Judgment — ECLI:EU:C:1998:608
Date: 1998-12-17
Language of the case: German
Court formation: Full Court
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Concepts: General;Appeals;Determining the amount of the fine;Admissibility and examination of applications, forms of order sought and pleas in law;Measures of inquiry and measures of organisation of procedure;Right to a judicial remedy
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible;Appeal - successful
Origin: Germany

Summary
I — Facts and procedure I - 8424
II — The judgment appealed against I - 8427
III —The appeal I-8427
IV — Discussion of the pleas in support of the appeal I - 8429
A — First plea: failure to give judgment within a 'reasonable time' I - 8429
1. Admissibility of the plea I - 8429
(a) The provision relied upon I - 8429
(b) The nature of'theplea I - 8432
(c) The measure sought I - 8433
2. The scope of the plea I - 8434
3. Action for liability as the appropriate remedy I - 8437
B— Second plea: infringement of the so-called principle of 'orality' I - 8439
C — Third plea: breach of the principles applying in the matter
of evidence I - 8443
1. The criterion for examination by the Court of First Instance I - 8444
2. The obligation on the Court of First Instance to 'examine the case' and
the 'fair hearing' principle I - 8446
3. The principles of 'unfettered assessment of evidence' and 'benefit of the
doubt' 1-8449
4. Reasons for refusing offers of evidence I - 8449
D — Fourth plea: breach of the rules concerning offers of evidence out
of time I - 8450
E — Fifth plea: infringement of the right of access to the file I - 8452
* Original language: French.
I - 8422
BAUSTAHLGEWEBE v COMMISSION
F — Sixth plea: infringement of Article 85(1) of the Treaty I - 8457
1. Demarcation of the market I - 8457
2. Application of Article 85(1) of the Treaty to the alleged agreement
between BStG and Tréfilunion I-8460
3. Application of Article 85(1) of the Treaty to the alleged quota and price
agreements between BStG and the Benelux producers I - 8462
4. Non-application of Regulation No 67/67 to the exclusive distribution
agreements between BStG, on the one hand, and Bouwstaal Roermond
BV and Arbed SA afdeling Nederland, on the other I-8464
5. Application of Article 85(1) of the Treaty to the quota and price agree­
ments for the Benelux market I - 8468
G — Seventh plea: breach of Article 15 of Regulation No 17 I - 8472
1. No separate assessment of mitigating and aggravating circumstances .. I - 8473
2. The allegation that BStG took part in the structural crisis cartel I - 8476
3. BStG's lack of awareness that the structural crisis cartel and the conduct
aiming to protect it were illegal I - 8478
4. Disproportionate fine I - 8479
(a) Excessive length of the proceedings I - 8481
(b) Fine disproportionate by reference to share capital I - 8481
(c) Failure to treat the structural crisis cartel as a mitigating
circumstance I - 8482
(d) Breach of the principle of equality I - 8482
(e) No justification for taking account of the market-share criterion in
fixing the fine I - 8483
(f) No justification for taking account of total turnover I - 8483
H — Alternative claim for reduction of the fine to a reasonable amount I - 8484
Conclusion I - 8484
I - 8423
OPINION OF MR LÉGER — CASE C-185/95 P
1. By this appeal Baustahlgewebe GmbH
('BStG' or 'the appellant'), a company incor­
porated under German law, is asking the
Court to set aside the judgment of the Court
of First Instance of 6 April 1995 in Baustahl-
gewebe v Commission 1 'the judgment
appealed against' or 'the judgment'), partly
dismissing its application for the annulment
of Commission Decision 89/515/EEC of 2
August 1989 relating to a proceeding under
Article 85 of the EEC Treaty 2 ('the contested
Decision' or 'the Decision') and fixing the
fine imposed on the appellant at ECU 3 mil­
lion.
I — Facts and procedure
2. The product to which the Decision relates
is welded steel mesh. This is a prefabricated
reinforcement product made from smooth or
ribbed cold-drawn reinforcing steel wires
joined together by right-angle spot welding
to form a network. It is used in almost all
areas of reinforced concrete construction.
3. According to the contested Decision, there
are several types of welded steel mesh:
— mesh from stock or standard mesh (Lager­
oder Standardmatten),
— catalogue mesh (Listenmatten),
— tailor-made mesh (Zeichnungsmatten). 3
4. In paragraphs 2 and 3 of the judgment the
Court of First Instance found as follows:
' 2 As from 1980 a number of agreements
and practices, which gave rise to the
Decision, came into being in that sector
on the German, French and Benelux mar­
kets.
3 For the German market, on 31 May 1983
the Federal Cartel Office granted autho­
risation for the establishment of a struc­
tural crisis cartel of German producers
of welded steel mesh, which, after being
renewed once, expired in 1988. The pur­
pose of the cartel was to reduce capacity;
it also provided for delivery quotas and
price fixing, the latter being authorised,
however, only for the first two years of
1 — Case T-145/89 [1995] ECR 11-987.
2 — IV/31.553 —Welded steel mesh, OJ 1989 L 260, p. 1.
3 — See I, A, paragraph 3, of the Decision. According to the
Court of First Instance, the appellant recognises a fourth
type, that is to say, catalogue mesh of the semi-standardised
type ('Lettermatten'), which is similar to standard mesh (see
paragraph 38 of the judgment).
I - 8424
BAUSTAHLGEWEBE v COMMISSION
its operation (points 126 and 127 of the
Decision).'
5. In the contested Decision, the Commis­
sion fined 14 producers of welded steel mesh
for having, in the words of Article 1 of the
Decision, 'infringed Article 85(1) of the EEC
Treaty by participating from 27 May 1980
until 5 November 1985 on one or more occa­
sions in one or more agreements or concerted
practices (hereinafter referred to as "agree­
ments") consisting in the fixing of selling
prices, the restricting of sales, the sharing of
markets and in measures to implement these
agreements and to monitor their operation'.
6. With regard to the facts giving rise to the
action before the Court of First Instance, it
appears from the judgment that the contested
Decision criticises the appellant in particular
for:
on the German market:
— 'participation in agreements concerning
trade interpénétration between Germany
and France with the French undertaking
Trćfilunion. Those agreements were alleg­
edly concluded during a conversation of 7
June 1985 between Michael Müller 4and
Mr Marie, a director of Tréfilunion ...'.
The Court of First Instance adds that
'according to the Decision ... the conces­
sions made by each side at the meeting
were adhered to, as evidenced by the facts
that neither Tréfilunion nor the other
French producers complained to the Com­
mission about the German structural crisis
cartel and that the applicant's works at
Gelsenkirchen (Germany) did not export
catalogue mesh to France' and that 'any
future export business was to be linked to
a delivery quota'; 5
— with regard to 'the agreements intended
to protect the German structural crisis
cartel against uncontrolled imports of
welded steel mesh, ... having participated
in an agreement with Sotralentz con­
cerning quota arrangements for exports
by the latter to Germany'; 6
— 'having participated in agreements con­
cerning the German market intended, first,
to regulate exports by Benelux producers
to Germany and, secondly, to observe the
prices in force on the German market'; 7
4 — Chief ExcculivcofBStGandlcgalrcprcscntativcand chairman
of the Fachverband Bctonstahlmattcn (paragraph 25), which
is 'the professional association of the German welded steel
mesh manufacturers. Almost all manufacturers arc members'
(point 18, footnote 2, of the Decision).
5 — Paragraph 59.
6 — Paragraph 69.
7 — Paragraph 83.
I - 8425
OPINION OF MR LÉGER —CASE C-185/95 P
— '[in the] desire to restrict or regulate
imports into Germany ...', concluding two
supply contracts of 24 November 1976
and 22 March 1982 with Bouwstaai Roer­
mond BV (later Tréfilarbed Bouwstaai
Roermond) and Arbed SA afdeling Ned­
erland. 'In those contracts, BStG took
over exclusive sales in Germany, at a price
to be fixed according to specific criteria,
of a specified annual volume of welded
steel mesh from the Roermond works.
Bouwstaai Roermond BV and Arbed SA
afdeling Nederland undertook, for the
term of those contracts, not to make any
direct or indirect deliveries to Germany'. 8
'The Decision ... states that the exclusive
distribution agreements did not satisfy the
conditions of Commission Regulation
(EEC) No 67/67/EEC of 22 March 1967
on the application of Article 85(3) of the
Treaty to certain categories of exclusive
dealing agreements (OJ, English Special
Edition 1967, p. 10, ...), at least since the
making of the wider arrangements on trade
between Germany and Benelux. Since that
date those agreements had to be regarded
as part of a comprehensive market-sharing
arrangement ...'; 9
— 'having participated in an agreement with
Tréfilarbed stopping reexports of welded
steel mesh from the St Ingbert works to
Germany via Luxembourg'; 10
on the Benelux market:
— 'having participated in agreements between
the German producers exporting to the
Benelux States and the other producers
selling in the Benelux States concerning
observance of prices fixed for the Benelux
market. According to the Decision, those
agreements were decided on at meetings
held in Breda and Bunnik between August
1982 and November 1985 ...' 11'The Deci­
sion ... also criticises the applicant for
having participated in agreements between
the German producers, on the one hand,
and the Benelux producers (the "Breda
club"), on the other, consisting in the
application of quantitative restrictions to
German exports to Belgium and the Neth­
erlands and communication of export fig­
ures of certain German producers to the
Belgo-Dutch group.' 12
7. The Commission imposed on BStG a fine
of ECU 4.5 million.
8. On 20 October 1989 the appellant brought
an action for the annulment of the contested
Decision. By orders of 15 November 1989
the Court of Justice referred this case and 10
others connected with it to the Court of First
8 — Paragraph 95.
9 — Paragraph 96.
10 — Paragraph 110.
11 — Paragraph 123.
12 — Paragraph 124.
I - 8426
BAUSTAHLGEWEBE v COMMISSION
Instance pursuant to Article 14 of Council
Decision No 88/591/ECSC, EEC, Euratom,
of 24 October 1988 establishing a Court of
First Instance of the European Communi­
ties. 13
9. BStG claimed that the Court should annul
the provisions of the Decision applying to it
or, alternatively, that the fine should be reduced
to a reasonable amount, and that the Com­
mission should be ordered to pay the costs.
BStG also sought authorisation to examine
certain documents relating to the procedure
before the Commission and to the relations
between the Commission, the Bundeskartel­
lamt and the representatives of the German
cartel association concerning the structural
crisis cartel.
10. The Commission claimed that the Court
of First Instance should dismiss the applica­
tion as unfounded and order the appellant to
pay the costs.
11. In support of its application the appellant
put forward three pleas in law alleging breach
of the rights of the defence, infringement of
Article 85(1) of the Treaty and infringement
of Article 15(2) of Council Regulation No
17. 14
II — The judgment appealed against
12. The Court of First Instance gave judg­
ment annulling Article 1 of the contested
Decision 'as regards the finding therein that
the [appellant] participated in an agreement
with Sotralentz SA to set quotas for the lat-
ter's exports to the German market and the
finding that an agreement existed between the
[appellant] and Tréfilunion to make their
future exports subject to quotas'. Conse­
quently, the Court of First Instance reduced
the fine of ECU 4.5 million to ECU 3 mil­
lion and dismissed the application with regard
to the remaining claims.
III — The appeal
13. With its appeal, BStG asks the Court of
Justice, first, to set aside the judgment of the
Court of First Instance in so far as it fixes the
fine at ECU 3 million, dismisses its applica­
tion and orders it to pay part of the costs
and, second, to annul Articles 1, 2 and 3 of
the contested Decision in so far as they apply
to the appellant and were not annulled by
that judgment.
14. In the alternative, BStG asks that the fine
be reduced to a reasonable amount. It also
13 — OJ 1988 L 319, p. 1.
14 — Regulation of 6 February 1962, First Regulation imple­
menting Articles 85 and 86 of the Treaty (OJ, English Spe­
cial Edition 1959-1962, p. 87).
I - 8427
OPINION OF MR LÉGER — CASE C-185/95 P
seeks an order for costs against the Commis­
sion. 15
15. The Commission, for its part, seeks the
dismissal of the appeal and an order for costs
against the appellant.
16. In support of its appeal, BStG complains
that the Court of First Instance:
— infringed the appellant's right to legal pro­
tection within a 'reasonable period' because
of the excessive length of the proceedings;
— infringed the principle of 'orality' in that
the judgment was delivered 22 months
after the closure of the oral procedure;
— disregarded the principles applying in the
matter of proof;
— misapplied the provisions of the Rules of
Procedure concerning the offer of evi­
dence out of time;
— dismissed the appellant's request for access
to the Commission's files;
— misapplied Article 85(1) of the Treaty;
— contravened Article 15 of Regulation No
17 with regard to fixing the fine. 16
17. I shall examine each of these pleas in the
order given above, and as the first is the most
important I shall consider it at some length.
15 — French translation of the appeal, p. 2. 16 — Appeal, paragraph 6.
I - 8428
BAUSTAHLGEWEBE v COMMISSION
IV — Discussion of the pleas in support of
the appeal
A — First plea: failure to give judgment
within a 'reasonable time'
18. BStG contends that the time taken by the
Court of First Instance to give judgment on
its application was excessive, thus contra­
vening Article 6(1) of the European Conven­
tion for the Protection of Human Rights and
Fundamental Freedoms ('the Convention').
The appellant points out that the principle of
a 'fair hearing' laid down by that provision
comprises the right of any person to have his
action tried within a 'reasonable time'.
19. The appellant considers that the length of
the procedure was in no way due to the cir­
cumstances of the case but must, on the con­
trary, be attributed to the Court of First
Instance, and that such a delay constitutes a
procedural irregularity which justifies setting
aside the judgment and annulling the con­
tested Decision, as well as closure of the pro­
cedure. Alternatively, the appellant claims that
the excessive length of the procedure consti­
tutes in any event a 'ground for reducing the
penalty'.
20. The Commission does not agree that the
length of the procedure was excessive.
21. Before the Court considers the duration
of proceedings which may appear lengthy, as
almost five and a half years elapsed between
the lodging of the document instituting the
proceedings and the date of the judgment of
the Court of First Instance, including delib­
erations lasting almost 22 months, the Court
of Justice will have to decide whether BStG's
plea is admissible and, above all, examine the
implications of the plea with particular care.
22. The Court is, of course, familiar with the
provisions of the Convention. BStG's claims
argue for measures to which the Court nor­
mally has recourse when exercising its appel­
late jurisdiction. However, some difficulty
appears to arise with regard to the Court's
exercise of its power of annulment or the
power to reduce the fine in order to ensure
that Article 6 of the Convention is applied.
1. Admissibility of the plea
(a) The provision relied upon
23. One of the questions raised by this plea
concerns the Court's jurisdiction to take cog­
nisance of the principle on which it has based.
I - 8429
OPINION OF MR LÉGER — CASE C-185/95 P
24. With regard to the principles of the Con­
vention, the Court observed quite recently
that, 'as the Court has consistently held (see,
in particular, Opinion2/94 [1996] ECR I-1759,
paragraph 33), fundamental rights form an
integral part of the general principles of Com­
munity law whose observance the Court
ensures. For that purpose, the Court draws
inspiration from the constitutional traditions
common to the Member States and from the
guidelines supplied by international treaties
for the protection of human rights on which
the Member States have collaborated or of
which they are signatories. The Convention
has special significance in that respect. As the
Court has also held, it follows that measures
are not acceptable in the Community which
are incompatible with observance of the
human rights thus recognised and guaranteed
(see, in particular, Case C-260/89 ERT [1991]
ECR 1-2925, paragraph 41).' 17
25. Article F(2) of the Treaty on European
Union 18reaffirmed the European Union's
respect for the Convention, so that it is now
accepted that it is within the Court's remit to
secure respect for the rights recognised by the
Convention.
26. It is clear from the Court's case-law that
the Convention lays down rules all of which
are not merely safeguarded in Community
law by the Court. Those rules also guide the
Court in formulating fundamental principles
which are of the utmost importance in this
area.
27. It must also be observed that the consti­
tutional traditions common to the Member
States make a substantial contribution to the
development of these fundamental principles.
28. Like those traditions, the Convention is
the source which has inspired not only the
fundamental rights, but also the other general
principles of Community law. 19
17 — See the judgment in Case C-299/95 Kremzow [1997] ECR
I-2629, paragraph 14. For the development of the case-law,
see the judgments in Case 4/73 Nola v Commission [1974]
ECR 491, paragraph 13; Case 36/75 Rutili [1975] 1219, para­
graph 32; Case 63/83 Kirk [1984] ECR 2689, paragraph 22;
Case 257/85 Dufay v Parliament [1987] ECR 1561, para­
graph 10; and Case C-404/92 P X v Commission [1994]
ECR 1-4737, paragraph 17.
18 — Article F(2) provides that: 'The Union shall respect funda­
mental rights, as guaranteed by the European Convention
for the Protection of Human Rights and Fundamental Free­
doms signed in Rome on 4 November 1950 and as they
result from the constitutional traditions common to the
Member States, as general principles of Community law.'
19 — The distinction between fundamental rights and the'other
general principles of law is not an easy one to draw, par­
ticularly as both are safeguarded by the Convention in so far
as it aims to protect 'human rights and fundamental free­
doms' and makes no distinction between them. The criterion
for distinguishing the former from the latter may appear
from the idea that, 'by comparison with general principles,
the term "fundamental rights" is, on the contrary, reserved
for "human rights", i.e. the objective rights inherent in the
human person and of an essentially individual nature': J.-P.
Puissochet, 'La Cour de justice et les principes généraux du
droit', 10th Congress of the European Lawyers on Judicial
protection of rights within the Community system, Les
Annonces de la Seine, 10 October 1996, No 69, p. 3. Con­
cerning the Convention and national constitutional tradi­
tions, and the general principles of law other than funda­
mental rights, see Case 222/84 Johnston [1986] ECR 1651,
paragraph 18; Case 222/86 Heylens and Others [1987] ECR
4097, paragraph 14; and Joined Cases C-74/95 and C-129/85
X [1996] ECR I-6609, paragraph 25.
I - 8430
BAUSTAHXGEWEBE v COMMISSION
29. The existing case-law on the subject has
in particular been developed in cases con­
cerning respect for the principles of the Con­
vention in connection with certain Commu­
nity administrative procedures in the area of,
for example, the civil service 20 and competi­
tion law, 21 and cases concerning the interpre­
tation of Community law in the light of those
principles. 2 2 In particular, Article 6 of the
Convention has been applied in quite a number
of cases. 23
30. In the present case it is not a matter of
ensuring respect for the principle of a 'fair
hearing' on the part of a Member State or a
Community institution in relation to a dis­
puted measure. The issue in the present appeal
is whether judicial proceedings before the
Court of First Instance respected the right to
legal process within a 'reasonable time', a
right which forms part of the abovementioned
principle. 24 The Court of First Instance, like
the national courts and the other Community
institutions, is subject to the principles of the
Convention.
31. Article 6 of the Convention enshrines the
right of any person to a 'fair ... hearing within
a reasonable time', which is available where a
court is required to determine 'his civil rights
and obligations or ... any criminal charge
against him'. It cannot be disputed — and the
Commission does not dispute — that, in the
light of the case-law of the European Court
of Human Rights and the opinions of the
European Commission of Human Rights, the
present case involves a 'criminal charge'. 25
20 — Sec, for example, Dtifay v Parliament and X v Commission,
cited above.
21 — Sec, for example, Case 85/87 Dow Benelux v Commission
[1989] ECR 3137, paragraph 22 et seq., and Case 374/87
Orkem v Commission [1989] ECR 3283, paragraph 30.
22 — See, for example, Johnston, cited above, paragraph 18, con­
cerning the principle of effective judicial control enshrined
by a Community directive, and ERT, cited above, paragraph
41 et seq., concerning the principle of freedom of expres­
sion in relation to the power of the Member States to restrict,
for particular reasons, the freedom to provide services.
23 — Sec, for example, Case 98/79 Pecastaing [1980] ECR 691,
paragraphs 21 and 22; Joined Cases 100/80 to 103/80 Musique
Diffusion Française and Others v Commission [1983] ECR
1825, paragraph 6 ct scc\.;Johnston, cited above; Dufay, cited
above; Case C-60/92 Otto [1993] ECR I-5683, paragraph 11;
Case C-97/91 Oleificio Barelli v Commission [1992] ECR
I-6313, paragraph 13 et seq.; Joined Cases C-121/91 and
C-122/91 CT Control (Rotterdam) and JCT Benelux v
Commission [1993] ECR I-3873, paragraph 50 et seq. How­
ever, the Court does not so far appear to have classified the
principle of a 'fair hearing' or any of the rights of which it
consists as being a 'fundamental right'.
24 — In the judgment in Case C-362/95 P Blachpur DIY and
Others v Council and Commission [1997] ECR I-4775, para­
graph 26, the Court of Justice dismissed a plca to the effect
that the Court of First Instance had disregarded the right to
a 'fair hearing'.
25 — On this point it is sufficient to refer to the opinion delivered
on 30 May 1991 by the European Commission of Human
Rights, which may be applied to the present case. With
regard to a pecuniary sanction imposed on an undertaking
by a national authority in the area of competition law, the
Commission took the view that 'the Minister's decision to
impose a fine constituted, for the purposes of the Conven­
tion, determination of a criminal charge, and the fine had all
the aspects of a criminal penalty' (European Court of Human
Rights, Société Stenuit v France, Series A No 232, paragraph
65). The European Commission of Human Rights referred
to the case-law of the European Court of Human Rights
and observed (paragraph 62) that the measure in question
'affected the general interests of society normally protected
by criminal law'. It went on to say (paragraph 63) that
'"these generally come within the ambit of the criminal law
offences that make their perpetrator liable to penalties
intended ... to be deterrent and usually consisting of fines
and of measures depriving the person of his liberty" (Euro­
pean Court of Human Rights, judgment [of 21 February
1984] Öztürk ... [Scries A No 73])', before concluding that
the matter was a criminal case within the meaning of the
Convention.
I - 8431
OPINION OF MR LÉGER — CASE C-185/95 P
32. Therefore, the principle pleaded by BStG
is one of those which it is the Court's task to
ensure is respected.
33. For the sake of completeness, let me add
that, although it has not yet been positively
established by the Court,26 I think there is
no doubt that Article 6 applies to legal per­
sons because it is clear from the case-law of
the European Commission of Human Rights
that the pronoun 'everyone' covers legal per­
sons as well as natural persons. 27
34. Furthermore, legal persons do not differ
from natural persons to such an extent that
their safeguards must be limited, for the proper
administration of justice, in actions to which
they are parties.
35. Although the nature and extent of the
damage suffered by reason of the length of
proceedings may be very different, depending
on whether the penalty is a term of imprison­
ment or a fine, or whether the amount of the
fine must be paid by the party concerned from
his own resources which are intended to meet
his everyday needs, an excessive delay in
giving judgment cannot be tolerated in either
case. In my opinion, these differences are rel­
evant only to the question whether the length
of the procedure is 'reasonable'. They also
lead to sanctions or redress suited to the
nature of the offence.
36. Therefore everyone must be entitled to
have his case disposed of within a 'reasonable
time'.
(b) The nature of the plea
37. Under Article 168a of the EC Treaty,
there is a right of appeal to the Court of Jus­
tice 'on points of law only and in accordance
with the conditions laid down by the Statute'.
Article 51, first paragraph, of the EC Statute
of the Court of Justice provides that: 'An
appeal to the Court of Justice shall be limited
to points of law. It shall lie on the grounds of
lack of competence of the Court of First
Instance, a breach of procedure before it which
adversely affects the interests of the appellant
as well as the infringement of Community
law by the Court of First Instance.'
26 — Paragraph 30 of the Orkem judgment cited above begins as
follows: 'as far as Article 6 of the European Convention is
concerned, although it may be relied upon by an under­
taking subject to an investigation relating to competition law
...'. The reservation as to whether that provision is applicable
to legal persons is only apparent because, in reality, the res­
ervation refers to the investigation stage.
27 — According to the opinion delivered in the Société Stentili v
France case cited above, the Commission 'considers that a
corporate entity can claim the protection of Article 6 of the
Convention when a "criminal charge" has been made against
it' (paragraph 66).
I - 8432
BAUSTAHLGEWEBE v COMMISSION
38. In certain respects, the question whether
a period of time is excessive might be regarded
as a question of fact which, as such, would be
outside the jurisdiction of the Court of Jus­
tice.
39. However, I take the view that this is a
question of law because the Court will not
confine itself to confirming a series of facts.
The Court will have to distinguish the facts
according to their respective influence on the
length of the period in question, after car­
rying out an exercise consisting in either clas­
sifying them as matters which may indicate
shortcomings in the administration of justice
or accepting that they may justify the length
of time taken. In determining in this way
whether the duration of the proceedings was
reasonable or unreasonable, the Court makes
a legal assessment which produces legal effects.
40. Furthermore, the period of time in ques­
tion is attributed to the Court of First Instance
itself, so that the Court of Justice is not being
asked to review an assessment or a legal char­
acterisation of the facts by that Court and to
substitute its own.
41. Let me add that, in any event, if the Court
of Justice had no obligation to review the
correct application of Article 6 of the Con­
vention by the Court of First Instance, this
would imply de facto that the latter is not
subject to the Convention.
42. I consider that the plea concerning the
excessive length of the proceedings is admis­
sible from this viewpoint also.
(c) The measure sought
43. With regard to the measure sought by the
appellant if it were found that the Court of
First Instance had contravened Article 6 of
the Convention, I would merely observe that,
in principle, this is within the normal juris­
diction of the Court. Article 54 of the Statute
provides that, if the appeal is well founded,
the Court is to quash the decision of the
Court of First Instance and the former may
then give final judgment where the state of
the proceedings so permits, or refer the case
back to the Court of First Instance for judg­
ment.
44. Therefore the Court of Justice is perfectly
able to reduce or even discharge the fine
imposed on any party or, if it does not have
the necessary facts, it may refer the case back
to the Court of First Instance for this pur­
pose.
45. However, it is at this stage that the ques­
tion of the scope of BStG's plea arises.
I - 8433
OPINION OF MR LÉGER — CASE C-185/95 P
2. The scope of the plea
46. First of all, it is clear that, were the Court
to find that the time taken by the Court of
First Instance in giving judgment in the action
is not 'reasonable' within the meaning of
Article 6 of the Convention, this could not
lead to referring the case back to the latter
Court. After quashing the judgment appealed
against, the Court of Justice could not permit
the further time necessary for re-examination
of the case to be added to the period which
has elapsed since the matter was first brought
before the Court of First Instance. The remedy
would actually be worse than the ailment.
47. However, there seems little point in
re-examining the case with regard to the plea
concerning the excessive length of the proce­
dure. If procedural irregularities justify
quashing the judgment appealed against, it is
justifiable to re-examine the case because of
the connection between the breach of proce­
dural rules and the action. As we have seen,
Article 51 of the EC Statute of the Court of
Justice requires a breach of procedure 'which
adversely affects the interests of the appellant'
in order for the Court to have jurisdiction. In
most cases such procedural irregularities dis­
regard the principles laid down to safeguard
the parties. Under those circumstances, a
retrial before the first court, complying this
time with the rules of procedure, is undoubt­
edly the best response to the parties' com­
plaints.
48. Nevertheless, as we have just seen, if the
case has to be re-examined because of the
annulment of excessively long proceedings,
this would not only not remedy the damage,
which has, so to speak, been suffered once
and for all, but would actually be likely to
increase it.
49. Consequently, the Court of Justice is the
only court which could take effective action
on a breach of Article 6 of the Convention by
the Court of First Instance.
50. Therefore, assuming that the length of
time in question does not meet the require­
ments of the Convention, the next question is
what action the Court could take on BStG's
application for the fine to be reduced or
remitted.
51. First, it is necessary, as I have said, to
examine the principles developed by the
national legal systems to resolve similar prob­
lems, in order to determine whether there is
a common legal tradition which might offer
guidance to the Court.
52. Although the legal systems of all the
Member States recognise a right to a hearing
within a 'reasonable time', they do not all lay
down the same remedies for the infringement
of that principle. The procedures of the crim-
I - 8434
BAUSTAHLGEWEBE v COMMISSION
inal courts differ from one Member State to
another. They often act purely on the direc­
tions of the judge, there being no basis in
constitutional law or even, sometimes, in
statute, for the steps they take. In some States
the prosecution is ruled inadmissible (Federal
Republic of Germany, Kingdom of Belgium
and Kingdom of the Netherlands) or with­
drawn (Kingdom of Belgium and Ireland).
The penalty may also be reduced (Federal
Republic of Germany, Kingdom of Belgium,
Kingdom of Spain, Republic of Finland, Grand
Duchy of Luxembourg, Kingdom of the Neth­
erlands and Kingdom of Denmark, in the case
of imprisonment) or suspended (Federal
Republic of Germany and Kingdom of Bel­
gium). In the Kingdom of Spain, the defen­
dant may petition for a pardon where the
principle of 'reasonable time' has not been
adhered to.
53. However, in most Member States a breach
of the principle does not affect the validity of
the proceedings in question. It merely enables
an action for compensation to be brought
before the competent court.
54. The Member States appear for that reason
to regard a right to compensation as the most
appropriate way of settling cases where a
'reasonable time' has been exceeded.
55. It does not seem to me that modifying
the penalty or taking steps with regard to the
actual prosecution is a suitable remedy for
exceeding time limits, quite apart from the
fact that the rules are not the same in all the
Member States.
56. If the appellant's plea is indeed based on
a point of law, I do not think it is of the kind
which permits the sanction imposed by the
Commission, as partly upheld by the Court
of First Instance, to be called into question.
57. In so far as sanctions imposed are based
on grounds of Community law, they can be
reviewed in any case following reconsidera­
tion of those grounds. It is because the Court
of First Instance misapplies the law applicable
to the case that the Court of Justice has the
right to quash the judgment entirely or in
part and thus to remit or reduce the fine
imposed. 28 The interpretation of the law given
by the Court of Justice when exercising its
power of review leads to a different assess­
ment of the degree of liability of the party in
question and may be such as to call into
question the penalty imposed. Therefore a
connection exists between the subject-matter
28 — This follows by contrary inference from paragraph 31 of
Case C-219/95 P Ferriere Nord v Commission [1997] ECR
I-4411, which states tliat 'it is not for this Court, when
ruling on questions of law in the context of an appeal, to
substitute, on grounds of fairness, its own assessment for
that of the Court of First Instance exercising its unlimited
jurisdiction to rule on the amount of fines imposed on
undertakings for infringements of Community law (Case
C-310/93 P BPB Industries and British Gypsum v Commis­
sion [1995] ECR I-865, paragraph 34)'.
I - 8435
OPINION OF MR LÉGER — CASE C-185/95 P
of the proceedings and the penalty ultimately
imposed.
58. That is not the case here because neither
the finding that the acts with which BStG
was charged, nor the assessment of its respon­
sibility in carrying out the agreements, nor
the application of the relevant law were
affected by the time (however long) taken by
the Court of First Instance to examine the
contested Decision.
59. Furthermore, as this complaint has no
connection with any defective interpretation
of the Community law applicable to the case,
a re-examination of the matter would in no
way answer the plea that the proceedings were
not contested within a 'reasonable time'. The
absence of any connection means that the
Court cannot, in default of a provision
expressly authorising it to do so, recognise a
right to plead that the proceedings were not
conducted within a 'reasonable time' in order
to reduce or remit, by amending the judg­
ment appealed against, the fine imposed on
BStG. I think it would be difficult to identify
criteria for choosing between remitting and
reducing the fine or, if it were reduced, the
criteria necessary for determining the amount
of the fine, unless there were some method of
evaluating the damage, which could then be
deducted from the fine.
60. However, this course would entail two
main drawbacks. As it is based on the idea of
compensation, it would require the amount
of the redress to be deducted from a penalty.
It may appear strange to deduct a sum fixed
in proportion to certain damage from a sum
primarily fixed by reference to the gravity of
certain conduct. In this way the present appeal
procedure, which is directed against a judg­
ment imposing a penalty, would acquire a dual
purpose. Above all, the Court of Justice
cannot give a proper ruling on a question of
damage without having the information nec­
essary for evaluating it, unless it orders the
re-opening of the oral procedure.
61. For all these reasons I conclude that
BStG's plea is invalid and consequently I
propose that the Court dismiss it without
further consideration.
62. However, it seems to me impermissible,
and even legally unacceptable, to hold that
Article 6 of the Convention lays down a rule
with which it is the Court's task to secure
compliance while, at the same time, proposing
that the Court should not give a ruling on a
plea based on that Article, without men­
tioning (although there is no requirement to
do so) the remedy which, in my view, could
make up for the inadequacy of the relevant
provisions.
I - 8436
BAUSTAHLGEWEBE v COMMISSION
3. Action for liability as the appropriate
remedy
63. As an appeal is not an effective response
where proceedings are not conducted within
a 'reasonable time', I think an action for com­
pensation must represent the means for pre­
venting this principle of the Convention from
becoming a dead letter when it is raised against
proceedings before the Court of First Instance.
64. Let me outline the factors which, in my
opinion, would permit the Court, if neces­
sary, to rule as admissible an action for com­
pensation on the ground that the Court of
First Instance had breached the rule requiring
proceedings to be conducted within a 'rea­
sonable time'.
65. The action for compensation exists in the
common legal tradition of the Member States
and in Community law. As we have seen, the
national legal systems recognise the principle
of compensation for the damage suffered by
the party concerned as a result of a breach of
the 'reasonable time' rule. Article 215, second
paragraph, of the Treaty allows an action to
be brought for the non-contractual liability
of the Community arising from damage caused
by its institutions. In his Opinion in the
SGEEM and Etroy v EIB case, 29 Advocate
General Gulmann contended that the word
'institutions' in Article 215 refers to Article 4
of the Treaty, which lists the Community
institutions. 30 However, the Court went fur­
ther in finding that the term should not be
understood as referring only to the institu­
tions listed in Article 4. 31 Consequently, it
docs not appear that the Court of Justice or
the Court of First Instance should be regarded
as being outside the ambit of Article 215. 32
66. In the procedural respect, however, there
is a serious difficulty in that, under Article
3(1) of the abovementioncd Decision 88/591,
as amended by Article 1 of the Council Deci­
sion of 8 June 1993,33 the Court of First
Instance itself has jurisdiction to hear such
actions when they are brought by natural or
legal persons.
67. Again without prejudging the issue
whether the time taken by the Court of First
Instance to give judgment was unreasonable
or its own share of the responsibility in the
present case, it is not feasible to entrust a
judicial body with the task of determining
whether its own conduct is wrongful or
unlawful. This would unquestionably be con­
trary to the principle of an impartial tribunal
laid down in Article 6(1) of the Convention.
29 — Case C-370/89 [19923 ECR I-6211.
30 — Point 14 of the Opinion.
31 — See paragraph 16 of the judgment.
32 — For the problems arising from the principle of the liability
of the Community Courts, see B. du Ban, 'Les principes
g énéraux communs et la responsabilité non-contractuelle de
a Communauté', Cahiers de Droit Européen, 1977, No 4,
p. 397.
33 — Décision 93/350/Euratom/ECSC, EEC, amending Decision
88/591 (OJ 1993 L 144, p. 21).
I - 8437
OPINION OF MR LÉGER — CASE C-185/95 P
I think it would be difficult to avoid such a
conflict by referring the case back to a differ­
ently constituted court from that which gave
the original judgment because, if we adopt
the approach taken by the Strasbourg Court,
a change in the constitution of a court may
not be enough to remove entirely the impres­
sion of partiality which would arise from a
judgment concerning the court which it itself
delivers. 34
68. Furthermore, it is clear from the pre­
ambles to Decisions 88/591 and 93/350 that
the establishment of a second court, i. e. the
Court of First Instance, is designed to improve
the judicial protection of individuals. It is
hardly possible to envisage a more serious
breach of this requirement than by allowing
one of the parties to act as judge in its own
case.
69. Therefore Article 3 of Decision 88/591
must be read in the light of the principle of
impartiality laid down by the Convention,
particularly as it is difficult to imagine that
the Community legislature could have con­
ceived that the scope of that decision would
cover the examination by the Court of First
Instance of its own liability.
70. Although the jurisdiction of the Court of
Justice in this area necessarily leads to the
examination by a single court of the plea in
question, it is accepted that a two-tier judicial
system, as understood in the Community
legal order and in general, ensures that justice
is done. However, this procedural safety net,
designed to reduce the risk of mistakes in law
by means of a review of the law applied by
the Court of First Instance, must not deprive
the parties of the essential safeguard of the
impartiality of the court before which they
bring their action. It cannot be denied that
the two-tier court system is only one aspect
of judicial protection. Therefore the principle
of impartiality, which precludes the assess­
ment by a court of its own conduct, must in
this case take precedence.
71. In those circumstances, the jurisdiction of
the Court of First Instance in actions brought
by natural or legal persons under Article 178
of the Treaty must be understood, for the
purpose of the protection of individuals, as
not extending to actions for compensation
relating to judicial acts of that Court itself.
34 — The European Court of Human Rights carries out not only
a subjective assessment of the impartiality of the court in
question, but also an objective assessment: 'the existence of
impartiality for the purpose of Article 6(1) must be deter­
mined according to a subjective test, that is on the basis of
the personal conviction or a particular judge in a given case,
and also according to an objective test, that is ascertaining
whether the judge offered guarantees sufficient to exclude
any legitimate doubt in this respect' (European Court of
Human Rights, Hauschildt judgment of 24 May 1989, series
A No 154, paragraph 46). The Court adds that 'in this con­
nection, even appearances may be of a certain importance'
(paragraph 48). The example of a court which has to decide
whether its own functioning was illegal or wrongful in order
to determine an action for compensation, even if its consti­
tution is altered so that the judges who gave the original
judgment are not the same as those who have to assess the
court's own liability, seems to me a perfect illustration of a
breach of the principle of impartiality.
I - 8438
BAUSTAHLGEWEBE v COMMISSION
72. Consequently, for an action such as that
in question here, Article 178 of the Treaty
prevails and the Court of Justice retains juris­
diction in disputes relating to compensation
for damage provided for in the second para­
graph of Article 215.
73. The second paragraph of Article 215 lays
down the principle of the Community's non­
contractual liability by referring to the 'gen­
eral principles common to the laws of the
Member States'. As we have seen, most
Member States allow compensation for
damage arising from disregard of the right to
obtain judgment within a 'reasonable time'.
74. The Court of Justice should therefore, as
it is authorised to do by the second paragraph
of Article 215, seek guidance in that common
tradition in finding an identical means of set­
tling disputes which supplements, within its
own scope, the area covered by the appeal.
Consequently, it is only a matter of rem­
edying the deficiencies of this action in order
to reply to a specific plea in an area which, in
addition, is more concerned with the
machinery of justice than the adjudicative
function of the courts.
75. Finally, the admissibility of such an action
is subject to the conditions of general law,
such as the five-year limitation period of
Article 43 of the EC Statute of the Court of
Justice, which provides that the period runs
from 'the occurrence of the event giving rise
[to non-contractual liability]'. In the present
case, the event in question is the judgment
delivered at the end of a period found to be
'unreasonable'.
76. These are the steps which could be con­
templated to ensure the effectiveness of Article
6 of the Convention in regard to a 'reason­
able time'.
B ·— Second plea: infringement of the so-called
principle of 'orality'
77. BStG contends that, in giving judgment
22 months after the closure of the oral pro­
cedure, the Court of First Instance infringed
the so-called principle of 'orality'. According
to the appellant, this is an unwritten funda­
mental principle of Community procedure,
upheld by the codes of procedure of the
Member States.
78. The appellant submits that the abovemen-
tioned principle means that only the argu­
ments put forward during the oral procedure
can be taken into account in a court's deci­
sion. It adds that the principle enables the
parties to set out their views clearly and rap­
idly, thereby enabling the court to form a
direct, personal opinion on the case and the
parties' arguments. The two years which
elapsed between the hearing and the judg­
ment under challenge blurred the impressions
I - 8439
OPINION OF MR LÉGER — CASE C-185/95 P
left by the hearing and, therefore, BStG con­
siders that this irregularity in the procedure
must lead to the judgment being set aside.
79. The Commission considers that the oral
element does not have primacy in the Com­
munity law on the organisation of the courts
and that this plea must be dismissed.
80. The principle of orality, as recognised in
the legal systems of the Member States, appears
to have a number of different aspects.
81. In the strict sense, the principle means
that a party has the right to state his case in
the course of a hearing during which he or
his representative has an opportunity to speak
and to reply to the court's questions. The
courts and tribunals of the Member States
have rules which combine written and oral
procedural elements in varying proportions,
but the principle of orality is common to all
of them. This is also true of the procedure
before the Court of First Instance, which
includes an oral phase. 35
82. In the wider sense, the principle of orality
comprises the immediacy of the proceedings,
which means that the court must have direct
and personal contact with all those taking
part in the hearing. 36
83. The concept of 'immediacy' (or 'Unmit­
telbarkeit' in German law, 'immédiateté' in
French law, 'inmediación' in Spanish law and
'imediaçao' in Portuguese law) takes full
account of the requirements of the principle
of orality where it calls for a direct relation­
ship between the court and the party con­
cerned. 'Immediacy' in physical terms, which
means that the court cannot interpose an
intermediary between itself and the party or
his representative, presupposes that a judge
who was not present at the hearing cannot
contribute to the decision in the case. Article
33(2) of the Rules of Procedure of the Court
of First Instance provides that 'only those
Judges who were present at the oral proceed­
ings may take part in the deliberations'.
84. The aspect of the principle of orality
which is at issue in the present case is 'imme­
diacy' in time. The Court of First Instance is
alleged to have allowed too much time to
35 — See Articles 46, first paragraph, as amended, and 18, first
paragraph, of the EC Statute of the Court of Justice, and
Article 53 et seq of the Rules of Procedure of the Court of
First Instance of the European Communities of 2 May 1991
(OJ 1991 L 136, p. 1, corrigendum OJ 1991 L 317, p. 34).
36 — The following account of this principle in French criminal
law may, in substance, be applied here: 'Trial courts must,
in principle, form their view on the evidence produced before
them, both orally and directly, that is to say, they must
decide by reference to what they hear (or see) during the
hearing, and not by reference to written documents in the
police or preliminary investigation files. In fact, it is desir­
able that courts should not reach a decision only by refer­
ence to a file, but after obtaining a personal, human impres­
sion of the perpetrators of and the witnesses to the offence':
P. Bouzat and J. Pinatel, Traité de droit pénal et de crimi­
nologie, Vol. II, 1970, paragraph 1336.
I - 8440
BAUSTAHLGEWEBE v COMMISSION
elapse between the date of the hearing and
the delivery of judgment, so that the benefit
of the hearing was lost, so to speak, as the
memory of it faded in the minds of the judges.
85. Because of its temporal dimension, this
aspect may appear to relate to the issue of
'reasonable time'. Furthermore, the time taken
by a court to give judgment is a factor which
is taken into account by the Strasbourg Court
to assess whether a period of time is 'reason­
able'. It is one of the aspects of the criterion,
used by that Court, of the effect of the con­
duct of the competent authorities, in this case
the courts, on the length of the period in
question. 37
86. However, the two aspects are not com­
parable because, considered in isolation, failure
to meet the requirement of 'immediacy' goes
to the substance of the case. A breach of the
rule invalidates the oral proceedings and its
benefits because the content of the discussion,
which is an additional clement inseparable
from the written file, is missed by the judges
who constituted the court. A judgment deliv­
ered under these conditions may thus over­
look essential aspects of the case. In contrast,
a breach of the 'reasonable time' principle
does not affect the decision. Consequently
the damage which it causes cannot be con­
fused with the penalty.
87. It follows that a breach of the two prin­
ciples does not produce the same conse­
quences. Contrary to what is possible in the
case of 'reasonable time', and as in the case of
other procedural irregularities which may
affect a plaintiff's interests, the proceedings
may be annulled and reopened where his
interests have not been irremediably dam­
aged.
88. However, before giving a ruling on the
plea in question, the Court must state its
views on the existence and, if necessary, the
force in Community law of the principle of
'immediacy', which means that its place in
the Community legal order must be deter­
mined.
89. There is no procedural rule which states
that judgments of the Court of First Instance
must be delivered within a particular period
or even within a period which could be
described as reasonable, taking care not to
confuse the use of this adjective with that
referring to 'time' in Article 6 of the Conven­
tion, which is more general.
90. However important it is, it docs not
appear that the principle of 'immediacy' can
37 — European Court of Human Rights, judgments of 7 July 1989
Union Alimentaria Sanders SA, Series A No 157, paragraphs
36 and 41; 26 February 1992 Biondi, Series A No 228-C,
paragraph 18; and 23 June 1994 De Moor v Belgium, Series
A No 292-A, paragraph 67.
I - 8441
OPINION OF MR LÉGER — CASE C-185/95 P
be counted among the general principles of
law the observance of which is ensured by
the Court. 38
91. As I have already stated, the Convention
does not distinguish the question of the time
taken by a court to give judgment from the
general problem of 'reasonable time'. More­
over, the requirements of Article 6 of the
Convention relate only to a public hearing. 39
However, there is no question arising with
regard to the public nature of the hearing in
the present case.
92. In the vast majority of Member States the
courts must give their decisions within a speci­
fied period, normally soon after the conclu­
sion of the hearing (Federal Republic of Ger­
many, Republic of Austria, Kingdom of
Belgium, Republic of Finland, Kingdom of
the Netherlands and Kingdom of Denmark),
or even on the same day, subject to certain
exceptions, as the conclusion of the oral pro­
ceedings (United Kingdom of Great Britain
and Northern Ireland, Kingdom of Spain,
Hellenic Republic, Ireland, Portuguese
Republic and Kingdom of Sweden).
93. However, two qualifications must be
made. Firstly, the rules which give effect to
the principle of 'immediacy', unlike the 'rea­
sonable time' principle in certain Member
States, are not constitutional but, rather, statu­
tory. They are normally included in codes of
civil, criminal or administrative procedure.
Secondly, their effectiveness is not systemati­
cally guaranteed because, in addition to those
States which do not specify a maximum time-
limit, there are others which do not attach
any penalty to failure to meet the specified
time-limit, at least not by invalidating the
proceedings in question (United Kingdom of
Great Britain and Northern Ireland, Kingdom
of Belgium and Kingdom of Denmark).
94. Furthermore, in the present case the ques­
tion of 'immediacy' arises in relation to a
non-national court. The laws of the Member
States do not on their own permit the iden­
tification of a common supralegal tradition
justifying the acceptance of a general prin­
ciple of law applying to their own courts
when dealing with cases based on Commu­
nity law. In those circumstances, those laws
can with even less cause be regarded as sug­
gesting, without the support of a Community
provision or a rule contained in international
instruments concerning the protection of
human rights (such as the Convention), that
a rule exists which requires a Community
court such as the Court of First Instance to
adhere to a time-limit for giving judgment.
We have seen that there are no provisions of
that kind which imply such a rule.
38 — See points 24 and 25 of this Opinion.
39 — Article 6(1) provides that 'everyone is entitled to a fair and
public hearing' (emphasis added). The same wording is used
in Article 14(1) of the International Covenant on Civil and
Political Rights of 16 December 1966 (see R. Lillich, Inter­
national Human Rights Instruments, 1990, p. 170.6). The
Covenant likewise does not lay down any principle con­
cerning the time taken by courts, after the hearing has taken
place, to give judgment.
I - 8442
BAUSTAHLGEWEBE v COMMISSION
95. Of course, care must be taken to ensure
that the absence of a rule laying down a
maximum period within which a judgment
must be delivered does not amount to an
acceptance that there is no time-limit what­
ever to the length of deliberations or lead to
the dismissal of any appeal against proceed­
ings which could be described as intermi­
nable. On this point it is sufficient to observe
that it is precisely the 'reasonable time' prin­
ciple, already examined, which aims to meet
this requirement.
96. Therefore I must conclude that the plea
relating to the principle of orality is inadmis­
sible.
C — Third plea: breach of the principles
applying in the matter of evidence
97. BStG objects to the reasoning whereby
the Court of First Instance found the facts in
question to have been established to the req­
uisite legal standard and dismissed four times
the appellant's complaints, its offer concerning
witnesses and its request to appear. 40
98. The appellant contends that the Court of
First Instance fundamentally disregarded the
principles relating to evidence, concerning
both its presentation and its assessment. The
Court of First Instance is said merely to have
verified that the Commission had 'legally suc­
ceeded' in producing proof of certain allega­
tions so as to support the decision in ques­
tion. The appellant also claims that the Court
of First Instance did not ascertain whether
the evidence produced by the Commission
could have been interpreted differently or
whether the evidence offered by the appellant
could have cast doubt on the Commission's
evidence.
99. The appellant's plea has five limbs:
— the Court of First Instance applied an
incorrect criterion, when assessing the evi­
dence, by failing to consider whether the
indicia adduced by the Commission could
be explained otherwise than by the exist­
ence of an agreement;
— by refusing to examine the evidence
offered, the Court of First Instance failed
to fulfil its Obligation to examine the case'
and breached the 'fair hearing' principle;
40 — The Court of First Instance uses the same reasoning for sev­
eral offences in four passages of the judgment) as follows:
paragraphs 67 and 68, 93 and 94, 119 and 120, and 137 and
138.
I - 8443
OPINION OF MR LÉGER — CASE C-185/95 P
— furthermore, the Court of First Instance
failed to observe the principle of 'unfet­
tered assessment of evidence' by not exam­
ining in detail the appellant's account of
the facts and the evidence which it offered
to produce;
— the Court of First Instance did not apply
the rule that the defendant should be given
the benefit of the doubt;
— the offers of evidence by BStG were refused
on inadequate grounds, contrary to the
right to a fair hearing.
100. The Commission considers it necessary
to point out that an appeal to the Court of
Justice may be based only on pleas alleging
infringement of rules of law, excluding the
assessment of facts, and that the criterion used
by the Court of First Instance to assess the
facts falls logically within the latter category.
The Commission disputes the appellant's argu­
ment that the Court of First Instance must
always allow requests for measures of inquiry
and observes that the measures of procedural
organisation taken by the Court, in the form
of questions to the appellant, show that the
Court did not neglect to examine the appel­
lant's evidence.
101. BStG replies that the Court of Justice
has jurisdiction to hear an appeal on the ·
ground of a procedural irregularity and that
it may examine the rules and the general prin­
ciples of law concerning the burden of proof
in the same way as the procedural rules for
the administration of evidence. BStG adds
that measures for the organisation of proce­
dure cannot replace measures of inquiry and
that the unjustified refusal of an offer of evi­
dence amounts to a premature assessment of
evidence prohibited by Community law.
1. The criterion for examination by the Court
of First Instance
102. First of all, let me say that the appellant
has no justification for saying that the Court
of First Instance did not carry out an adequate
examination of the facts which it put to it. It
is clear from paragraph 61 of the contested
judgment concerning the 1985 agreement
between BStG and Tréfilunion, paragraphs 84
to 86 concerning the agreements on quotas
and prices with the Benelux producers, para­
graphs 111 to 113 concerning the agreement
between BStG and Tréfilarbed, and para­
graphs 125 and 126 concerning quota and
price agreements on the Benelux market, that
the Court gave a complete account of BStG's
arguments.
103. In its reply to the Commission, BStG
makes it clear that the issue is not the assess-
I - 8444
BAUSTAHLGEWEBE v COMMISSION
ment of the evidence itself, but the Court's
criterion for assessing it and the extent of its
review. 41
104. I do not think that the distinction made
by the appellant is justified. To cast doubt on
the criterion used by the Court of First
Instance amounts indirectly to questioning its
discretion, that is to say, criticising the con­
clusions it reached on the evidence put before
it. The appellant does the same in claiming
that the Court of First Instance did not take
account of other, more favourable, assump­
tions, because it was by exercising its discre­
tion that it ruled out those assumptions and
took a different approach.
105. Therefore it is necessary to apply the
settled case-law of the Court of Justice which
states that it is clear from both Article 49,
first paragraph, of the EC Statute of the Court
of Justice, Article 168a of the Treaty and
Article 51 of that Statute, and also from Article
112(1)(c) of the Rules of Procedure of the
Court of Justice, that the latter does not have
jurisdiction to make findings as to the facts
or, in principle, to examine the evidence used
by the Court of First Instance in support of
those facts. According to the same case-law
relating to the abovementioned provisions, it
is for the Court of First Instance alone to
assess the value which should be attached to
the items of evidence produced to it. 42 There­
fore, such appraisal does not constitute (save
where the clear sense of that evidence has
been distorted) a point of law which is sub­
ject, as such, to review by the Court of Jus­
tice. 43
106. In support of its complaint, BStG has
failed entirely to show that the Court of First
Instance manifestly misinterpreted the evi­
dence before it. Moreover, in this part of its
submissions BStG does not specify which
statements in the Court's judgment, which it
contends should be set aside, allegedly indi­
cate such distortion.
107. Let me add, although it is not really
necessary, that BStG's argument may also be
understood as insisting on a requirement that
a more complete statement should be given of
the reasons on which the judgment is based,
including observations on alternative explana­
tions, favourable to the applicant, of the facts
submitted to the Court of First Instance. The
Court of First Instance, it argues, has an obli­
gation to show that it did not fail to examine
the facts in the light of the explanations given
by one of the parties.
41 — Sec paragraph 36 of the appeal.
42 — See, in particular, Case C-136/92 P Commission v Brazzelli
Lualdi andOthers [1994] ECR I-1981, paragraphs 47 to 49
and 66; the order in Case C-19/95 P San Marco v Commis­
sion [1996] ECR I-4435, paragraphs 36 to 41; Blackspur DIY
and Others v Council and Commission, cited above, para­
graph 29; and the order in Case C-55/97 P AIUFFASS and
AKT v Commission [1997] ECR I-5383, paragraphs 24 and
25.
43 — Sec, in particular, Case C-53/92 P Hilti v Commission [1994]
ECR I-667, paragraph 42, and Blackspur, cited above, para­
graph 29.
I - 8445
OPINION OF MR LÉGER — CASE C-185/95 P
108. Obviously, the Court of First Instance
must state the reasons on which its judgments
are based. 44 Those judgments must therefore
clearly state the reasons which convinced the
Court and the reasoning of the Community
authority which led to the Court's convic­
tion, in such a way that the parties may be
aware of the elements in the reasoning which
were accepted and so that the Court of Jus­
tice can exercise its power of review.
109. However, it seems to me excessive, where
the reasoning of the judgment is based on
detailed facts, as in the present case, and not
on assumptions, to require the Court of First
Instance to indicate why it formed the view
that the circumstances adduced by one party
to throw a different light on the facts in issue
lacked persuasive power. It cannot be inferred,
from the fact that there was no formal discus­
sion by the Court of First Instance of the
explanations offered by one party, that those
matters were not examined, since the Court's
reasoning is based on detailed circumstances
and implicitly, but necessarily, excludes the
appellant's arguments.
110. On this point BStG merely gives a gen­
eral appraisal of the reasoning of the Court of
First Instance judgment and fails to offer any
support for its own argument. 45
111. Consequently the first limb of the third
plea must be ruled inadmissible.
2. The obligation on the Court ofFirst Instance
to 'examine the case' and the 'fair hearing'
principle
112. According to BStG, these principles
require the Court of First Instance to allow
offers of evidence, save in certain limited cases
which have not been shown to exist here. It
considers that the refusal of its offers to pro­
duce witnesses and to appear personally
amounts to a premature assessment of evi­
dence, which is incompatible with the prin­
ciples of the rule of law. BStG adds that, even
if no offers had been made, the principle that
in criminal proceedings a court must enquire
into the facts without being bound by the
parties' applications means that it must of its
own motion extend its examination to all the
evidence, and that this obligation to examine
the case of its own motion means also that
the Court of First Instance ought to have
attempted to obtain the best possible evi­
dence.
44 — Articles 33 and 46, first paragraph, of the EC Statute of the
Court of Justice. See the orders in Case C-59/96 P Koelman
v Commission [1997] ECR I-4809, paragraphs 54 and 55,
and in AIUFFASS and AKT v Commission, cited above,
paragraph 23.
45 — The Court of Justice has already held that the failure by the
Court of First Instance to take account of certain evidence
was within the jurisdiction of the Court of Justice, but that
proof of such failure had to be adduced beforehand so that
conclusions could be validly drawn from it (see Case C-244/91
P Pincherk v Commission [1993] ECR I-6965, paragraphs 32
and 33). This is all the more true where a party claims that
the Court failed to take account of an explanation given by
it in order to place in a more favourable light the acts which
it is alleged to have committed.
I - 8446
BAUSTAHLGEWEBE v COMMISSION
113. First of all, it must be borne in mind
that the Court of Justice has jurisdiction to
review observance of the general principles of
law and the rules of procedure in relation to
the burden of proof and the taking of evi­
dence. 46
114. Apart from that derived from Article 6
of the Convention, the principles on which
the appellant relies are not embodied in spe­
cific rules which would make it possible to
ascertain their meaning and effect and to estab­
lish whether they have binding force. I must
therefore confine my discussion to the provi­
sions of the Convention.
115. Article 6(3)(d) provides that 'Everyone
charged with a criminal offence has the fol­
lowing minimum rights:... to examine or have
examined witnesses against him and to obtain
the attendance and examination of witnesses
on his behalf under the same conditions as
witnesses against him'. 47
116. That provision, as construed by the
European Court of Human Rights, does not
impose an unconditional obligation on a court
to accept offers of witness evidence by par­
ties.
117. For example, in the Vidai v Belgium
judgment of 22 April 1992, the Strasbourg
Court observed that 'Article 6§(3)(d) ... leaves
it to [the national courts], again as a general
rule, to assess whether it is appropriate to call
witnesses, in the "autonomous" sense given
to that word in the Convention system ... it
"does not require the attendance and exami­
nation of every witness on the accused's
behalf: its essential aim, as is indicated by the
words 'under the same conditions', is a full
'equality of arms' in the matter" ...', 48
118. Therefore it appears that the right to
obtain an examination of a witness is condi­
tioned by the 'fairness' of the proceedings,
which may be deemed to be affected in a case
in which the testimony of a witness requested
by the person charged is refused where it
might have given the court evidence capable
of countering the testimony of a prosecution
witness.
119. In the present case it must be held that
the Court of First Instance did not carry out
the examination of witnesses in a way which
indicates an arbitrarily selective assessment of
the testimony necessary for its decision.
120. Concerning BStG's argument that offers
of evidence by parties may be refused only
subject to very strict conditions, regard must
be had to Article 66(1) of the Rules of Pro­
cedure of the Court of First Instance: 'The
46 — Sec, in particular, the order in San Marco v Commission,
cited above, paragraph 40.
47 — The wording of Article 14(3)(c) of the International Cov­
enant on Civil and Political Rights, cited above, is identical.
48 — European Court of Human Rights, Scries A No 235-B,
paragraph 33.
I - 8447
OPINION OF MR LÉGER — CASE C-185/95 P
Court of First Instance, after hearing the
Advocate General, shall prescribe the mea­
sures of inquiry that it considers appropriate
by means of an order setting out the facts to
be proved.' 49 This confirms that the Court of
First Instance remains competent to assess
the relevance of the evidence put before it. 50
121. In addition, the Court of First Instance
cannot be required to examine systematically
the witnesses offered by the parties, without
interfering with the smooth conduct of the
proceedings, which is frequently threatened
by delaying tactics, or to refrain from exer­
cising its discretion with regard to the evi­
dence before it, which includes the option to
refuse a measure if it considers that sufficient
information is provided by the documents in
the file.
122. In this respect the Court of First Instance
appears to be justified in making any decision
to accept offers of evidence subject to the
condition that the party concerned should
specify grounds likely to justify the examina­
tion requested. 51
123. Moreover, the Court of First Instance
ordered measures of procedural organisation
in the form of questions to which the parties
were asked to reply in writing. 52 It is common
ground that, of the seven questions put to the
appellant, five related expressly to its offers of
evidence and at least one aimed to obtain from
the appellant particulars of 'the concrete, fac­
tual reasons why it [disputed] the manifest
content of the documents produced'. 53
124. This shows, if confirmation were needed,
that the Court of First Instance did not neglect
to examine the offers of evidence submitted
to it.
125. In my opinion, therefore, it was with a
view to the proper administration of justice
and in compliance with the relevant rules that
the Court of First Instance was able to accede
to the requests for personal appearance and
for the hearing of witnesses without pre­
judging the main issue, as the Court guarded
against any risk of an arbitrary decision by
examining the reasons for the offers of evi­
dence, subject to giving sufficient grounds in
law for the decision on the main issue, as we
shall see later, when discussing the plea alleging
breach of Article 85(1) of the Treaty.
49 — Emphasis added.
50 — See the order in Case C-140/96 P Dimitriadis v Court of
Auditors [1997] ECR 1-5635, paragraphs 27 and 28. The
Court of Justice has also ruled that the Court of First
Instance may refuse a request for an expert opinion on the
ground that the measure of inquiry requested 'would serve
no useful function for the Court, which considers that it has
received sufficient information from the entire course of the
proceedings'. It is true that the plea was not immediately
directed against that ground (see Case C-326/91 P De
Compte v Parliament [1994] ECR 1-2091, paragraph 123).
51 — See Case 35/67 Van Eiek v Commission [1968] ECR 329.
52 — See paragraphs 13 and 14 of the judgment.
53 — See paragraph 29 of the Commission's statement in reply.
I - 8448
BAUSTAHLGEWEBE v COMMISSION
3. The principles of 'unfettered assessment of
evidence' and 'benefit of the doubt'
126. In the third limb of the third plea, BStG
complains that the Court of First Instance
omitted to examine the facts in detail and to
exhaust all the sources of information avail­
able to it. It also complains, in the fourth
limb, that the Court did not give it the ben­
efit of the doubt resulting from its explana­
tion of the evidence presented by the Com­
mission.
127. In reality the appellant is seeking to
challenge the Court's appraisal of the value of
the evidence before it. As I have pointed
out, 54 such appraisal does not constitute (save
where the clear sense of that evidence has
been distorted) a point of law which is sub­
ject, as such, to review by the Court of Jus­
tice. BStG adduces nothing to support its
argument to show that the conclusions reached
by the Court of First Instance in its reasoning
on the basis of the evidence before it were
manifestly wrong.
128. As I have already said, it is for the Court
of First Instance, precisely by virtue of the
same discretion as that to which the appellant
refers, to decide whether that evidence is suf­
ficient to establish the facts so that no doubt
remains.
129. Furthermore, it must be noted that BStG
has not put forward any argument to show
that the Court of First Instance made a mis­
take in law in its appraisal, neither has it
specified the points criticised in the judgment
which it seeks to have annulled. The appel­
lant has not referred to the breach of any rule
of law and merely disputes the assessment of
the facts by the Court of First Instance.
130. The third and fourth limbs of the third
plea must for that reason be ruled inadmis­
sible.
4. Reasons for refusing offers of evidence
131. The reply to the argument that the Court
of First Instance did not state sufficient rea­
sons for refusing BStG's offers of evidence is
closely related to the Court's discretion to
assess the value of the evidence available to it.
In other words, if the Court considers that
the probative value of the documents in the
file is sufficient to persuade the Court, it must
then — first and foremost —· state the grounds
justifying the decision on the main issue. If54 — Point 105 above.
I - 8449
OPINION OF MR LÉGER — CASE C-I85/95 P
this condition is fulfilled, I consider that the
Court can then refuse, with a brief statement
of reasons, the offers of evidence made to it.
132. It follows that the Court of First Instance
was not in breach of the obligation to state
reasons by merely indicating that it would
not take action on the appellant's offers with
regard to the examination of witnesses and its
own personal appearance, because the Court
took care to set out first the reasons why it
considered that the Commission had estab­
lished to the requisite legal standard the acts
alleged to have been committed by BStG. I
shall consider this last-mentioned statement
of reasons, in so far as it is challenged, when
I come to the sixth plea alleging breach of
Article 85(1) of the Treaty.
133. The fifth limb of the third plea must
accordingly be dismissed as unfounded and
that plea dismissed in its entirety.
D — Fourth plea: breach of the rules con­
cerning offers of evidence out of time
134. BStG complains that the Court of First
Instance misinterpreted Article 48(1) of its
Rules of Procedure when it refused the appel­
lant's offers of evidence as being out of time
in paragraphs 94, 120 and 138 of the judg­
ment.
135. The Commission replies that the Court
followed its settled case-law in finding that
offers of evidence made for the first time in
the reply constitute a delay for which reasons
must be given.
136. In the paragraphs referred to by BStG,
the Court dismissed the offers, 'which the
appellant made in the reply, concerning the
examination of witnesses and the appellant's
own personal appearance, on the ground that
they were out of time because the appellant
had not shown any reason which prevented it
from making them in the original application.
137. Article 48(1) of the Rules of Procedure
provides that 'in reply or rejoinder a party
may offer further evidence. The party must,
however, give reasons for the delay in offering
it'. 55
138. It is clear from this that the parties must
set out the circumstances justifying the offer
55 — Emphasis added.
I - 8450
BAUSTAHLGEWEBE v COMMISSION
of evidence at the stage of the reply. The pur­
pose of this requirement is to enable the
Court of First Instance to assess the merits of
the reasons given for the delay and to decide
on the admissibility of such offers in full
knowledge of the facts. This is because the
offers are not only made at an advanced stage
of the procedure, but they may also give rise
to further delays in the course of the proce­
dure and new measures of inquiry may have
to be ordered if the Court considers them
necessary.
139. Therefore the Court of First Instance
correctly applied Article 48(1) of its Rules of
Procedure in justifying the refusal of BStG's
offers of evidence by the fact that no reasons
were given for the delay in offering it.
140. The appellant does not deny that the
offers of evidence appeared for the first time
in the reply and that it gave no reasons for
the delay. It merely seeks to justify it at the
appeal stage, contrary to Article 48(1), which
requires the reasons for the delay to be set
out before the Court of First Instance.
141. Furthermore, the appellant suggests that
the scope of Article 48(1) is narrower than it
really is because it proposes that decisions of
inadmissibility should be limited to offers of
evidence which may delay the proceedings
and, according to the appellant, this was not
the case with regard to its offers of evidence.
The appellant goes on to suggest that Article
48(1) can be used only to refuse offers of new
evidence in support of new facts.
142. Apart from the fact that the appellant
did not set out these arguments before the
Court of First Instance in an attempt to jus­
tify its delay, which obviously means that it
cannot do so before the Court of Justice, this
interpretation of Article 48(1) is not consis­
tent with its wording, as the application of
the provision does not appear to depend on
whether the offer of evidence would actually
affect the proper conduct of the proceedings.
In addition, Article 48(1) does not require
reasons for delay to be given only in relation
to offers to prove new facts. It is clear that
the appellant is making these distinctions in
order to mitigate the breach of that rule which
the Court of First Instance found that it had
committed.
143. Finally, BStG considers, in the alterna­
tive, that the judicial duty of care and the
quasi-criminal nature of the penalties imposed
mean that the Court of First Instance must
examine of its own motion the evidence relied
upon, even if there is a delay in offering it.
Article 48(1) should thus apply only in pro­
ceedings which do not have a punitive pur­
pose.
I - 8451
OPINION OF MR LÉGER — CASE C-185/95 P
144. As I have already mentioned,56 the appel­
lant does not relate to any specific rule the
principles which it relies upon to challenge,
on grounds other than the abovementioned
provisions of Article 48, the refusal by the
Court of First Instance to accept its offers of
evidence. The appellant's suggested ques­
tioning of the validity of that rule requires at
the very least that it should set out before the
Court of Justice an argument with precise
and specific references. As the appellant has
not done so, it is sufficient to observe, once
again, that there are no grounds for making
distinctions between proceedings where
Article 48 itself does not do so.
145. The plea alleging breach of the rules
concerning offers of evidence out of time
must therefore be declared inadmissible.
E — Fifth plea: infringement of the right of
access to the file
146. The appellant claims that the Court of
First Instance infringed the rights of the
defence by refusing its request for access to
the file.
147. In dismissing, first, the request for the
production of all the procedural documents,
the Court of First Instance observed that
'the [appellant] does not deny having received,
in the course of the administrative procedure
before the Commission, all the documents
from the file that were of direct or indirect
concern to it and on which the statement of
objections was based',
and that
'the [appellant] has not produced any evi­
dence to show that other documents were
relevant to its defence',
which led the Court to conclude that
'the [appellant] was enabled to put forward,
as it wished, its views on all the objections
made by the Commission against it in the
statement of objections which was addressed
to it and on the evidence supporting those
objections, mentioned by the Commission in
the statement of objections or in the annexes
thereto, and that, accordingly, the rights of
the defence have been safeguarded'.
The Court added that
'It follows that, both in preparing its applica­
tion and in the proceedings before the Court,
the [appellant's] lawyers have had an oppor­
tunity to examine the legality of the Decision56 — See point 114 above.
I - 8452
BAUSTAHLGEWEBE v COMMISSION
in full knowledge of the circumstances and
fully to provide for the [appellant's]
defence'. 57
148. Second, in dismissing the request for the
production of all the documents from the
Federal Cartel Office and the documents con­
cerning the trilateral negotiations between the
Commission, the Federal Cartel Office and
the representatives of the German undertak­
ings involved in the structural crisis cartel, the
Court of First Instance observed that:
'the [appellant] does not claim that, through
not having such documents at its disposal, it
was unable to defend itself against the objec­
tions raised against it and that it has adduced
no evidence to show how such documents
might contribute to determination of the
present dispute'
and that
'in any event, ... the documents concerned
relate to the structural crisis cartel which does
not, as such, form part of the infringements
covered by the Decision ... and ..., therefore,
the documents relating to that cartel are uncon­
nected with the subject-matter of these pro­
ceedings'. 58
149. BStG contends that the rule that the
Commission must make available to under­
takings involved in a procedure pursuant to
Article 85(1) of the Treaty all the documents,
whether in their favour or otherwise, which
it has obtained during the course of the inves­
tigation applies not only to the administrative
procedure, but also to the procedure before
the Court of First Instance. The Court's
demand for evidence to show that other docu­
ments are relevant to the appellant's defence
fails to take account of the fact that the appel­
lant cannot judge the importance of a docu­
ment the existence and contents of which arc
unknown to it. The importance attached to
the structural crisis cartel in the contested
judgment means that the refusal of the request
for the production of documents relating to
the cartel amounts to an infringement of the
rights of the defence.
150. I have previously had occasion to set
out the reasons why I consider it essential to
make it a fundamental principle of Commu­
nity law that an undertaking involved in a
procedure under Article 85(1) of the Treaty
should have a right of access to the entire file
during the administrative procedure. 59
151. Access to documents, whether incrimi­
nating or exculpatory, makes it possible to
verify not only whether the Commission has
disregarded the latter type, but above all that
it has evaluated them correctly.
57 — Paragraph 34 of the judgment.
58 — Ibid., paragraph 35.
59 — See point 87 et seq. of mv Opinion in BPB Industries and
British Gypsttm v Commission, cited above.
I - 8453
OPINION OF MR LÉGER — CASE C-185/95 P
152. Adherence to this principle during the
administrative procedure has now been facili­
tated by the method described by the Com­
mission, with a view to greater transparency,
in the Twenty-third Report on Competition
Policy of 5 May 1994:
'With the Statement of Objections the Com­
mission sends a copy of all the documents on
which it is relying to establish the existence
of an infringement. It also sends any docu­
ments that, on the basis of careful examina­
tion of the file, appear to go against or con­
tradict the Commission's case (known as
"exculpatory" documents). If an undertaking
thereafter makes a reasoned request that the
Commission re-examine its file to determine
whether it has any further documents which
concern a specified matter that the under­
taking considers useful to its defence, the
Commission will do so, and forward any such
documents.' 60
153. In the present case I do not think that
the requirements relating to the transparency
of the administrative procedure were disre­
garded, during the judicial proceedings, as a
result of the decision of the Court of First
Instance not to grant the request for access to
the file.
154. As the Court of First Instance observed
in paragraph 34 of its judgment, BStG received
all the documents that were of direct or indi­
rect concern to it and on which the statement
of objections was based. Furthermore, in exer­
cising its absolute power to make factual
findings, the Court observed, in paragraph
23, that the letter of 12 March 1987 from the
Director-General for Competition accompa­
nying the statement of objections showed that
'the main documents concerning the case were
enclosed and that, in order to avoid any dis­
closure of business secrets, only the docu­
ments of direct or indirect concern to the
addressee undertaking were enclosed', adding
that 'the undertakings were entitled, in order
to prepare their observations, to examine other
documents held by the Commission, subject
to obtaining prior authorisation'.
155. In order to explain why it did not request
authorisation at that time, BStG states that it
was not represented by a lawyer during the
administrative procedure and that it did not
examine the file since the complaints of which
it had been notified did not hold it respon­
sible.
156. However, after observing that the letter
of 12 March 1987 showed 'that the Commis­
sion considered that the addressee undertak­
ings had infringed Article 85 of the Treaty', 61
the Court of First Instance states that the
appellant was 'one of the addresses of the
60 — COM(94) 161 final. More recently, the Commission has
clarified the procedural rules which aim to reconcile respect
for the rights of the defence, which require effective access
to the file, and protection for confidential information con­
cerning firms. The Commission gives a broad definition of
'communicable documents' which excludes only documents
covered by business secrets, other confidential documents
and internal Commission documents (Commission Notice
97/C23/03 on the internal rules of procedure for processing
requests for access to the file in cases pursuant to Articles
85 and 86 of the EC Treaty, Articles 65 and 66 of the ECSC
Treaty and Council Regulation No 4064/89 (OJ 1997 C 23,
p . 3)). 61 — Paragraph 23 of the judgment.
I - 8454
BAUSTAHLGEWEBE v COMMISSION
statement of objections ..., that it was desig­
nated by name on several occasions in tne
analysis contained in the factual part and in
the legal assessment of the statement of objec­
tions ... and that it received numerous annexes
on which the Commission based its objec­
tions'. 62 The Court adds that the appellant
sent a letter to the Commission in which it
submitted written observations on the state­
ment of objections and asked for a hearing.
157. It is clear from these numerous findings
that BStG was directly implicated by the
statement of objections. The Court of First
Instance was therefore justified in finding that
the fact that BStG did not appoint a lawyer
was a matter of its own choice and that the
administrative procedure was not affected by
a breach of the rights of defence. It should be
added that the appellant does not deny that
it refrained from enquiring as to the Com­
mission's position, in spite of the information
in the statement of objections, concerning the
extent of the appellant's involvement in the
offences in question. Consequently, the Court
of First Instance was justified in finding,
without infringing the rights of defence, that
it was unnecessary to order the Commission
to produce the documents requested, as the
appellant had not adduced any evidence to
show that other documents were necessary
for its defence.
158. On this point I think that the effective
grant of the right of access to the file, as con­
firmed during the administrative procedure,
entitled the Court of First Instance to require
the appellant to produce 'evidence to show
that other documents were relevant to its
defence' 63 before ordering the production of
documents during the judicial proceedings.
There can certainly be no question of requiring
the undertaking concerned to show the effects
which the document requested might have
had on the decision, which presupposes that
the undertaking knew the detailed contents of
the document. This would amount to imposing
on it an impossible burden of proof. M The
undertaking must merely provide the Court
with information showing that the document
could be useful for the purposes of the case.
159. For reasons of the proper administra­
tion of justice, the right of access cannot be
absolute. It must therefore not be possible for
the undertaking concerned to challenge the
failure to disclose any document in the file
without previously identifying it and without
showing — to however limited an extent —
how it will assist that undertaking. 65
160. It would also be necessary for the under­
taking to be aware of the document's cxist-
62 -— Ibid., paragraph 24, emphasis added.
63 — Ibid., paragraph 34.
64 — Sec points 119 and 120 of my Opinion in BPB Industries
and British Gypsum v Commission, cited above.
65 — Point 120 of my Opinion in BPB Industries and British
Gypsum v Commission, cited above. See also the Opinion of
Advocate General Cosmas delivered on 15 July 1997 in Case
C-199/92 P Hüls v Commission, not yet published, points
52 to 56.
I - 8455
OPINION OF MR LÉGER — CASE C-185/95 P
ence, which is precisely what the principle of
access to the entire file aims to safeguard. 66
161. In the BPB Industries and British
Gypsum v Commission judgment the docu­
ments which were not disclosed were identi­
fied, so that the only point in dispute was
whether they 'fell within the categories of
documents which the Commission may legiti­
mately refuse to disclose by reason of their
confidential nature'. 67
162. In the present case, paragraph 23 of the
contested judgment shows that, among the
documents requested, those of direct or indi­
rect concern to the appellant had already been
disclosed, the others being covered by the
obligation of secrecy.
163. It is clear that, under those circum­
stances, BStG could not request the produc­
tion of documents which had already been
sent. With regard to those which were not
disclosed, it is sufficient to observe that, during
the administrative procedure, the appellant
did not try to ascertain their subject-matter
or the reasons why they were confidential,
although it was aware that they would in
principle not be disclosed and the Commis­
sion had informed it of its right to examine
them, subject to authorisation.
164. With regard to the request to examine
the documents sent to the Commission by
the Federal Cartel Office and those con­
cerning the trilateral negotiations between the
Commission, the Federal Cartel Office and
the representatives of the German undertak­
ings involved in the structural crisis cartel, the
grounds for refusing BStG's request do not
appear excessive. 68
165. The contested Decision gives a very
detailed account of the connection between
the structural crisis cartel and the anti­
competitive conduct found to exist, 69 from
which it appears, as the Court of First Instance
confirmed in paragraph 55 et seq. of its judg­
ment, that the cartel did not, as such, form an
integral part of the infringements ascertained
by the Commission. As the appellant was
unable to point to a particular document, on
the ground that the documents were appar­
ently not included in the Commission's file
and therefore had not already been sent to
the appellant, the latter ought at least to have
stated the reasons why it considered it would
be useful to examine them, since they were
not directly connected with the conduct the
subject of complaint, other than that described
by the Decision. It seems to me reasonable,
on the same grounds as those relating to the
66 — The problem of the identification of documents useful to the
defence of undertakings involved in inquiries into a sus­
pected offence now appears to have been resolved by the
Commission Notice cited above, which provides for an enu-
merative list of documents, with continuous numbering of
all the pages of the investigation file (paragraph 1,4).
67 — Paragraph 24.
68 — See point 148 above.
69 — See paragraph 126 et seq. of the Decision.
I - 8456
BAUSTAHLGEWEBE v COMMISSION
procedural documents, that this should be a
preliminary requirement for a request by
BStG for production. The Court of First
Instance was therefore entitled to find that
the appellant had failed to state reasons jus­
tifying access to these documents.
166. The plea alleging infringement of the
right of access to the file must for these rea­
sons be dismissed.
F — Sixth plea: infringement of Article 85(1)
of the Treaty
167. According to BStG, the contested judg­
ment contravenes Article 85 of the Treaty by
failing to assess certain facts put forward by
BStG and by disregarding certain matters
referred to in Article 85(1) and (3).
1. Demarcation of the market
168. BStG contends that the Court of First
Instance did not give sufficient grounds for
part of its judgment dealing with the demar­
cation of the market in question. BStG argues
that, contrary to what the Court says, it never
stated that it could manufacture standard mesh
on its machines or that catalogue mesh and
standard mesh were interchangeable. Under
those circumstances, BStG indicates that it
had no interest in participating in agreements
concerning standard mesh.
169. The appellant adds that it would not
have been a suitable partner for entering into
an agreement with producers from other
Member States because less than 2% of its
production was exported to other Member
States and 99% of those exports were of cata­
logue mesh. BStG complains that the Court
of First Instance did not note this point and
that it failed to examine the submissions based
on the small size of the markets for catalogue
mesh outside Germany and on the insignifi­
cant delivery flows between States.
170. The Commission considers that BStG is
wrongly trying to obtain a review by the
Court of Justice of factual findings.
171. Regarding BStG's capacity to produce
other types of welded steel mesh, the Court
of First Instance found that 'certain under­
takings to which the Decision relates,
including the [appellant], have the capacity to
produce different kinds of welded steel mesh,
so that it may reasonably be concluded that
there is some capacity in the industry to adapt
the production plant in order to produce the
different kinds of welded steel mesh'. 70
70 — Paragraph 41 of the judgment.
I - 8457
OPINION OF .MR LÉGER — CASE C-185/95 P
172. It is unfortunate that the Court of First
Instance did not set out the evidence for its
statement that the appellant had the capacity
to produce several kinds of welded steel mesh.
The power of the Court of First Instance,
recognised by the Court of Justice, to make
factual findings and to evaluate the facts does
not go so far as to permit it to proceed by
mere assertion.
173. However, the reasoning of the Court of
First Instance in paragraph 41 of the judg­
ment is purely by way of addition, as the
word 'also' indicates. Proof of BStG's capacity
to produce types of welded steel mesh other
than catalogue mesh is not a decisive factor in
its interest in concluding agreements relating
to standard mesh if the Court of First Instance
has shown, as we shall see, that the two types
of mesh are interchangeable. Consequently
this cannot be used to challenge the validity
of the judgment. 71
174. Concerning the interchangeability of the
products, the Court of First Instance observed,
on the basis of factual findings and assess­
ments which are not open to review by the
Court of Justice, that 'the prices of standard
mesh and Listenmatten to which the [appel­
lant] refers ... are not far removed from each
other'. 72 It added "that 'the use of standard
mesh on a site where tailor-made mesh should
normally be used is in fact possible where the
price of standard mesh is so low that the
prime contractor can be assured of a signifi­
cant saving, covering the additional costs and
compensating for the technical disadvantages
arising from the change of material'. 73
175. The Court of First Instance has given
sufficiently clear reasons why it considered
that certain circumstances linked to price levels
could induce traders to opt for standard mesh
instead of catalogue mesh, thereby demar­
cating a common market for the two prod­
ucts and showing that the appellant could
have had an interest in participating in agree­
ments within that market.
176. The Court of First Instance also con­
firmed the existence of that interest in making
it clear that this price situation favouring
interchangeability 'existed for part of the
period covered by the agreements'. 74
177. It must be added that the parts of the
judgment relating to the appellant's produc­
tion of other types of mesh and to the inter­
zi — See, in particular, De Compte v Parliament, cited above,
paragraph 123. With regard to the validity of a judgment
certain grounds of which reveal an infringement of Com­
munity law, but the operative part of which appears well
founded on other legal grounds, see the judgments in Case
C-30/91 P Lesteile v Commission [1992] ECR 1-3755, para­
graph 28, and Case C-36/92 P SEP v Commission [1994]
ECR I-1911, paragraph 33.
72 — Paragraph 39 of the judgment.
73 — Paragraph 40 of the judgment, emphasis added.
74 — Ibid.
I - 8458
BAUSTAHLGEWEBE v COMMISSION
changeability of standard mesh and catalogue
mesh are not supported by the appellant's
alleged acknowledgement that they were true,
contrary to what it claims.
At most, the Court of First Instance states in
paragraph 38 of the judgment that the Com­
mission and BStG were in agreement on the
description of the market in question, whereas
it is clear from the judgment that there was
an appreciable difference in the parties'
approach.
In actual fact, the Court of First Instance
found that BStG drew a distinction between
standard mesh, catalogue mesh of the Letter-
matten or semi-standardised type, catalogue
mesh of the Listenmatten type and tailor-
made mesh, claiming that the first two types
are very similar to each other and that the last
two types are also similar to each other but
nevertheless display essential differences from
the first two. The Court concluded from this
that the Decision says nothing to the con­
trary where it states that 'a high degree of
substitutability exists, especially between stan­
dard mesh and catalogue mesh' and 'the rel­
evant product market can therefore be said to
be the market for welded steel mesh in gen­
eral, within which there is a sub-market for
tailor-made mesh'. 75
It seems to me that BStG's distinction between
a group consisting of standard mesh and scmi-
-standardised mesh, on one hand, and a group
consisting of catalogue mesh and tailor-mado
mesh, on the other, is not the same as the
Commission's distinction between catalogue
mesh and tailor-made mesh. At this point,
therefore, the Court gave contradictory
grounds for its judgment.
178. However, I do not think that this defec­
tive reasoning can affect the validity of the
contested judgment because the reasoning of
the judgment relating to the potential substi­
tution of the products in question is sufficient
to justify the appellant's interest in con­
cluding agreements on the market in ques­
tion. 76
179. With regard to the alleged absence or
reasons concerning the small share of BStG's
production which is exported, the fact that
the exported products were almost entirely
catalogue mesh, and concerning the insignifi­
cance of the markets for catalogue mesh out­
side Germany and international flows, the
Court of First Instance amplified the grounds
for its earlier finding that the different kinds
of welded steel mesh are interchangeable.
180. In paragraph 136 of the judgment the
Court stated that 'there is a link between the
prices of the various kinds of welded steel
75 — Paragraph 38 of the judgment.
76 — See point 173 and the related footnote, along with point 174
et seq. of this Opinion.
I - 8459
OPINION OF MR LÉGER — CASE C-185/95 P
mesh, since the price of standard mesh has an
influence on that of catalogue mesh and tailor-
made mesh ... As an exporter of catalogue
mesh, the [appellant] must inevitably have
wished to maintain the prices of standard
mesh within a certain bracket, as compared
with catalogue mesh'.
181. Above all, in replying to the appellant's
complaints, the Court added that 'those
exports [of catalogue mesh by BStG] were
not particularly limited in absolute terms since
... they reached 18 000 tonnes in 1985,
including 5 128 tonnes to other Member States
of the Community of Six, reflecting export
turnover within the Community of DM 4
969 032'.
182. It is clear from all of the foregoing that
the Court of First Instance did not fail to
fulfil its obligation to state reasons and that
the limb of the sixth plea dealing with this
point must be declared unfounded.
2. Application of Article 85(1) of the Treaty to
the alleged agreement between BStG and Tré­
fìlunion
183. In paragraphs 67 and 68 of its judgment
the Court of First Instance stated that 'the
Commission has established to the requisite
legal standard the facts set out in the first
paragraph of point 140 of the Decision, namely
that Tréfìlunion undertook not to lodge a
complaint against the structural crisis cartel
and that the [appellant] would refrain from
exporting catalogue mesh to France for a
period of two to three months' and the Court
confirmed that 'the Commission was right to
consider that they constituted an infringe­
ment of Article 85(1) of the Treaty'.
184. BStG claims that the judgment fails to
indicate why the agreements with Tréfìlunion
constituted an infringement of Article 85(1)
of the Treaty. The appellant complains that
the Court of First Instance did not assess the
facts by reference to the requirements laid
down by that provision.
185. The appellant contends that the Court
of First Instance did not examine its submis­
sion that Tréfìlunion's undertaking not to
lodge a complaint with the Commission
against the appellant was a political decision
and did not amount to a restriction of com­
petition. BStG adds that the Court likewise
did not state its views on whether
Mr Müller's undertaking not to export cata­
logue mesh from the Gelsenkirchen works to
France for two or three months was also
capable of bringing about such a restriction
or of affecting trade between Member States.
I - 8460
BAUSTAHLGEWEBE v COMMISSION
186. The Commission submits that the Court
made a proper assessment of the contested
facts by attaching to them the applicable rule.
The Commission adds that some of the appel­
lant's arguments contain new factual allega­
tions which cannot be considered at the appeal
stage, but this is disputed by BStG.
187. The appellant's complaint relating to the
alleged breach of Article 85(1) of the Treaty
must be construed as alleging a lack of rea­
soning in the judgment of the Court of First
Instance or a failure to reply to submissions,
which amounts to the same thing.
188. The Court of First Instance found that
'the Decision (point 140) holds that the [appel­
lant] engaged in general concertation with
Tréfilunion to limit mutual penetration of
their products in Germany and France, that
conduct being manifested in three ways: Tré­
filunion would not lodge a complaint with
the Commission against the German struc­
tural crisis cartel; the [appellant's] works in
Gelsenkirchen would not export catalogue
mesh to France for a period of two to three
months; and, finally, the two parties agreed to
make their future exports subject to quo­
tas'. 77
189. From an analysis of two internal memo­
randa, one by Mr Marie, a director of Tréfil­
union, dated 16 July 1985, and the other by
Mr Müller, dated 27 August 1985, the Court
concluded that 'the Commission has estab­
lished to the requisite legal standard that there
was concertation between the [appellant] and
Tréfilunion regarding the first two matters
referred to'. The Court considered that
'Mr Marie's commitment not to lodge a com­
plaint against the German cartel must be seen
as an agreement to follow a particular course
of conduct towards a competitor in exchange
for concessions from that competitor, forming
part of an agreement in breach of Article 85(1)
of the Treaty'. 78
190. It is therefore clear that, by specifying
the role played in the formation of the agree­
ment by Mr Marie's undertaking not to lodge
a complaint against the structural cartel, the
Court expressly replied to BStG's complaint
concerning the Decision. The words used by
the Court show that this conduct is not in
itself anti-competitive but that it is one of the
elements of the agreement which gave rise to
concessions in the form of a restriction of
exports for a certain time.
191. With regard to the fact that the judg­
ment states no reasons relating to the absence
of anti-competitive effects and of interference
with trade between Member States, which are
said to result from Mr Müller's undertaking
not to export, it must be observed that BStG
77 — Paragraph 63 of the judgment. 78 — Paragraph 64.
I - 8461
OPINION OF MR LÉGER — CASE C-185/95 P
did not raise those complaints before the
Court of First Instance, so that the latter was
justified in confining the statement of reasons
in the judgment to the submissions relied
upon by the appellant.
192. It is clear from paragraph 61 of the
judgment, which summarises BStG's submis­
sions to the Court of First Instance, that those
submissions merely contend that the memo­
randa written by Mr Marie and Mr Müller do
not prove the conclusion of an agreement.
Consequently, apart from the argument that
the decision not to lodge a complaint (to
which the Court replied, as has been seen)
did not have the effect of restricting competi­
tion, no further arguments or submissions
were raised to which the Court should have
replied, and this is confirmed by BStG's appli­
cation and reply.
193. Furthermore, if such is BStG's inten­
tion, it cannot be allowed to submit new pleas
before the Court of Justice. The Court's
case-law consistently refers to Article 48(2) of
the Rules of Procedure of the Court of First
Instance, which prohibits the introduction of
new pleas in law in the course of the proceed­
ings unless they are based on matters of law
or of fact which come to light in the course
of the procedure. The Court of Justice has
observed that 'to allow a party to put for­
ward for the first time in proceedings before
the Court of Justice a plea in law which it has
not raised before the Court of First Instance
would be to allow it to bring before the Court
— whose appellate jurisdiction is limited —
a case of wider ambit than that which came
before the Court of First Instance. In an
appeal, the Court's jurisdiction is thus con­
fined to a review of the findings of law on the
pleas argued at first instance.' 79
194. It must therefore be found, as I have
just stated, that those pleas were not discussed
before the Court of First Instance.
195. The second limb of the sixth plea must
therefore be ruled partly unfounded and partly
inadmissible.
3. Application of Article 85(1) of the Treaty to
the alleged quota and price agreements
between BStG and the Benelux producers
196. BStG complains that the Court of First
Instance erred in law in finding that the Com­
mission had established to the requisite legal
standard that BStG took part in price and
quota agreements with the Benelux producers
relating to the German market. The appellant
contends that the Court failed to take account
of relevant essential facts on which the appel­
lant relied and which none the less cast doubt
79 — See Commission v Brazzelli Lualdi, cited above, paragraphs
57 to 59, and the orders in San Marco v Commission, cited
above, paragraphs 49 and 50, and in Case C-49/96 P Pro-
goulis v Commission [1996] ECR I-6803, paragraphs 31 to
33.
I - 8462
BAUSTAHLGEWEBE v COMMISSION
on the interpretation of the documents on
which the contested Decision is based. The
appellant adds that the Court misrepresented
the evidence before it.
197. As the Commission correctly observes,
BStG is seeking to present as a question of
law its criticism of the assessment of the facts
by the Court of First Instance.
198. I take the view that the appellant's argu­
ment does not meet the requirements laid
down, according to the settled case-law of the
Court of Justice, for appeals to be admis­
sible. 80
199. It is clear from the Treaty provisions,
the EC Statute of the Court of Justice and its
Rules of Procedure, cited in point 105 above,
that an appeal must indicate specifically the
parts of the judgment which the appellant
seeks to set aside and the arguments which
specifically support such an application. The
Court has held that this requirement is not
fulfilled where the appeal merely repeats or
reproduces literally the pleas and arguments
presented before the Court of First Instance.
In reality, such an appeal merely seeks a
re-examination of the application to the Court
of First Instance, which, under Article 49 of
the EC Statute of the Court of Justice, is out­
side the latter's jurisdiction.
200. In paragraphs 77 to 79 of the appeal,
BStG reproduces lengthy passages from its
replies to the questions of 22 April 1993 from
the Court of First Instance, in which the
appellant gives its own interpretation of some
of the documents on which the contested
Decision is based. In those observations, which
it had already put to the Court of First
Instance, BStG explains in essence that the
documents in question show that Mr Müller
acted as the representative of the Fachver­
band and the governing board of the German
structural crisis cartel association, and not as
the chairman of the board of BStG. In these
passages it also denies that the documents
produced show that BStG was involved in
establishing an agreement.
201. The appellant is thus merely contending
that the Court of First Instance did not take
account of its arguments, but does not refer
to any specific plea in law.
202. It also follows from the relevant provi­
sions that it is for the Court of First Instance
alone to assess the value which should be
attributed to the documents produced before
it, provided that the general principles of law
and the procedural rules on the burden of
80 — Sec, in particular, the judgments of the Court ofJustice cited
in footnote 42 and the orders in Case C-26/94 P X vCom­
mission [1994] ECR I-4379, paragraphs 10 to 13, and in
Koelman v Commission, cited above, paragraphs 52 and 53.
Sec, more specifically, the order in San Marco vCommis­
sion, cited above, paragraphs 59 and 60.
I - 8463
OPINION OF MR LÉGER — CASE C-185/95 P
proof and the production of evidence are
observed.
203. We have seen, when examining the other
pleas, that the Court of First Instance observed
the rules and principles applying in the matter
of evidence. So far as the present plea is con­
cerned, BStG maintains none the less that the
Court misrepresented the evidence before it,
but this is not proved by BStG inasmuch as
it merely reproduces its original argument.
204. Further, contrary to what BStG claims,
the Court of First Instance did not fail to
examine its arguments. This is clear beyond
doubt from paragraphs 84 to 87 of the con­
tested judgment, which summarise BStG's
complaints in support of this limb of the sixth
plea. Reading them confirms that they repeat
the appellant's reasoning at the stage of the
original application. It must also be noted
that in paragraph 92 of the judgment the
Court of First Instance replied expressly to
BStG's argument that Mr Müller acted as
chairman of the Fachverband Betonstahl­
matten or of the governing board of the cartel
and likewise, in paragraph 90 et seq., the
Court set out the reasons why it considered
that BStG was involved in the agreements
with Benelux producers.
205. Consequently BStG has not adduced
any serious arguments to show that the Court
of First Instance erred in law in its assess­
ment, nor has it specified the parts of the
judgment which it seeks to have set aside. In
reality, the appellant is not pleading the breach
of any rule of law but is merely disputing the
assessment of the facts by the Court of First
Instance.
206. The third limb of the sixth plea must
therefore be declared inadmissible.
4. Non-application of Regulation No 67/67 to
the exclusive distribution agreements between
BStG, on the one hand, and Bouwstaai Roer­
mond BV and Arbed SA afdeling Nederland,
on the other
207. According to BStG, the contested judg­
ment does not contain a sufficient statement
of reasons. First, the Court of First Instance
failed to show that the agreements with Bou-
wstaal Roermond BV and Arbed SA afdeling
Nederland involved a prohibition of parallel
imports. On this point, BStG claims that
paragraph 103 of the judgment shows that the
Court itself was uncertain.
208. Second, the appellant argues that the
Court of First Instance did not rule on the
Commission's toleration of the agreements in
question, which had been submitted to it
I - 8464
BAUSTAHLGEWEBE v COMMISSION
when the steel industry of Luxembourg and
the Saar was being reorganised.
209. The Commission submits that the appel­
lant's argument that parallel imports were not
prohibited in the agreements is a question of
assessment of the facts by the Court of First
Instance and is therefore not open to appeal.
The Commission adds that the submission
concerning its supposed toleration of the
agreements in question is a new plea which
must be declared inadmissible.
210. I think I must agree with the Commis­
sion.
211. I have already mentioned the principles
developed by the Court's case-law concerning
the admissibility of appeals on a point of law.
Those principles exclude the assessment of
facts from the Court's jurisdiction. 81
212. The appellant's criticism of the Court of
First Instance judgment falls within this logic
and cannot be treated as disputing the legal
assessment of the facts.
213. It is not disputed that an exclusive dis­
tribution agreement with clauses prohibiting
parallel imports or having comparable effects
cannot be covered by Regulation No 67/67.
The point in issue, however, is whether the
agreements in question come within that cat­
egory on the ground that they prevent par­
allel imports.
214. Only the first of these two problems
relates to the legal assessment of the facts. By
taking this approach, the Court of First
Instance shows that, because of the nature
which they are found to have, the facts fall
within a particular legal category from which
legal consequences flow. When, further on,
the Court assesses the facts, it carries out, in
contrast, a concrete, detailed examination of
those facts in order to determine their salient
characteristics. The Court's approach then
requires a factual examination of the docu­
ments in the file in the sense that this approach
takes account of the specific features of the
case before it. In the present case, the Court
of First Instance examined the provisions of
the agreements and the conditions for imple­
menting them in order to identify their par­
ticular nature.
215. I accordingly take the view that it is an
assessment of facts when the Court observes
that, as the agreements stipulate that
throughout their currency Bouwstaai Roer­
mond BV and Arbed SA afdeling Nederland
are not to make direct or indirect deliveries to
the Federal Republic of Germany, 'the
meaning of the words "directly or indirectly"
... goes beyond a straightforward commit-81 — See point 198 et seq. of this Opinion.
I - 8465
OPINION OF MR LÉGER — CASE C-185/95 P
ment by a supplier only to deliver to BStG
products for resale'. 82
216. The Court of First Instance observes
that 'this view is based on two factors. First,
Tréfilarbed Roermond had undertaken
expressly not to make deliveries of any kind
... even deliveries not intended for resale. Sec­
ondly, the word "indirectly" could be inter­
preted by the reseller as committing the sup­
plier to take to take the action necessary to
preclude deliveries to Germany from other
countries, that is to say to control the other
exclusive distributors with a view to prohib­
iting them from exporting to Germany'. 83
217. The Court adds that 'the abovemen-
tioned contractual clauses [may be interpreted]
in the light of the complaints from the appli­
cant contained in its letter of 26 September
1979 ... in which it criticises Arbed regarding
indirect deliveries to Germany "through
Eurotrade, Alkmaar"', which the Court finds
is 'conducive to the conclusion that there was
absolute territorial protection contrary to the
spirit and letter of Regulation No 67/67'. 84
218. As the appellant observes, the judgment
may appear to be based on a dubious ground
when, in paragraph 103, the Court of First
Instance states that 'the word "indirectly"
could be interpreted by the reseller as com­
mitting the supplier to take the action neces­
sary to preclude deliveries to Germany from
other countries'. 85
219. It would be possible to find once again
that the ground in question is not the only
ground in support of the Court's assessment
of the facts before it. Assuming that this part
of the reasoning were invalid, it would follow
that the account of the other factors estab­
lishing territorial protection would be suffi­
cient to consider that the obligation to state
reasons had been fulfilled. The fact that this
particular ground is superfluous would mean
that its questionable nature should not have
radical consequences.
220. However, I think that the meaning of
the ground in question is explained and rein­
forced by other parts of the judgment and
that it is the first stage in a more general pro­
cess of reasoning. The relative uncertainty
attaching to the word 'indirectly' is to a large
extent removed by paragraph 105 of the judg­
ment, which refers to complaints by the appel­
lant to Arbed concerning indirect deliveries
to Germany. This reference to the practices
arising from the agreements confirms the
Court's assumption, based on the actual pro­
visions of those agreements, that the true
objective of the contracting parties was ter-
82 — Paragraphs 102 and 103 of the judgment.
83 — Paragraph 103.
84 — Paragraph 105. 85 — Emphasis added.
I - 8466
BAUSTAHLGEWEBE v COMMISSION
ritorial protection. The clause prohibiting the
making of deliveries 'indirectly' to Germany
is therefore only one item of evidence among
others.
221. As can be seen, the ground in question
appears to fulfil the Court's obligation to state
reasons when read in conjunction with the
other parts of the reasoning.
222. Finally, paragraph 98 of the contested
judgment shows that the appellant had already
maintained before the Court of First Instance
that the agreements in question were not
intended to prevent parallel imports. It is clear
that BStG's complaint, which is identical to
that raised before the Court of First Instance,
seeks to question that Court's assessment of
the facts.
223. Consequently, the part of the appellant's
argument concerning the very existence of
stated reasons must be declared unfounded,
while the part relating to the substance of
those reasons must be dismissed as inadmis­
sible because it seeks to challenge the Court
of First Instance's assessment of the facts,
224. I also take the view that the plea alleging
that the Commission tolerated the exclusive
distribution agreements must be dismissed
inasmuch as the Court of First Instance did
not fail to comply with its obligation to state
reasons.
225. It is true that BStG stated before the
Court of First Instance that 'according to the
information in the possession of the [appel­
lant's] contracting partner, the agreements
were ... submitted on several occasions to the
approval procedure with the Commission in
connection with the reorganisation of the
Luxembourg and Saar steel industry, and the
Commission never expressed any doubts as
to their legality', 86 and that the Court did not
state any views on the subject.
226. To establish the extent of the Court's
obligation to state reasons, it is necessary to
determine the exact nature of the observa­
tions in question.
227. If these constituted a plea in law, they
could not have been introduced in the course
of proceedings, at the stage of lodging the
reply, unless they were accompanied by proof
that they were based on matters of law or fact
which came to light in the course of the pro­
cedure, which is unlikely and, in any event,
has not been proved. In that case, however,
the Court would at least have had to rule on
the admissibility of the plea.
86 — Paragraph 17 of the reply.
I - 8467
OPINION OF MR LÉGER — CASE C-185/95 P
228. However, it seems to me that BStG's
complaint must be regarded as an argument
in support of a plea already presented at the
stage of the application, rather than as a plea
stricto sensu. 87
229. Although the Court of First Instance
has a duty to give a ruling on all the pleas in
law and arguments raised by the parties, I
consider that it need not do so where the
arguments relied upon do not fulfil certain
minimum conditions.
230. It seems to me contrary to the principles
of the proper administration of justice to
require the Court of First Instance to reply to
every argument of the parties where these are
found to be merely general and unspecified
allegations which do not appear to be sup­
ported by any proof whatever. Such a require­
ment, on the pretext of protecting the parties
against a denial of justice or failure to state
reasons, would be likely to encourage the
proliferation of unfounded complaints, some
of which could arise from the parties' sole
aim of weakening the Court's judgment in
order to secure the option of challenging its
validity, if necessary.
231. In the form in which it is worded, BStG's
argument has the characteristics of complaints
of this kind. First, it takes the form of a mere
allegation consisting of a non-specific refer­
ence to information which the appellant admits
it does not possess because it is said to be in
the hands of its contracting partner. Second,
BStG makes no offer of any kind to substan­
tiate the truth of its complaints. Having regard
to these circumstances, I am bound to con­
clude that the substance of the complaint was
not such as to justify dealing with it sepa­
rately from the plea relating to the applica­
tion of Regulation No 67/67, to which the
Court of First Instance did reply.
232. I therefore propose that the Court find
that BStG's argument did not call for a sepa­
rate reply from the Court of First Instance
and that the complaint of the lack of a state­
ment of reasons be dismissed as unfounded.
233. The fourth limb of the sixth plea must
accordingly be dismissed in its entirety.
5. Application of Article 85(1) of the Treaty to
the quota and price agreements for the Benelux
market
234. The Court of First Instance found that
'the Commission has established to the req­
uisite legal standard that the [appellant] par-
87 — The Commission's toleration of the agreements in question
is pleaded by BStG to support the plea that they are
exempted pursuant to Regulation No 67/67. This plea was
raised when the action was brought before the Court of
First Instance. The reply shows that the appellant considers
that the exemption of the agreements is confirmed by the
fact that the Commission raised no objection when it was
notified of the agreements. For the distinction between an
argument and a plea, see the judgment in Case C-153/96 P
De Rijk v Commission [1997] ECR I-2901, paragraph 19,
and my Opinion in that case, point 21.
I - 8468
BAUSTAHLGEWEBE v COMMISSION
ticipated in the price agreements on the
Benelux market and in the agreements on
quantitative restrictions on German exports
to the Benelux and the communication of
export figures'. 88
235. BStG contends that the Court of First
Instance misapplied Article 85(1) of the Treaty
because it failed to take account of important
information which BStG had put before it.
The appellant states that the Court of First
Instance overlooked the fact that BStG
employees attended producers' meetings only
as representatives of the structural crisis cartel
association or of the Fachverband, and not as
representatives of BStG. The appellant points
out that it was not interested in price agree­
ments relating to standard or semi-standard
mesh, and that there were few meetings at
which German representatives were present.
236. The appellant adds that the reasoning of
the judgment is contradictory and contends
that mere presence at a meeting during which
other undertakings conclude an agreement on
prices cannot amount to a breach of the
abovementioned provision if the undertaking
in question does not itself distribute the prod­
ucts which are the subject of the agreement.
As BStG exports catalogue mesh to the
Benelux countries, it cannot be accused of
participating in agreements relating to the
prices of standard mesh.
237. The Commission takes the view that the
appellant's complaints seek to question the
Court of First Instance's assessment of the
evidence before it, which is not a question of
law subject to review by the Court of Justice,
unless that evidence was misrepresented. The
Commission adds that such misrepresenta­
tion has not been proved. Finally, it observes
that the reasoning of the Court of First
Instance is not contradictory.
238. Once again, I wish merely to refer to
my earlier remarks relating to the Court's
settled case-law regarding the exclusive juris­
diction of the Court of First Instance to make
findings as to the facts and to examine the
evidence before it. 89
239. Regarding the issue of Mr Müller's
capacity, the Court of First Instance observed
that it could not 'for the same reasons as those
set out in paragraph 92 above, accept the
[appellant's] argument that Michael Müller,
its chief executive, acted only in his capacity
as chairman of the Fachverband Betonstahl­
matten or of the supervisory body of the
cartel and not as chairman of the [appel­
lant]'. 90
240. The Court considered that 'that argu­
ment is not supported by any evidence'. It
88 — Paragraph 137 of the judgment.
89 — See points 105 and 198 et seq. above.
90 — Paragraph 135 of the judgment.
I - 8469
OPINION OF MR LÉGER — CASE C-185/95 P
added that 'at the hearing, Mr Müller stated
that "throughout the term of the cartel agree­
ment, he never acted in the name of the asso­
ciation for matters of any importance what­
soever on the German or other markets'". 91
241. The Court of First Instance acted entirely
in accordance with the rules on the burden of
proof in finding that the appellant had not
proved its statements. As it was not disputed
that Mr Müller, BStG's representative, had
attended meetings designed to fix prices, 92
the Court rightly took the view that it was
for BStG to prove that he had acted in other
capacities.
242. The Court of First Instance was there­
fore entitled, in its absolute discretion, to find
that this had not been proved, and it is thus
not for the Court of Justice to question that
conclusion.
243. The Court of First Instance likewise
gave an express ruling on BStG's interest in
concluding agreements on the Benelux market.
As I have already mentioned, 93 the Court of
First Instance stated that it could not 'accept
the [appellant's] argument as to its lack of
interest in participating in the price agree­
ments by reason of the small quantities of
catalogue mesh exported by it. It must be
observed, first, that those exports were not
particularly limited in absolute terms since ...
they reached 18 000 tonnes in 1985, including
5 128 tonnes to other Member States of the
Community of Six, reflecting export turnover
within the Community of DM 4 969 032. Sec­
ondly, it must be borne in mind that there is
a link between the prices of the various kinds
of welded steel mesh, since the price of stan­
dard mesh has an influence on that of cata­
logue mesh and tailor-made mesh ... As an
exporter of catalogue mesh, the [appellant]
must inevitably have wished to maintain the
prices of standard mesh within a certain
bracket, as compared with catalogue mesh.
Thirdly, and finally, it must be found that the
agreements to which the applicant was a party
were on a basis of reciprocity. BStG complied
with the Benelux market prices and quotas
and the Benelux producers did the same on
the German market.' 94
244. This careful reasoning shows that the
Court of First Instance carried out a proper
examination and sufficiently established the
nature of the appellant's potential interest in
participating in agreements relating to the
prices of standard or semi-standard mesh.
Consequently, here again the Court's conclu­
sion cannot be questioned without contra­
vening the jurisdiction rules.
91 — Paragraph 92.
92 — Paragraph 131.
93 — Points 179 to 182 above. 94 — Paragraph 136 of the judgment.
I - 8470
BAUSTAHLGEWEBE v COMMISSION
245. Finally, the judgment shows that the
Court did not overlook the meetings attended
by the appellant's representatives since it
observes that BStG 'admits its participation
in certain meetings' 95 and finds that 'the
[appellant] participated in six meetings', 96 so
that it cannot be argued that the Court of
First Instance disregarded this point. In fact
it appears that, in exercising its absolute power
to make findings as to the facts, the Court
did not consider that the relative proportion
of meetings which the appellant's representa­
tives could have attended was such as to
reduce the company's responsibility. On this
point, as on the previous points raised by
BStG, the Court of Justice would have juris­
diction only if the evidence submitted to the
Court of First Instance had been misrepre­
sented.
246. However, the appellant has neither
proved nor claimed that such misrepresenta­
tion occurred. This is shown by the fact that
it merely reproduces in its appeal part of its
replies to the Court's questions, 97 which, fur­
thermore, were partly summarised by the
Court in paragraph 125 of the judgment. The
passage reproduced is accompanied only by
the argument that the Court of First Instance
ignored the appellant's statement, thus
showing that the purpose of its claim is to
obtain a review of its application to the Court
of First Instance which, pursuant to Article
49 of the EC Statute of the Court of Justice,
is outside the jurisdiction of the latter.
247. BStG has thus not adduced any serious
arguments to show that the assessment by the
Court of First instance was mistaken in law,
and it fails to specify the parts of the judg­
ment which it seeks to have set aside. In fact,
the appellant does not claim that any rule of
law whatever has been broken, but merely
disputes the factual findings of the Court of
First Instance.
248. With regard to BStG's allegation that
the grounds of the judgment are contradic­
tory, it must be said that a reading of the pas­
sage directly challenged and of BStG's argu­
ments does not, as I shall show, reveal any
contradiction whatever in the reasoning of
the Court of First Instance.
249. The appellant cites paragraph 132 of the
Court's judgment, in which it 'considers that,
having regard to the manifestly anti­
competitive object of the meetings, as evi­
denced by the numerous telexes from
Mr Peters to Tréfilunion, the [appellant], by
taking part without publicly distancing itself
from what occurred at them, gave the impres­
sion to the other participants that it sub­
scribed to the results of the meeting and
would act in conformity with them ... This
finding is not altered by the fact that, at the
meetings concerned, the German producers
were criticised by the others. It is apparent
from the telex messages from Mr Peters ...
that the [appellant] was regarded as the under­
taking which should, and did in fact, encourage
certain German producers to observe the
prices on the Benelux market.'
95 — Paragraph 131.
96 — Paragraph 132.
97 — Paragraphs 91 and 93 of the appeal.
I - 8471
OPINION OF MR LÉGER — CASE C-185/95 P
250. This passage, which infers BStG's
responsibility from its participation in the
meetings, is challenged by the appellant on
the grounds that it had no interest in con­
cluding agreements on goods which it did not
produce and that Mr Müller attended the
meetings only in his capacity as representa­
tive of the structural crisis cartel.
251. Consequently these complaints do not
seek to challenge any internal contradiction
in the reasoning of the Court of First Instance,
but seek once again to have the Court of Jus­
tice re-examine the factual findings or the
assessment of the evidence by the Court of
First Instance on these two points in other
passages of its judgment.
252. It is unnecessary to reconsider these
arguments as they have already been refuted.
Suffice it to observe that they cannot refute
the Court's reasoning in paragraph 132 of the
judgment or even reveal any contradiction in
that reasoning. BStG's arguments must there­
fore be rejected.
253. On the basis of all of the foregoing I
propose that the sixth plea be dismissed.
G — Seventh plea: breach of Article 15 of
Regulation No 17
254. BStG refers in particular to Article 15(2)
of Regulation No 17, which reads as follows:
'The Commission may by decision impose
on undertakings or associations of undertak­
ings fines of from 1000 to 1 000 000 units of
account, or a sum in excess thereof but not
exceeding 10% of the turnover in the pre­
ceding business year of each of the undertak­
ings participating in the infringement where,
either intentionally or negligently:
(a) they infringe Article 85(1) ...
In fixing the amount of the fine, regard shall
be had both to the gravity and to the dura­
tion of the infringement.'
I - 8472
BAUSTAHLGEWEBE v COMMISSION
255. In support of its plea alleging breach of
this provision, BStG sets out the following
arguments:
— the Commission did not carry out a sepa­
rate assessment of the mitigating and aggra­
vating circumstances of the infringements;
— the appellant's participation in the struc­
tural crisis cartel was regarded as an
infringement on its part;
— the fact that the appellant was unaware
that the structural crisis cartel and the
measures taken to protect it were illegal
was not taken into account;
— even the reduced fine imposed on it is dis­
proportionate because a number of miti­
gating circumstances were not taken into
account.
1. No separate assessment of mitigating and
aggravating circumstances
256. BStG criticises the Court of First Instance
for finding that the reasons stated in the
Decision in relation to the amount of the fine
were sufficient. It contends that the Court
erred in finding that the Commission had car­
ried out a separate assessment of the criteria
determining the gravity of the infringements.
257. The Commission replies that the appel­
lant's complaint is inadmissible because it
repeats before the Court of Justice the argu­
ments set out before the Court of First
Instance.
258. The Court of Justice has on several occa­
sions given rulings on pleas of mistaken assess­
ment by the Court of First Instance of the
grounds of a decision imposing a fine in com­
petition matters. Such pleas have not been
dismissed by the Court of Justice as inadmis­
sible. 98
98 — See, inter alia, Cases C-241/91 P and C-242/91 P RTE and
ITP v Commission [1995] ECR I-743, paragraph 95 et seq.;
BPB Industries and British Gypsum v Commission, cited
above, paragraphs 6 and 11; Case C-278/95 P Siemens v
Commission [1997] ECR I-2507, paragraph 10 et seq.; and
the order in Koelman v Commission, cited above, paragraph
62 et seq.
I - 8473
OPINION OF MR LÉGER — CASE C-185/95 P
259. It is clear from the case-law of the Court
of Justice that the Court of First Instance's
assessment of the grounds of Commission
' decisions relating to proceedings for the appli­
cation of Article 85 of the Treaty is a ques­
tion of law which is open to review by the
Court of Justice. The Commission's objec­
tion that the appellant's complaint is inadmis­
sible must for that reason be dismissed.
260. In the present proceedings, the appellant
claims that the Decision did not specify the
misconduct alleged against it or identify clearly
the different circumstances, in its favour or
otherwise, surrounding the facts in question
which the Commission took into account in
fixing the fine.
261. In support of its complaints the appel­
lant cites point 203 of the Decision, which
states that 'in fixing the individual fines, the
Commission has taken into account the degree
and duration of the involvement of the under­
takings involved, together with their financial
and economic position'. BStG believes that
this illustrates the Commission's failure to
assess individually the mitigating and aggra­
vating circumstances taken into account for
the purposes of the fine.
262. It should be observed that the statement
of reasons required by Article 190 of the EC
Treaty must show clearly and unequivocally
the reasoning of the Community authority
which originated the act complained of, so
that the persons concerned are informed of
the reasons for the act adopted and so that
the Court of Justice can carry out a review.
263. Let me say straightaway that neither the
contested Decision nor the judgment of the
Court of First Instance fails in respect of the
obligation to state reasons.
264. Firstly, it appears that each of the para­
graphs of the judgment examining the appel­
lant's alleged infringements gives a detailed
summary of the parts of the Decision relating
to BStG. The Court of First Instance refers
precisely to the relevant passages of the Deci­
sion which clearly identify BStG's individual
conduct and the part it played in setting up
or operating each of the agreements. 99It is
also significant that BStG did not consider it
necessary to give particulars of those parts of
the passages which might undermine the Com­
mission's statement of the reasons for its
Decision, which demonstrates that there was
no serious deficiency in the statement.
265. Secondly, in reaching the conclusion that
the Decision, read as a whole, provided the
appellant with the information necessary for
it to establish whether the Decision was
founded, and enabled the Court of First
99 — The paragraphs of the judgment referring to the relevant
passages of the Decision are shown in the footnotes to point
6 of this Opinion.
I - 8474
BAUSTAHLGEWEBE v COMMISSION
Instance to review the legality of the Deci­
sion, the Court made the following observa­
tions:
'The Court notes that in its reading of the
Decision, the applicant artificially isolates a
part of it, whereas, since the Decision consti­
tutes a single whole, each part of it should be
read in the light of the others. The Court
considers that the Decision, read as a whole,
provided the applicant with the indications
necessary for it to identify the different
infringements for which it was criticised,
together with the specific features of its con­
duct and, more particularly, information con­
cerning the duration of its participation in the
various infringements. The Court also finds
that, in its legal assessment in the Decision,
the Commission sets out the various criteria
by which it measured the gravity of the
infringements imputed to the applicant and
the various circumstances which palliated the
economic consequences of the infringe­
ments.' 100
266. The Court of First Instance rightly
pointed out that the Decision could not be
challenged on the basis of a partial reading.
Point 197 et seq. of the Decision, cited by the
appellant in its written observations, are not
sufficient to establish that detailed individual
reasons were not given because, as we have
just seen, the Decision sets out the acts attrib­
utable to BStG for each infringement, although
in different places. As clarity is required in
relation to proof of the responsibility of more
than one party and to the existence of a
number of offences, it is not necessary to
group together in the same passage of the
Decision the different elements of the appel­
lant's conduct, whether in its favour or oth­
erwise. The Court was therefore right to
observe that the various criteria for measuring
the gravity of the infringements and the miti­
gating circumstances had been set out, and
this has not been contested in detail by BStG.
267. Thirdly, as regards the aggravating cir­
cumstances found against the appellant, the
Court of First Instance found that the appel­
lant 'has not in any way countered the evi­
dence produced by the Commission as to its
active role in the agreements, as indicated by
the telex of 15 December 1983 (... points 93
and 94 of the Decision) and the telex from
Mr Peters of 4 March 1984 concerning the
meeting of 28 February 1984 (..., point 96 of
the Decision)'. 101
268. The Court of First Instance thus refers
to specific passages of the Decision relating to
the appellant's conduct which are capable of
justifying a harsher penalty. In these par­
ticular observations, the Commission shows
that BStG was the driving force in commit­
ting the infringements and also that
Mr Müller used his triple capacity. The neces­
sary supplement to the passages in question is
100 — Paragraph 146 of the judgment. 101 — Paragraph 149 of the judgment.
I - 8475
OPINION OF MR LÉGER — CASE C-185/95 P
provided by point 207 of the Decision, in
which the Commission states that the heaviest
fines should be imposed on the undertakings
whose executives held senior positions in the
associations of undertakings such as the Fach­
verband Betonstahlmatten.
269. It should be observed that the appellant
does not mention these passages when it cites
only point 197 et seq. in asserting that the
Decision does not state sufficient reasons.
270. Fourthly, the Court of First Instance
examined BStG's complaints concerning miti­
gating circumstances. It did in fact observe
that 'in its written reply to the questions put
to it by the Court, the Commission indicated
that there had been no mitigating circum­
stances in the applicant's individual case'. 102
271. I must add that the Commission set out
the reasons why it took account of the char­
acteristics and the economic importance of
the industry concerned in fixing the fines. 103
As the different infringements took place in
this common context, the effects of which
were not limited to certain undertakings, it
was not necessary for the Commission to
carry out an individual assessment.
272. It follows that the complaint that the
Court of First Instance incorrectly assessed
the statement of reasons in the Decision con­
cerning the circumstances of the infringe­
ments must be rejected.
2. The allegation that BStG took part in the
structural crisis cartel
273. BStG asserts that the grounds of the
judgment are contradictory. Whereas the
Court of First Instance states in paragraphs
55 et seq. and 140 that the cartel did not, as
such, form part of the infringements con­
firmed in the Commission's Decision, the
Court states in paragraph 148 that the appel­
lant used the cartel to protect the German
market. Moreover, according to BStG, the
Commission itself admits, in its written obser­
vations in the Boël v Commission 104 case
before the Court of First Instance, that the
existence of the cartel amounted to an infringe­
ment for which BStG was responsible.
102 — Paragraph 147, emphasis added.
103 — Point 199 et seq. of the Decision. 104 — Judgment in Case T-142/89 [1995] ECR II-867.
I - 8476
BAUSTAHLGEWEBE v COMMISSION
274. BStG adds that the principle of legiti­
mate expectations was disregarded by the
negative assessment of the structural crisis
cartel because, by tolerating its existence, the
Commission created a situation of expecta­
tion on which the appellant was legitimately
entitled to rely.
275. The Commission considers that the
Court of First Instance justified the choice
made in the Decision not to find that the
existence of the cartel was a mitigating cir­
cumstance in relation to BStG.
276. With this complaint the appellant is
attempting to demonstrate that the Commis­
sion and the Court of First Instance found in
reality that it was illegal for BStG to partici­
pate in the cartel, although the Commission
was aware of its existence and, furthermore,
had tolerated it.
277. In paragraphs 55 and 140 of its judg­
ment the Court of First Instance stated that
the cartel did not, as such, form part of the
infringements found by the Decision. It stated
the same in observing, in paragraph 148, that
the appellant 'used the cartel to protect the
German market against competition from pro­
ducers in other Member States by means of
measures incompatible with Community law'.
It is quite clear from these findings that in
both cases BStG is not being criticised for
forming or participating in the cartel, but for
using it as an instrument for anti-competitive
practices.
278. This point is confirmed by the fact that,
according to the Commission Decision, the
object of the cartel was strictly limited to the
German market because it provided for a
reduction in the production capacities of
German producers, for price regulation and
delivery quotas in the German market. 105
However, the alleged infringements by BStG
consist in acts seeking to restrict exports of
welded steel mesh from Germany to other
Member States and to fix prices in markets
other than the German market. With regard
to the agreements designed to set quotas for
exports from the other Member States to
Germany and to ensure adherence to the
prices prevailing on the German market, BStG
has not shown that the Commission consid­
ered them to be elements of the cartel agree­
ment,
279. The Court of First Instance also noted,
inter alia, that:
— the first paragraph of point 126 of the
Decision stated that 'the agreements con­
cerning the German market should be
seen against the background of the estab­
lishment and operation of the structural
crisis cartel';
105 — Point 126 et seq. of the Decision.
I - 8477
OPINION OF MR LÉGER — CASE C-185/95 P
— point 175 of the Decision stated that cer­
tain clauses of the cartel agreement 'had,
moreover, as their object, or at least as
their effect, the use of the structural crisis
cartel as an instrument for reaching bilat­
eral arrangements between German pro­
ducers on the one hand and producers
from other Member States on the oth­
er'. 106
280. No contradiction can therefore be found
in the Commission's reasoning or in the rea­
sons given by the Court of First instance for
adopting it as its own.
281. The Commission's acknowledgment,
noted by BStG in another case, in point 174
of the Decision, that it found the appellant
'responsible' for the cartel is not sufficient to
contradict all the other findings of the Deci­
sion reproduced in part in the preceding para­
graphs, which affirm the contrary, particu­
larly as, although the passage in question
describes the anti-competitive effects of the
cartel, which the Commission has never
denied, it does not express the idea that it
constitutes one of the confirmed infringe­
ments. 107
282. Under these circumstances, I consider
that the appellant cannot claim that the cartel
was taken into account as an element consti­
tuting the infringements with which it was
charged.
283. Consequently, the argument that the
Commission tolerated the cartel (and if such
tolerance were found, it would reduce BStG's
responsibility to that extent) ceases to be rel­
evant. As the cartel was not found unlawful
as such, it cannot be said that the Commis­
sion went back on its toleration of the cartel,
and therefore it cannot be claimed that the
Commission disregarded the principle of legit­
imate expectations.
3. BStG's lack of awareness that the struc­
tural crisis cartel and the conduct aiming to
protect it were illegal
284. BStG complains that the Court of First
Instance did not examine its argument that it
was unaware that the cartel was illegal and
that it found that the offences had been com­
mitted 'intentionally' within the meaning of
Article 15 of Regulation No 17. The appel­
lant maintains that it was also unaware that
conduct intended to protect the cartel, that is
to say, of the kind which is the subject of this
case, was illegal.
106 — Paragraph 55 of the judgment.
107 — In point 174 of the Decision, the Commission states that
the cartel arrangement not only restricted competition
between the cartel members in the German market, but
also distorted competition in trade within the Community.
The Commission adds that the arrangement was liable to
affect trade between Member States.
I - 8478
BAUSTAHLGEWEBE v COMMISSION
285. The Commission replies that these argu­
ments of BStG are inadmissible because they
are being put forward for the first time at the
appeal stage.
286. Clearly, the last argument was not put
before the Court of First Instance, and for
that reason, must be declared inadmissible.
287. The first complaint is admissible. The
judgment states that, before the Court of First
Instance, the appellant claimed that it consid­
ered the cartel lawful and was thus unaware
that it was legally defective.108
288. The first complaint must, however, be
declared unfounded in so far as the Court of
First Instance, as we have already seen, previ­
ously dismissed on adequate legal grounds,
the plea that the German structural crisis
cartel had been taken into account as consti­
tuting an integral part of the infringement
confirmed by the Decision. As this aspect
was no longer necessary for evaluating the
facts, the question whether BStG was aware
that the cartel was legal was not relevant in
determining whether the offences which it
was alleged to have committed were com­
mitted 'intentionally'.
4. Disproportionate fine
289. Finally, the appellant contends that,
although the Court of First Instance reduced
the fine by one third, it is still dispropor­
tionate because the Court failed to take various
mitigating circumstances or principles into
account. In support of its claim for a reduc­
tion in the fine, the appellant relies on:
— the principle that the penalty should be
proportionate to the offence, which was
disregarded when the fine was fixed at
almost one third of the appellant's share
capital, thereby considerably restricting its
freedom of financial action;
— the national authorities' toleration of the
structural crisis cartel;
— the principle that the fine should take
account only of the turnover relating to
the agreements in question and not the
total turnover;
— the excessive duration of the administra­
tive procedure and the proceedings before
the Court of First Instance, which should
be accepted as a mitigating circumstance;108 — Paragraph 142 of the judgment.
I - 8479
OPINION OF MR LÉGER — CASE C-185/95 P
— the error in fixing the fine by reference to
BStG's market share;
— the principle of equality, whereby the fine
imposed on it should not be abnormally
high in comparison with the other fines
imposed as a result of the Commission's
Decision.
290. These complaints challenge the interpre­
tation and application of Article 15(2) of
Regulation No 17 by the Commission and
the Court of First Instance.
291. Article 15(1), which lays down the con­
ditions which must be met before the Com­
mission may impose fines, states that the
offences or acts in question must be inten­
tional or negligent. Article 15(2) lays down
the rules for determining the amount of the
fine, which depends on the gravity and dura­
tion of the infringement.
292. The Court of Justice has held that 'the
gravity of infringements has to be determined
by reference to numerous factors, such as the
particular circumstances of the case, its con­
text and the dissuasive effect of fines; more­
over, no binding or exhaustive list of the cri­
teria which must be applied has been drawn
up'. 109
293. In the Court's view there are accord­
ingly no criteria which must always be taken
into account or which cannot be taken into
account to measure the gravity of an offence.
The Court thus appears to consider that it is
for the Commission to determine in each case
the factors for assessing the gravity of the
offence, provided, of course, that the reasons
why it considers the chosen criteria appro­
priate are adequately stated.
294. Most of BStG's arguments therefore
relate to the discretion of the Court of First
Instance and may be reviewed by the Court
of Justice only if there is a mistake in law,
such as taking account of circumstances which
are manifestly inappropriate for determining
the gravity of an infringement. 110
109 — See Fernere Nord v Commission, cited above, paragraph 33,
Musique Diffusion Française and Others v Commission,
cited above, paragraph 120, and the order in Case C-137/95
P SPO and Others v Commission [1996] ECR I-1611, para­
graph 54.
110 — See the Opinion of Advocate General Cosmas in Case
C-51/92 P Hercules Chemicals v Commission, not yet pub­
lished, point 29, which is in favour of stricter control by
the Court of Justice of the criteria for assessing the gravity
of a particular line of conduct.
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BAUSTAHLGEWEBE v COMMISSION
295. Let me examine the appellant's com­
plaints in the light of these legal principles
and case-law.
(a) Excessive length of the proceedings
296. As the complaint that the Commission
did not take account of the excessive length
of the administrative procedure when fixing
the fine was not discussed before the Court
of First Instance, it must be ruled inadmis­
sible. For the reasons already stated, 111this
point cannot be raised for the first time before
the Court of Justice.
297. So far as the duration of the judicial pro­
ceedings is concerned, I would merely refer
the Court to what I said earlier with regard
to the plea alleging failure to comply with the
'reasonable time' requirement. I suggested
that the duration of the proceedings could
not have a mitigating effect of any kind on
the penalty because there is no connection
between the conduct which constitutes the
offence and the time taken for judgment to be
delivered. The degree of gravity of the acts in
question is the same whether viewed before
or after the proceedings, with the result that
it cannot be mitigated on any grounds relating
to the course of the judicial stage. 112
298. Before expressing an opinion on BStG's
other complaints, I must point out that some
of them show that the appellant is merely
repeating the arguments which it set out before
the Court of First Instance and has not pro­
duced anything to show that that Court's
assessment was mistaken in law.113
(b) Fine disproportionate by reference to
share capital
299. The appellant repeats, in relation to the
Court of First Instance, the argument which
it set out before that Court against the Com­
mission. 114
300. The Court observed that 'the fact of
having limited capital is the result of an eco­
nomic decision taken by the [appellant] and
cannot influence the amount of the fine, which
is based on turnover'. 115Consequently, the
Court of First Instance did examine the rea­
sons why the relationship between the appel-
111 — See point 193 above.
112 — See, in particular, point 56 ct scq. above.
113 — See point 198 et seq. above.
114 — See paragraphs 153 and 154 of the judgment concerning
breach or the principle of proportionality.
115 — See paragraph 159 of the judgment.
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OPINION OF MR LÉGER — CASE C-185/95 P
lant's capital and the amount of the fine had
no bearing on the latter. The appellant has
not adduced any argument in law which
would cast doubt on the Court of First
Instance's assessment and the complaint must
be declared inadmissible.
(c) Failure to treat the structural crisis cartel
as a mitigating circumstance
301. This argument was also raised by BStG
before the Court of First Instance, which
expressly refuted it in finding that 'the Com­
mission was right not to treat the existence of
the structural crisis cartel as a general miti­
gating circumstance in the [appellant's] case,
except as indicated by the Court in paragraph
122. It should be noted, first, that the [appel­
lant] did not avail itself of the possibility pro­
vided by Article 85(3) of the Treaty of noti­
fying the cartel agreement to the Commission
in order to obtain from it a declaration that
Article 85(1) did not apply and, secondly, that
the [appellant] used the cartel to protect the
German market against competition from pro­
ducers in other Member States by means of
measures incompatible with Community
law'. 116 As the appellant does not adduce any
legal argument capable of placing in question
the Court's reasoning, its ground of com­
plaint must be declared inadmissible.
(d) Breach of the principle of equality
302. The complaint that the principle of
equality has not been observed because of the
unusually heavy fine imposed on BStG by
comparison with the other fines must also be
dismissed.
303. The Court of First Instance examined
this point before dismissing it, observing with
regard to the fine of 3.15% of turnover that
'no mitigating circumstances exist in respect
of the [appellant], save as stated in paragraph
122 above, and that, conversely, there was an
aggravating circumstance — as in the case of
Tréfilunion, to which was applied the higher
percentage of 3.60% — which ... reflects the
number and extent of the infringements found
against the [appellant]'. 117
304. The inescapable conclusion is that BStG
has not shown any breach of the relevant law
in the reasoning of the judgment and that the
116 — Paragraph 148. 117 — Paragraph 160.
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BAUSTAHLGEWEBE v COMMISSION
appellant is merely repeating its argument
before the Court of First Instance.
(e) No justification for taking account of the
market-share criterion in fixing the fine
305. BStG challenges the use of this criterion
on the ground that a firm's financial resources
are not proportionate to its market position.
This complaint refers to a ground of the
judgment in which the Court of First Instance
rejected a plea for mitigation on the basis that
the appellant did not belong to a large indus­
trial entity. It appears that the criterion in
question originates in the judgment itself and
therefore was not discussed as such before
the Court of First Instance. However, as I
have already pointed out, 118the choice of
criteria for assessing the gravity of infringe­
ments is within that Court's discretion.
306. Moreover, no mistake of law is alleged
in support of this complaint and it must
therefore be declared inadmissible.
(f) No justification for taking account of total
turnover
307. BStG complains that the Commission
and the Court of First Instance calculated the
fine imposed on it on the basis of its total
turnover and not by reference to the turnover
resulting from the agreements.
308. The Court of First Instance observed
that, pursuant to Article 15(2) of Regulation
No 17, the Commission could 'impose fines
of between ECU 1 000 and ECU 1 000 000,
and the latter figure may be increased up to a
ceiling of 10% of the turnover', before finding
that the Commission, 'which took account not
of the total turnover achieved by the [appel­
lant], but only of the turnover in welded steel
mesh in the Community of six Member States
and did not exceed the 10% ceiling, did not
therefore, having regard to the gravity and
duration of the infringement, infringe Article
15 of Regulation No 17'. 119
309. In exercising its power to make factual
findings, the Court of First Instance therefore
first observed that the turnover for welded
steel mesh alone had served as the basis for
calculating the fine. It then applied correctly
the abovementioned provision by pointing
118 — See points 293 and 294 above. 119 — Paragraph 158 of the judgment, emphasis added.
I - 8483
OPINION OF MR LÉGER — CASE C-185/95 P
out that it prescribed two potential limits, by
referring, on the one hand, to an absolute
amount and, on the other, to a maximum of
10% of total turnover, before finding that the
Commission had complied with the relevant
law by referring to a lower turnover which in
any case did not exceed the authorised per­
centage.
310. It should be added that it does not
follow at all from Article 15(2) that the turn­
over to which it refers means only the turn­
over connected with the offence in question.
311. BStG's complaint must be considered
unfounded.
The seventh plea must for that reason be dis­
missed.
H — Alternative daim for reduction of the
fine to a reasonable amount
312. I need only say that the Court of Justice
has consistently held that 'it is not for this
Court, when ruling on questions of law in
the context of an appeal, to substitute, on
grounds of fairness, its own assessment for
that of the Court of First Instance exercising
its unlimited jurisdiction to rule on the amount
of fines imposed on undertakings for infringe­
ments of Community law'. 120 The applica­
tion must for that reason be declared inad­
missible.
Conclusion
313. 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 pursuant to Article 69(2) of the Rules of
Procedure.
120 — For a recent judgment, see Ferriere Nord v Commission,
cited above, paragraph 31.
I - 8484