition of agreements which, 
directly or indirectly, involve price 
fixing also extends to agreements relat­
ing to the fixing of a part of the final 
price. 
(see para. 115) 
7. As regards appraisal of the cooperation 
shown by undertakings during an 
administrative procedure initiated in 
relation to a prohibited agreement, the 
Commission is not entitled to disregard 
the principle of equal treatment, a 
general principle of Community law 
which is infringed only where compar­
able situations are treated differently or 
different situations are treated in the 
same way, unless such difference of 
treatment is objectively justified. 
The mere fact that one of the under­
takings participating in the cartel was 
the first to acknowledge the contested 
facts in response to the questions put 
by the Commission cannot constitute 
an objective reason for treating them 
differently. The appraisal of the extent 
of the cooperation shown by under­
takings cannot depend on purely ran­
dom factors, such as the order in which 
they are questioned by the Commis­
sion. The extent of the cooperation 
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ACERINOX v COMMISSION 
provided by the undertakings con­
cerned must be regarded as compar­
able, in so far as those undertakings 
provided the Commission, at the same 
stage of the administrative procedure 
and in similar circumstances, with 
similar information concerning the 
conduct imputed to them. 
(see paras 131, 139-140) 
II - 3863