Judgment — ECLI:EU:T:2001:288
Date: 2001-12-13
Language of the case: German
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: Acts of the institutions;Ancillary procedures and applications;Measures of inquiry and measures of organisation of procedure;Principle of equality and non-discrimination;Agreements and concentrations. Interference with conditions of competition;Publication of prices;Pleas in law
Procedure: Action for annulment - unfounded;Action for annulment - successful;Appeal against penalty - successful
Origin: Germany;Italy

Summary of the Judgment 
1. Procedure — Measures o f organisation o f procedure — Request for the production of 
documents — Obligations of the person making the request 
(Rules of Procedure of the Court of First Instance, Art. 64(3)(d) and (4)) 
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SUMMARY — JOINED CASES T-45/98 AND T-47/98 
2. Procedure — ECSC — File transmitted by an institution to the Community judica­
ture under Article 23 of the Statute of the Court of Justice — Right of access — 
Access to internal documents — Conditions 
(ECSC Statute of the Court of Justice, Art. 23) 
3. ECSC — Decision imposing a fine or periodic penalty payment — Administrative 
procedure — Access to the file — Purposes — Limits — Confidential documents 
(ECSC Treaty, Art. 36, first para.) 
4. ECSC — Decision imposing a fine or periodic penalty payment — Administrative 
procedure — Access to the file — Inapplicability of principles governing judicial 
procedure — Consequence 
(ECSC Treaty, Art. 36, first para.) 
5. ECSC — Community competition rules — Infringements — Attribution of respon­
sibility — Natural or legal person responsible for the operation of the undertaking at 
the material time — Exception — Strict interpretation — Consequence 
(ECSC Treaty, Arts 36, first para., and 65) 
6. ECSC — Decision imposing a fine or periodic penalty payment — Administrative 
procedure — Operative part and reasoning of decision — Changes after notification 
to addressee — Not permissible 
(ECSC Treaty, Art. 15, second para.) 
7. ECSC — Prices — Price lists — Compulsory publication — Purposes — Connec­
tion with principle of prohibition of anti-competitive conduct 
(ECSC Treaty, Arts 60 and 65(1)) 
8. Actions for annulment — Action brought by an undertaking under the ECSC 
Treaty — Pleas in law — Pleas involving matters of public policy — Absence or 
inadequacy of reasons stated — Consequences 
(ECSC Treaty, Art. 33, second para.) 
9. Acts of the institutions — Statement of reasons — Obligation — Appraisal — 
Purposes — ECSC decision 
(ECSC Treaty, Art. 15) 
10. ECSC — Agreements, decisions and concerted practices — Prejudicial to competi­
tion — Anti-competitive object — Sufficient to establish the existence thereof 
(ECSC Treaty, Art. 65(1)) 
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KRUPP THYSSEN STAINLESS AND ACCIAI SPECIALI TERNI v COMMISSION 
11. ECSC — Agreements, decisions and concerted practices — Prohibited — Scope — 
Agreements relating to fixing of part of the final price — Included 
(ECSC Treaty, Art. 65(1)) 
12. 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)) 
13. ECSC — Community competition rules — Infringements — Gravity — Apprai­
sal — Factors relating to the intentional aspect of conduct more significant than 
those relating to its effects — Committed intentionally — Meaning 
(ECSC Treaty, Art. 65) 
14. 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» 
15. ECSC — Agreements, decisions and concerted practices — Concerted practices — 
Meaning — Criteria of coordination and cooperation — Interpretation 
(ECSC Treaty, Art. 65(1)) 
16. ECSC — Agreements, decisions and concerted practices — Fines — Amount — 
Determination thereof — Criteria — Attitude of the undertaking during the admin­
istrative proceeding — Absence of an express statement that it was not contesting the 
Commission's allegation of a concerted practice — Not conducive to facilitating the 
Commission's task of finding infringements 
(ECSC Treaty, Art. 65(5)) 
1. Under Article 64(3)(d) and (4) of the 
Rules of Procedure of the Court of First 
Instance, the adoption of measures of 
organisation of procedure may be pro­
posed by the parties at any stage of the 
procedure and they may consist of 
requests that documents or any papers 
relating to the case be produced. How­
ever, to enable the Court to determine 
whether it is conducive to the proper 
conduct of the procedure to order the 
production of certain documents, the 
party requesting production must not 
only identify the documents requested 
but also provide the Court with at least 
minimum information indicating the 
utility of those documents for the 
purposes of the proceedings. 
(see paras 30-31) 
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SUMMARY — JOINED CASES T-45/98 AND T-47/98 
2. The purpose of Article 23 of the ECSC 
Statute of the Court of Justice, con­
cerning the transmission to the Com­
munity judicature of documents relat­
ing to the case before it, is to enable the 
Community judicature to review the 
legality of the contested decision whilst 
ensuring that the rights of the defence 
are observed, and not to guarantee 
unconditional and unlimited access for 
all parties to the administrative file. 
In particular, in the course of the 
proceedings before the Court internal 
Commission documents are not to be 
communicated to the applicants unless 
the circumstances of the case are 
exceptional and the applicants make 
out a plausible case for the need to do 
so. 
(see paras 33-34) 
3. For the purpose of applying the com­
petition rules of the EC Treaty, the 
purpose of access to the file is in 
particular to enable the addressees of 
a statement of objections to acquaint 
themselves with the evidence in the 
Commission's file, so that they can 
express their views effectively, on the 
basis of that information, on the con­
clusions reached by the Commission in 
its statement of objections. It follows 
that the Commission has an obligation 
to make available to the undertakings 
to which a statement of objections has 
been addressed all documents, whether 
in their favour or otherwise, which it 
had obtained during the course of the 
investigation, with the exception of 
confidential documents, such as the 
internal documents of the Commission. 
Those considerations are equally valid 
for the purpose of applying the compe­
tition rules of the ECSC Treaty. 
(see paras 45-46) 
4. Just as the general principles of Com­
munity law governing, in competition 
cases, the right of access to the Com­
mission's file during the administrative 
procedure do not apply, as such, to the 
procedure before the Court, the provi­
sions governing the procedure before 
the Court cannot be applied to the 
administrative procedure before the 
Commission. Therefore, the Commis­
sion is not obliged to make internal 
documents available during the admin­
istrative procedure. 
(see paras 47-48) 
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KRUPP THYSSEN STAINLESS AND ACCIAI SPECIALI TERNI v COMMISSION 
5. It falls, in principle, to the legal or 
natural person managing the undertak­
ing in question when the infringement 
of the Community competition rules 
was committed to answer for that 
infringement, even if, when the deci­
sion finding the infringement was 
adopted, another person had assumed 
responsibility for running the under­
taking. 
That is not the case, however, when the 
person subsequently managing the 
undertaking in question makes a state­
ment accepting responsibility for the 
conduct for which his predecessor was 
criticised. Such a statement, which in 
particular takes account of economic 
considerations specific to concentra­
tions of undertakings, implies that the 
legal person within whose sphere of 
responsibility the business of another 
legal person was brought after the date 
of the infringement deriving from that 
business should be required to be 
answerable for it, even though, in 
principle, it is incumbent upon the 
natural or legal person running the 
undertaking concerned at the time of 
the infringement to answer for it. 
However, in so far as it constitutes an 
exception to the principle that a nat­
ural or legal person may be penalised 
only for acts imputed to it individually, 
such a statement must be interpreted 
strictly. In particular, unless he gives 
some indication to the contrary, the 
person making such a statement cannot 
be presumed to have waived the right 
to exercise his rights of defence and, in 
particular, his right to be heard regard­
ing the acts imputed to his predecessor 
in the statement of objections notified 
to the latter. 
(see paras 57, 62-64) 
6. The operative part and reasoning of the 
decision imposing a fine for infringe­
ment of the competition rules, as 
notified to the addressee or addressees 
of the decision, must correspond to 
those of the decision adopted by the 
College of Commissioners, exception 
being made for any corrections merely 
of spelling and grammar which may 
still be made to the text of an act after 
its formal adoption by that college. 
(see para. 73) 
7. The purpose of the compulsory pub­
lication of price lists and conditions of 
sale under Article 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 dis­
crimination has taken place; and, third, 
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SUMMARY — JOINED CASES T-45/98 AND T-47/98 
to enable undertakings to have accu­
rate knowledge of the prices of their 
competitors so as to enable them to 
align their prices. However, the prices 
on the 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 116-117) 
8. In an action for annulment, a plea 
alleging absence of reasons or inade­
quacy of the reasons stated for the 
adoption of a Community act involves 
a matter of public policy which must be 
raised by the Community judicature of 
its own motion and, consequently, may 
be raised by the parties at any stage of 
the procedure. 
(see para. 125) 
9. The statement of reasons required by 
Article 15 of the ECSC Treaty must, 
first, be such as to enable the person 
concerned to ascertain the matters 
relied upon to justify the measure 
adopted so that, if necessary, he can 
defend his rights and verify whether the 
decision is well founded and, secondly, 
enable the Community judicature to 
exercise its power of review of legality. 
The requirement of a statement of 
reasons must be viewed in the context 
of the circumstances of the case, in 
particular the terms of the measure in 
question, the nature of the reasons 
relied on and the context in which the 
measure was adopted. 
(see para. 129) 
10. The Commission is not obliged to 
demonstrate that there was an adverse 
effect on competition in order to estab­
lish an infringement of Article 65(1) of 
the ECSC Treaty provided that it has 
established the existence of an agree­
ment or concerted practice intended to 
restrict competition. 
(see para. 154) 
11. The prohibition of agreements and 
concerted practices which directly or 
indirectly fix prices also extends to 
agreements relating to the fixing of a 
part of the final price. 
(see para. 157) 
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KRUPP THYSSEN STAINLESS AND ACCIAI SPECIALI TERNI v COMMISSION 
12. With regard to cartels which are no 
longer in force, 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, as in this case, 
the effects of the agreement lasted until 
adoption of the Decision finding the 
infringement, without the agreement 
having been formally brought to an 
end. 
(see para. 181) 
13. The gravity of infringements of the 
competition rules falls to be deter­
mined by reference to numerous factors 
including, in particular, the specific 
circumstances and context of the case 
and the deterrent character of the fines; 
moreover, no binding or exhaustive list 
of the criteria which must be applied 
has been drawn up. In that connection, 
factors relating to the intentional 
aspect, and thus to the object of a 
course of conduct, may be more sig­
nificant than those relating to its 
effects, particularly where they relate 
to infringements which are intrinsically 
serious, such as price-fixing. In parti­
cular, an infringement of the competi­
tion rules may be regarded as having 
been committed intentionally if the 
undertaking could not have been una­
ware that the object of its conduct was 
the restriction of competition. It is not 
therefore necessary for an undertaking 
to have been aware that it was infring­
ing those rules. 
(see paras 198-200) 
14. 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, according to settled case-law, is 
infringed only where comparable situa­
tions are treated differently or different 
situations are treated in the same way, 
unless such difference of treatment is 
objectively justified 
In that regard, the mere fact that one of 
the undertakings participating in the 
cartel was the first to acknowledge the 
contested facts in response to the 
questions put by the Commission can­
not constitute an objective reason for 
treating them differently. The appraisal 
of the extent of the cooperation shown 
by undertakings cannot depend on 
purely random factors, such as the 
order in which they are questioned by 
the Commission. The extent of the 
cooperation provided by the undertak­
ings concerned must be regarded as 
comparable, in so far as those under-
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SUMMARY — JOINED CASES T-45/98 AND T-47/98 
takings provided the Commission, at 
the same stage of the administrative 
procedure and in similar circum­
stances, with similar information con­
cerning the conduct imputed to them. 
(see paras 237, 245-246) 
15. The criteria of coordination and coop­
eration necessary for determining the 
existence of a concerted practice are to 
be understood in the light of the 
concept inherent in the Treaty provi­
sions on competition, according to 
which each trader must determine 
independently the policy which he 
intends to adopt on the common mar­
ket and the conditions which he intends 
to offer to his customers. 
(see para. 264) 
16. A reduction of a fine is justified only if 
the conduct of the undertaking con­
cerned enabled the Commission to 
establish the infringement more easily 
and, where relevant, bring it to an end. 
However, in the absence of an express 
statement that it is not contesting the 
Commission's allegation of a concerted 
practice, an undertaking does not facil­
itate the Commission's task of finding 
and bringing to an end infringements of 
Community competition law. 
(see para. 270) 
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