61999CC0198_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I ─ Introduction
1.
The present case is an appeal brought against the judgment delivered by the Court of First Instance on 11 March 1999 in Case T-157/94 ( "the judgment under appeal"
). (2)
2.
Reference is made to the judgment under appeal for the historical background to relations between the steel industry and the Commission from 1970 to 1990, and in particular the rules adopted to deal with the manifest crisis and Commission Decision No 2448/88/ECSC of 19 July 1988 introducing a surveillance system for certain products of undertakings in the steel industry ( "Decision No 2448/88"
). (3) The surveillance system established pursuant to the said Decision expired on 30 June 1990 and was replaced by an individual and voluntary information scheme. (4)
3.
On 16 February 1994 the Commission adopted against 17 European steel undertakings and one of their trade associations
"Commission Decision 94/215/ECSC ... relating to a proceeding pursuant to Article 65 of the ECSC Treaty concerning agreements and concerted practices engaged in by European producers of beams" (5) (hereinafter
"the Decision"
). The parties to which the Decision was addressed had, in the Commission's view, breached the competition law of the European Coal and Steel Community by establishing, in an anti-competitive manner, systems for the exchange of information and engaging in price-fixing and market-sharing. The Commission imposed fines on 14 of the undertakings. In the case of Empresa Nacional Siderúrgica SA (Ensidesa) (hereinafter
"the appellant"
) the Commission imposed a fine of ECU 4 000 000.
4.
Several of the undertakings concerned, including the appellant, together with the trade association, challenged the Decision before the Court of First Instance. The Court of First Instance ultimately reduced the fine to EUR 3 350 000 and dismissed the remainder of the action.
5.
On 26 May 1999 the appellant lodged with the Court Registry an appeal against that judgment.
II ─ Forms of order sought and grounds of appeal
6.
In its appeal, the appellant claims that the Court should:
(1)
set aside the judgment delivered by the Court of First Instance in Case T-157/94 in so far as that judgment fixes the fine imposed on the appellant at EUR 3 350 000, dismisses the remainder of the appellant's action and orders the appellant to bear its own costs and to pay three-quarters of the Commission's costs;
(i)
alternatively, set aside in part the judgment delivered by the Court of First Instance for the reasons given in this pleading and reduce the fine imposed on it;
(2)
order the Commission, in both instances, to pay the costs of the proceedings at first instance and those of the present appeal.
The Commission contends that the Court should:
(1)
dismiss the appeal;
(2)
order the appellant to pay the costs of the proceedings.
7.
According to its statement of appeal, the appellant invokes the following
grounds of appeal
First
ground of appeal:
"Breach of Community law in erring in law in its appraisal of the infringement of essential formal provisions committed when the Commission Decision was adopted."
Second
ground of appeal:
"Breach of Community law in erring in law in its appraisal of the appellant's practices the subject of complaint in relation to Article 65(1) of the ECSC Treaty."
Third
ground of appeal:
"Breach of Community law because the Court of First Instance did not annul Article 1 of the Decision on the grounds that it did not specify the duration of the infringement involving price-fixing."
Fourth
ground of appeal:
"Breach of Community law in erring in law in its appraisal of the arrangement to share the French market."
Fifth
ground of appeal:
"Breach of Community law as a result of the Court of First Instance exceeding its powers of review and infringing Ensidesa's rights of defence."
Sixth
ground of appeal:
"Breach of Community law in upholding the validity of converting turnover into ecus and in upholding the validity of taking into account the turnover for the final year of the infringement."
Summary of the grounds of appeal and their component parts according to the essential issues of law involved
8.
The submissions relating to the individual grounds of appeal and their component parts indicate that the appellant is alleging several breaches of the ECSC Treaty. Summarised according to the issues of law raised, the appellant is in essence arguing that the Court of First Instance was in breach of
Community law
in the judgment under appeal in that it:
─
erred in law in assuming that the Decision was
formally valid
, even though the Decision had not been adopted in the proper manner (first
ground of appeal);
─
exceeded its jurisdiction to carry out a review under the first paragraph of Article 33(1) of the ECSC Treaty (fifth
ground of appeal);
─
erred in law in assuming that the Decision was
substantially valid
, even though
─
the practices complained of in the Decision could not have had a detrimental effect on
"normal competition"
within the meaning of Article 65 of the ECSC Treaty (second
ground of appeal);
─
the Decision did not contain adequate substantiation in relation to the duration of the agreements to fix prices (third
ground of appeal);
─
the sharing of the French market was based on an error in law (fourth
ground of appeal);
─
erred in law in its assessment of the
fine
(sixth
ground of appeal).
9.
The examination which follows will base itself around this summary. The grounds of appeal put forward by the appellant, their component parts and arguments and the Commission's contentions will be set out under these individual points.
10.
The grounds of appeal in the present proceedings correspond, in part, to the substance of the grounds of appeal or parts of the grounds of appeal put forward in Case C-194/99 P
Thyssen Stahl
v
Commission
. (6) My Opinion in that case is also being delivered today. Where the content of the submission is the same I will refer in this Opinion to the appraisal that I have undertaken in my Opinion on Case C-94/99 P.
III ─ Examination of the case
A ─
The ground of appeal alleging a legally defective assessment of the formal validity of the Decision (first ground of appeal)
11.
The
first
ground of appeal consists of three parts. In the first, the appellant challenges the assumption made by Court of First Instance that, at the time of adoption of the Decision by the Commission, the necessary quorum was present. In this second and third parts the appellant takes issue with the alleged failure by the Court of First Instance to hold that there was an infringement of the formal provisions governing the authentication of the Decision and with the alleged lack of correspondence between the versions of the Decision as notified and as adopted.
1. The quorum when the Decision was adopted by the Commission
Submissions of the parties
12.
In the first part of the first ground of appeal the appellant submits that the Court of First Instance misconstrued the minutes of the session of the College of Members of the Commission on 16 February 1994 at which the Decision was adopted. The Court of First Instance had assumed that the Decision had been adopted by the requisite number of Commission Members on the basis of a patently unsound interpretation of the minutes in question, without appraising all of the evidence tendered by the appellant.
13.
The judgment under appeal states that page 2 of the minutes of the aforementioned session of the Commission on 16 February 1994
"shows"
that nine Members were present during the Commission's deliberations whereas, according to page 40 of the minutes of that session, two Cabinet heads and one Cabinet member attended the session
"in the absence of the Commission Members"
, which indicates that three Commissioners were not present when the Decision was adopted in the afternoon.
14.
The Court of Justice had also refused to allow the appellant's application for evidence to be examined in the form of the diaries of the Commission Members in order to establish which Members actually attended the session when the Decision was adopted. In doing so, the Court of First Instance had infringed the appellant's right under Article 24 of the ECSC Statute of the Court of Justice that it should be convinced of the validity of the procedure followed when the Decision was adopted. The Court has expressly ruled on such a right. (7)
15.
Under Article 24 of the ECSC Statute of the Court of Justice, therefore, the Court should require the Commission to produce the Commission Members' diaries and other relevant documentation.
16.
The
Commission
takes the view, firstly, that this ground of appeal is inadmissible as it is for the Court of First Instance alone to appraise the facts and the value to be put on the evidence submitted to it.
17.
The Commission also considers the application for production of the diaries to be inadmissible as this is not a measure that can be the subject of an application in appeal proceedings. Article 118 of the Rules of Procedure of the Court of Justice, which specifically applies to appeals, refers to Article 43 et seq. and Articles 55 to 90, 93, 95 to 100 and 102 of those Rules but clearly omits Articles 45 to 54, which come under the chapter on measures of inquiry.
18.
Even if the Court of Justice should find the ground of appeal admissible, the Commission takes the view that it is unfounded. The Court of First Instance properly took into account the list on page 2 of the minutes of the session, the purpose of which was to record precisely which Commission Members were present at or absent from the session in question. It argues that the appellant is also misconstruing page 40 of the minutes. As stated by the Court of First Instance, it does not follow from the details given there that the three Commission members in question were absent when point XXV was discussed.
Appraisal
19.
Since the arguments put forward essentially correspond to those presented by the appellant
Thyssen Stahl
in Case C-194/99 P, I refer, in relation to the grounds on which the first part of the first ground of appeal should be dismissed as inadmissible, to paragraph 52 et seq. of the Opinion that I am delivering today in the aforementioned case. Those grounds apply
mutatis mutandis
.
20.
The first part of the
first
ground of appeal, challenging the assumption by the Court of First Instance that there was the necessary quorum when the Commission adopted the Decision, must therefore be dismissed on the ground that it is
inadmissible
. (8)
2. The question of the substantive correspondence between the versions of the Decision as notified and as adopted
Submissions of the parties
21.
In the second part of the first ground of appeal the
appellant
takes issue with paragraph 135 of the judgment under appeal by arguing that, in its view, the Court of First Instance erred in finding that the notified and adopted versions did correspond.
22.
It considers that, in taking the view that the notified version of the Decision need not necessarily correspond to the adopted version, the Court of First Instance wrongly applied the case-law (9) cited by the Court of First Instance itself, according to which a lack of formal correspondence between the version of the Decision as adopted and the version notified to the parties must result in its annulment.
23.
The
Commission
considers this ground of appeal to be inadmissible because, in stating that there was no substantive difference between the various versions of the Decision, the Court of First Instance was just establishing an issue of fact.
24.
Furthermore, the Commission continues, the ground of appeal does not have any legal foundation and is based on a misunderstanding of paragraph 135 of the judgment under appeal. The Court of First Instance did not state that the Commission can notify a text to the parties that does not correspond to the text adopted, but that considerations such as non-consecutive pagination or different typeface did not adversely affect the formal and intellectual elements of such documentation.
Appraisal
25.
Paragraph 135 of the judgment under appeal with which the appellant takes issue relates to the alleged discrepancy between the version of the Decision before the Commission at the time of adoption and the version notified to the appellant.
26.
The purely substantive correspondence between the version of the Decision notified to the appellant and the version before the Commission at the time of adoption is a determination of fact and not a question of law.
27.
The second part of the
first
ground of appeal, claiming that it was wrongly found that there was no discrepancy between the versions of the Decision as adopted and as notified, must therefore be dismissed as
inadmissible
.
3. The question of the proper adoption of the Decision by the Commission
Submissions of the parties
28.
In the third part of the first ground of appeal the
appellant
takes issue with paragraphs 143 to 147 of the judgment under appeal relating to compliance with Article 16(1) of the Rules of Procedure of the Commission of 17 February 1993 (10) then applicable. It argues that, in deeming the procedure followed by the Commission satisfactory, the Court of First Instance misconstrued the significance attributable to Article 16(1) of the Rules of Procedure of the Commission according to which adopted Decisions are to be attached to the minutes of the meeting at which they are adopted.
29.
Furthermore, the appellant continues, in paragraph 147 of the judgment under appeal the Court of First Instance erred in its appraisal of the evidence as to whether the President and Secretary-General of the Commission authenticated the wording of the Decision as notified to the parties.
30.
The
Commission
considers this dual argument to be inadmissible because the appellant is objecting to a finding of fact or appraisal of evidence, both of which are matters which come within the sole purview of the Court of First Instance.
31.
Nor is the ground of appeal substantiated. Paragraphs 145 and 146 of the judgment under appeal should also be taken into account; the appellant has not tendered any proof that there was a substantive difference between the versions of the Decision.
32.
The Commission indicates in relation to paragraph 147 of the judgment under appeal that Article 16(1) of the Rules of Procedure of the Commission does not provide for authentication of the Decision notified to the parties, but just authentication of the version referred to in the minutes of the meeting.
Appraisal
33.
Since the arguments put forward essentially correspond to those presented by the appellant
Thyssen Stahl
in Case C-194/99 P, I refer, in relation to the grounds on which the third part of the first ground of appeal should be dismissed as inadmissible, to paragraph 66 et seq. of the Opinion that I am delivering today in the aforementioned case. Those grounds apply
mutatis mutandis
.
34.
The third part of the first ground of appeal, which challenges the alleged failure to take account of the improper authentication of the Commission's Decision, must therefore be dismissed as being
inadmissible
.
B ─
The ground of appeal alleging that the Court of First Instance exceeded its jurisdiction (fifth ground of appeal)
Submissions of the parties
35.
The
appellant
takes issue with paragraph 332 et seq. of the judgment under appeal in which the Court of First Instance considered the separateness under competition law of the information exchange system within the Poutrelles Committee.
36.
The appellant relies on the fact that, in its reply to a written question put by the Court of First Instance, the Commission stated that the information exchange system the subject of the complaint against the undertakings did not constitute a separate breach of Article 65(1) of the ECSC Treaty, but formed part of wider infringements. In the oral procedure the Commission had also specifically stated that it took the view that the Court's
"tractor" (11) case-law did not apply to the information exchange system the subject of these proceedings.
37.
In paragraph 339 of the judgment under appeal the Court of First Instance nevertheless came to the conclusion that the information exchange system had been considered in the Decision to be a separate infringement and that therefore the arguments put forward by the Commission in its reply of 19 January 1998 and during the oral procedure should be rejected in so far as the aim was to change that finding of law.
38.
The appellant considers that the wording of the Commission's Decision has been altered in the judgment under appeal and its substance therefore changed as a result of the Decision being ascribed an inference that it did not contain. By proceeding in this manner the Court of First Instance failed in its duty to check the validity of a legal measure to which penalties were attached, contrary to its own ruling in the judgment on the flat-glass decision. (12) It should have annulled the fine that had been wrongly imposed for a separate infringement that, by the Commission's own admission, had not taken place.
39.
The
Commission
considers this ground of appeal to be inadmissible because it is made for the first time before the Court and differs from the grounds claimed at first instance.
40.
The Commission also claims that the ground of appeal is unfounded. The Court of First Instance did not alter the wording or change the content of the Decision in any way; it simply rejected the statements made by the Commission in writing and during the oral procedure.
Appraisal
41.
Since the arguments put forward essentially correspond to those presented by the appellant
Thyssen Stahl
in Case C-194/99 P, I refer, in relation to the grounds on which the fifth ground of appeal should be dismissed as unfounded, to paragraph 89 et seq. of the Opinion that I am delivering today in the aforementioned case. Those grounds apply mutatis mutandis.
42.
The fifth ground of appeal, alleging that the Court of First Instance exceeded its jurisdiction under Article 33(1) of the ECSC Treaty, must therefore be dismissed as being unfounded.
C ─
The grounds of appeal alleging that the assessment of the substantive legality of the Decision was defective in law
1. Interpretation of the term
"concerted practices"
and
"normal competition"
under Article 65 of the ECSC Treaty (second
ground of appeal)
Submissions of the parties
43.
The
appellant
takes issue with paragraph 215 et seq. of the judgment under appeal, arguing that the Court of First Instance construed the terms
"agreement"
and
"concerted practices"
in Article 65 of the ECSC Treaty in connection with price-fixing agreements in the same way as the corresponding terms in Article 85 of the EC Treaty without taking into consideration that the facts that were the subject of the Decision should have been appraised in accordance with Article 46 et seq. and Articles 60 and 65 of the ECSC Treaty.
44.
"Normal competition"
under the ECSC Treaty, the appellant continues, does not correspond to that competition protected under the EC Treaty; it is imperfect competition on an oligopolistic market.
45.
Article 60 of the ECSC Treaty introduces an element of coordination between undertakings in giving rise to virtually automatic adaptation to published prices. The Court of First Instance therefore erred in appraising the appellant's practices under Article 65(1) of the ECSC Treaty without taking Article 60 into consideration.
46.
In paragraph 230 of the judgment under appeal the Court of First Instance also erred in assuming that the Commission was not obliged to demonstrate what adverse effect on competition had resulted from the practices of which the appellant was accused. This is despite the fact that, in paragraph 222 of the Decision, the Commission itself had stated that the practices had had a far from negligible effect upon competition.
47.
The grounds of the judgment under appeal are also inconsistent because it is stated in paragraph 517 that
"the Commission ... overestimated the economic effects of the established agreements on price-fixing in relation to competition, as would have prevailed ... in the absence of such infringements in view of the more favourable economy and the latitude afforded to the undertakings for general discussions on price forecasts with other undertakings and DG III."
48.
The appellant also takes issue with paragraph 404 et seq. of the judgment under appeal. In paragraph 416 of the judgment under appeal the Court of First Instance, after examining various items of evidence, came to the conclusion that the officials at DG III
"[could] not establish that ... the information on prices was based on agreements between the undertakings"
.
49.
The appellant perceives the reasoning of the Court of First Instance as patent distortion of the documentary evidence and testimony of witnesses regarding DG III's knowledge of the exchange of information on prices. That reasoning enabled the Court of First Instance to reject the proof submitted and come to the conclusion that the undertakings had not proven that DG III was involved or, at least, had not established what precise knowledge the Commission had had of the content of the meetings.
50.
The
Commission
takes the view, first of all, that this ground of appeal merely repeats the arguments put forward in the Court of First Instance; it must therefore be inadmissible.
51.
Even if the ground of appeal were admissible, however, it should be dismissed as unfounded because the Court of First Instance did not err in its reasoning in paragraph 238 et seq. and paragraph 245 et seq. The appellant's conduct the subject of complaint in relation to price-fixing and market-sharing, in particular, does constitute
"agreements"
and
"concerted practices"
within the meaning of Article 65 of the ECSC Treaty. Such conduct is not mentioned in Article 60 of the ECSC Treaty and, if it were to be considered lawful, would deprive Article 65 of the ECSC Treaty of any effect.
52.
As regards the effect on competition, the Commission considers that, as Article 65 of the ECSC Treaty prohibits agreements and practices
"tending ... to prevent, restrict or distort normal competition ..."
, the Court of First Instance correctly found that it was not necessary to demonstrate that the cartel the subject of the complaint had had adverse effects on competition.
53.
The ground of appeal is also inadmissible in any event in so far as it takes issue with the question of DG III's knowledge of conduct the subject of a later complaint. This is, in fact, purely a criticism of the appraisal of evidence and not an argument for distortion of evidence. The appellant does not specify the alleged distortion of evidence although it is for the appellant to show where and how the Court of First Instance wrongly appraised the evidence.
Appraisal
54.
According to the appellant's arguments in relation to the interpretation by the Court of First Instance of the terms
"agreements ... and ... concerted practices"
and
"normal competition"
contained in Article 65(1) of the ECSC Treaty, the
second
ground of appeal consists of two parts made up of the following complaints:
─
The Court of First Instance failed to take any, or any proper, account of the lawful disruptions which form part of
"normal competition"
.
─
The Court of First Instance failed to take cognisance of the fact that
"agreements"
and
"concerted practices"
could only be in breach of competition law under the ECSC Treaty if market effects are proven; however, it did not examine this point.
55.
It is to be inferred from the first part of the
second
ground of appeal that the appellant clearly classes the oligopolistic structure of the ECSC markets taken for granted in the ECSC Treaty, the publication of price lists under Article 60 the ECSC Treaty and the knowledge and conduct of DG III, based on Article 47 of the ECSC Treaty, as lawful disruptions supposedly covered by the term
"normal competition"
.
56.
Since the arguments put forward essentially correspond to those presented by the appellant
Thyssen Stahl
in Case C-194/99 P, I refer, in relation to the grounds on which the first part of the
second
ground of appeal should be dismissed as unfounded, to paragraph 135 et seq. of the Opinion that I am delivering today in the aforementioned case. Those grounds apply
mutatis mutandis
.
57.
In the second part of the
second
ground of appeal the appellant claims that
"agreements"
and
"concerted practices"
in Article 65(1) of the ECSC Treaty ─ unlike the parallel terms ( "agreements"
and
"concerted practices"
) in Article 85 of the EC Treaty (now Article 81 EC) ─ still require the existence of evidence of adverse effects on the market even where the objective of the agreements and concerted practices the subject of complaint was to influence the market in an anti-competitive manner.
58.
The appellant essentially bases its argument on its interpretation of the scope of lawful disruptions allegedly covered by the term
"normal competition"
, which ─ as already stated ─ must be rejected for reasons of principle. Since the reasoning contained in paragraph 230 of the judgment under appeal also complies with established case-law of the European Court of Justice on Article 85 of the EC Treaty (now Article 81 EC) (13) and since there is no apparent reason why it should not also apply to Article 65(1) of the ECSC Treaty, this argument by the appellant must also be dismissed as unfounded in this respect.
59.
Finally, as far as the alleged objection to paragraph 517 of the judgment under appeal is concerned, the appellant is here comparing the reasoning in the judgment under appeal on the factual aspect of the practices the subject of complaint under Article 65(1) of the ECSC Treaty with the grounds on which the Court of First Instance reduced the amount of the fine under Article 65(5) of the ECSC Treaty within the scope of its unlimited power of review.
60.
Since the arguments put forward essentially correspond to those presented by the appellant
Thyssen Stahl
AG in Case C-194/99 P, I refer, in relation to the grounds on which the
second
part of the second ground of appeal should be dismissed as unfounded, to paragraph 158 et seq. of the Opinion that I am delivering today in the aforementioned case. Those grounds apply
mutatis mutandis
.
61.
The
second
ground of appeal, alleging a legally defective assessment of Article 65(1) of the ECSC Treaty with regard to the terms
"normal competition"
and
"agreements ... and ... concerted practices"
, must therefore be dismissed in its entirety as
unfounded
.
2.
The alleged defective reasoning in the judgment under appeal in relation to the duration of the price-fixing agreements (third
ground of appeal)
Submissions of the parties
62.
The
appellant
takes issue here with paragraph 259 of the judgment under appeal.
63.
It argues that, in paragraph 259 of the judgment, the Court of First Instance stated that paragraphs 227 to 237 of the Decision did not contain sufficient evidence of the whole duration of the infringement consisting of price-fixing. The Court of First Instance nevertheless relied on paragraph 118 et seq. of the Decision and stated in paragraph 263 of the judgment under appeal that the Commission's finding in paragraph 221 of the Decision, that the agreements and concerted practices were to be considered continuing collusion, could not be criticised.
64.
According to the case-law of the Court of First Instance, however, the Commission is obliged to prove the individual existence and duration of every single infringement in its decisions. (14)
65.
The
Commission
considers that, by alluding only to paragraph 259 of the judgment under appeal, the appellant is manipulating the wording of the judgment.
66.
The Commission contends that the ground of appeal is also unfounded. Although the Court of First Instance did state in paragraph 259 of the judgment under appeal that paragraphs 227 to 237 of the Decision did not enable the duration of the infringements to be established, its conclusion was based on other points in the Decision and documentation referred to ─ that is to say, on paragraph 118 et seq. of the Decision that was taken into account in paragraph 260 et seq. of the judgment under appeal.
Appraisal
67.
It is apparent that, in its appeal against paragraph 259, the appellant fails to take cognisance of the fact that the paragraphs of the Decision referred to as grounds in paragraph 260 et seq. of the judgment under appeal come to the same conclusion.
68.
It should not be inferred from the case-law of the Court of First Instance on which the appellant relies that there is a duty, in cases of continued anti-competitive practices, to always appraise a Commission Decision to establish whether it contains separate proof of the individual involvement of every single undertaking concerned. (15)
69.
Since, in this case, neither the judgment under appeal nor the appellant's pleadings show what involvement, if any, the appellant was specifically denying, the accusation that the reasoning in the judgment under appeal is defective in this respect cannot be levelled at the Court of First Instance.
70.
The
third
ground of appeal, taking issue with the alleged defective reasoning in relation to the duration of the price-fixing agreements, must therefore be dismissed as
unfounded
.
3.
The alleged defective grounds for the judgment under appeal in relation to the sharing of the French market (fourth
ground of appeal)
Submissions of the parties
71.
The
appellant
takes issue with paragraph 296 et seq. of the judgment under appeal.
72.
The Court of First Instance did not accept its statement that the quantity exported in the fourth quarter of 1989 had been anything other than exceptional and had indeed been in line with its normal exports; it assumed that this did not constitute proof of non-participation in the agreement, the objective of which had been to stabilise the participants' deliveries at their customary levels.
73.
The appellant considers that the judgment under appeal failed to apply the principles established by the European Court of Justice in the CRAM and
Rheinzink
v
Commission
judgment (16) to the present case even though the Decision should also have been annulled here because there could have been a different explanation for the facts the subject of complaint to that given in the Decision.
74.
In the opinion of the
Commission
this ground of appeal is inadmissible because it is merely repeating the objections raised at first instance and is a question of appraisal of fact.
Appraisal
75.
As is apparent from paragraph 296 et seq. of the judgment under appeal, the appellant has already claimed in the proceedings before the Court of First Instance that there was an alternative explanation for its practices in relation to deliveries on the French market during the fourth quarter of 1989, which were considered in paragraph 70 of the Decision to have been anti-competitive market-sharing.
76.
The Court of First Instance addressed this issue in paragraph 270 of the judgment under appeal and found that the alternative explanation offered did not render the appellant's involvement in market-sharing in respect of France sufficiently uncertain. The Court of First Instance made express reference here to the case-law of the Court in
CRAM and Rheinzink
. (17)
77.
It must therefore be stated that, although the Court of First Instance examined the principles developed in the case-law cited, it declined to apply them in this particular case because it took the view that they could not invalidate the Commission's circumstantial evidence. This was an evaluation based on an appraisal of fact that as such ─ subject to review of potential distortion ─ cannot form the subject of appeal proceedings.
78.
The
fourth
ground of appeal, taking issue with the defective assessment of the agreement to share the French market, must therefore be dismissed asinadmissible
.
D ─
The ground of appeal relating to the fine (sixth ground of appeal)
79.
The
sixth
ground of appeal consists of two parts. In the first part the appellant takes issue with the assumption by the Court of First Instance that the conversion of the fine in the Decision into ecus was lawful. In the second part the appellant takes issue with the fact that the Court of First Instance calculated the fine on the basis of turnover in the final year of the infringements.
1.
The conversion of the fine into ecus at the rate of exchange in the final year of the infringements
Submissions of the parties
80.
The
appellant
takes issue with paragraph 471 of the judgment under appeal, in which the conversion of the fine into ecus at the rate of exchange for the final year of the infringements is found to be lawful.
81.
The Court of First Instance, the appellant argues, failed to take cognisance of the fact that the Commission acted unlawfully because, instead of levying the fine in pesetas and then converting it into ecus at the official exchange rate in force on the day before the Decision was adopted, it used for the purposes of the fine the appellant's relevant turnover at the rate of exchange in force in the year 1990, the final year of the period of infringement, converted it into ecus and incorporated that ecu figure into the Decision in 1994 without making any change.
82.
In view of the difference in the rate of exchange for the peseta and the ecu between the year 1990 and the day before the Decision was adopted, in 1994, this practice led, the appellant claims, to Ensidesa being unjustifiably fined an extra ECU 800 000.
83.
Relying on the judgment of the Court of Justice in the
Lührs
case, (18) according to which the exchange rate which is the less onerous for the taxpayer concerned should be applied, the appellant considers that the Court of First Instance has committed a violation of the principle of natural justice.
84.
The
Commission
combines its comments on both parts of this ground of appeal and considers the ground of appeal to be inadmissible in its entirety as it is simply repeating the grounds claimed in the Court of First Instance.
85.
The Commission also considers the ground of appeal unfounded. Application of the principle of natural justice, as construed by the appellant, would lead to the arbitrary determination of fines in each individual case and would be in violation of the principle of legal certainty, whereby it must be possible to establish with a degree of certainty what fine can be levied for a particular line of conduct.
86.
Application of the rate of exchange and turnover for the final year in which the infringement took place, the Commission continues, ensures uniform procedure for all the accused and is an option that best reflects the profits made by the offenders. No other solution would enable the practices the subject of complaint to be reasonably avenged in relation to the period in which they took place and the consequences resulting from them.
Appraisal
87.
In paragraph 87 et seq. of its judgment in the
Sarrió (19) case, concerning the problem of conversion of a fine into ecus at the rate of exchange in the final year of the infringements (although based on infringements of competition rules within the scope of the EC Treaty, that is to say in relation to Council Regulation No 17 of 6 February 1962 (20)) the Court ruled:
"In the present case, the appellant has not shown how the Court of First Instance, in not calling in question in the Commission's method of calculation based on the turnover in the last full year of the infringement, infringed Regulation No 17 or general principles of law.
First, Regulation No 17 does not prohibit the use of the ecu in order to fix the fines. Next, ... the Commission used one and the same method of calculating the fines imposed on undertakings for having participated in the same infringement and that method enabled it to assess the size and economic power of each undertaking and the scope of the infringement committed, in light of the economic reality as it appeared at the time the infringement was committed.
Lastly, as regards, in particular, monetary fluctuations, they are an element of chance which may produce advantages and disadvantages which the undertakings have to deal with regularly in the course of their business activities and whose very existence is not such as to render inappropriate the amount of a fine lawfully fixed by reference to the gravity of the infringement and the turnover achieved during the last year of the period over which it was committed. In any event, the maximum amount of the fine, determined by virtue of Article 15(2) of Regulation No 17 by reference to turnover in the business year preceding the adoption of the Decision, limits the possible harmful consequences of monetary fluctuations.
"
88.
As it is impossible to see why these principles should not apply, or should apply differently, within the scope of application of Article 65(5) of the ECSC Treaty relevant here, the appellant's argument must be rejected on the same grounds.
89.
Although in the
Sarrió
case the Court did not expressly refer to the case-law in the
Lührs
case cited by the appellant, it is obvious that the principle stated there in connection with tax on exports
"thus the appropriate answer is that in view of the uncertainties inherent in Regulation No 348/76, natural justice demands that for the purpose of converting the tax on exports into national currency the exchange rate which at the material time was less onerous for the taxpayer concerned should be applied" (21) cannot apply because of the different area of interests concerned in breaches of the prohibition of cartels within the Communities.
90.
The first part of the
sixth
ground of appeal, taking issue with the alleged defective assessment in law of the imposition of the fine in ecus, must therefore be dismissed as
unfounded
.
2.
The calculation of the fine on the basis of turnover in the final year of the period of infringement
Submissions of the parties
91.
The appellant takes issue here with paragraph 474 of the judgment under appeal. This paragraph countenances taking as the basis the turnover reached in the final year of the period of the infringement even though, when calculating the fines, the Commission should have taken as its basis the last turnover before the adoption of the Decision for which consolidated balance sheets were available to it, being the turnover for 1992 in the appellant's case. It argues that to take the year 1990 as the criterion is incompatible with the principles of legal certainty and natural justice.
92.
The appellant again relies in its reasoning on the judgment in the
Lührs
case, (22) which ruled that in the event of uncertainty the basis of calculation more favourable to the taxpayer concerned should be selected, which in the appellant's case would have signified an obligation to base the calculation of the fine on the last turnover figure available before adoption of the Decision.
93.
Nor would the judgment of the Court in the
Sarrió (23) case be inconsistent with that principle as the problem of legal uncertainty was not dealt with there in that way.
94.
The
Commission
has combined its comments on both parts of this ground of appeal. I therefore refer to paragraph 84 et seq. of this Opinion.
Appraisal
95.
In paragraph 85 et seq. of the judgment in the
Sarrió (24) case, regarding the problem of calculation of a fine on the basis of turnover in the final year of the period of infringement (although on the basis of infringements of competition rules within the scope of the EC Treaty, that is to say with regard to Regulation No 17) the Court stated:
"As to the legality of taking into account two reference years, one in order to determine the maximum amount of the fine, the other in order to assess the size and economic power of the undertaking at the time of the infringement, it should be pointed out, first, that the ceiling set by Article 15(2) of Regulation No 17 in respect of fines amounting to more than one million units of account and which corresponds to
"10% of the turnover in the preceding business year"
relates ... to the business year preceding the date of the decision. It is, moreover, logical to refer to that business year when determining the maximum amount of the fine which can be imposed on an undertaking that has infringed the competition rules.
Second, when the size and economic strength of an undertaking at the time of the infringements are being assessed, it is necessary to refer to the turnover achieved at that time ... In the contrary case, the respective size of the undertakings which took part in the infringement would be distorted by account being taken of extrinsic and uncertain factors, such as the changes in the value of national currencies during the subsequent period (see Case C-49/92 P
Commission
v
Anic Partecipazioni
[1999] ECR I-4125, paragraph 165).
"
96.
As it is impossible to see why these principles should not apply, or should apply differently, within the scope of application of Article 65(5) of the ECSC Treaty relevant here, the appellant's argument must be rejected on the same grounds.
97.
Nor is this inconsistent with the aspect of legal uncertainty claimed by the appellant in connection with the principle of equal treatment.
98.
The judgment in the
Lührs (25) case cited by the appellant cannot also be taken as grounds for this case because that was not a case concerning the calculation of a fine for breach of the prohibition on cartels within the Communities but a case that related to the calculation of a tax on exports, which covers a different area of interest. In the
Lührs
judgment the Court referred to legal uncertainty from the tax legitimacy aspect. In instances of infringements of the law on cartels within the Communities it is necessary ─ as the Court ruled in the
Sarrió
case ─ and particularly in order to achieve comparability, to take as the year of reference for the purposes of calculating the fine the last year of the period of infringement.
99.
Furthermore, the Commission does not have that freedom of choice apparently assumed by the appellant in relation to two possible years of reference according to the judgment in the
Sarrió
case. The
"preceding business year"
within the meaning of Article 15(2) of Regulation No 17 mentioned there patently only applies to that amount of turnover that is relevant to the ceiling on the fine (10% of the turnover). This provision, by its very objective (to avoid a disproportionate financial burden), permits of an interpretation whereby what is meant here is the business year preceding the adoption of the Decision. However, this is to be distinguished from the turnover on which the original amount of the fine is calculated. For the reasons of comparability given by the Court in the
Sarrió
case, that must be calculated on the turnover in the final year of the period of infringement.
100.
All in all, therefore, it cannot be assumed that, when determining the year of reference for the turnover that is to form the basis of calculation of a fine, the Commission is always obliged to select the year of reference that, in terms of the size of the fine, favours the individual undertakings involved in an infringement of competition.
101.
The second part of the
sixth
ground of appeal, taking issue with the alleged legally defective assessment of the fine on the basis of the turnover in the final business year of the period of infringement, must therefore also be dismissed as
unfounded
.
102.
The
sixth
ground of appeal, taking issue with the assessment of the fine by the Court of First Instance, must therefore be dismissed in its entirety as
unfounded
.
IV ─ Conclusion
103.
In the light of the foregoing, I accordingly propose that the Court:
─
dismiss the appeal;
─
order the appellant to bear the costs of the proceedings.
(1) .
(2)
Case T-157/94
Ensidesa
v
Commission
[1999] ECR II-707.
(3)
OJ 1988 L 212, p. 1.
(4)
See paragraph 33 of the judgment in Case T-141/94
Thyssen Stahl
v
Commission
[1999] ECR II-347.
(5)
OJ 1994 L 116, p. 1.
(6)
[2003] ECR I-10821.
(7)
Case C-137/92 P
Commission
v
BASF and Others
[1994] ECR I-2555.
(8)
Since there is no further need to answer the question whether the Court is obliged to ask the Commission for documents to prove whether no not there was the necessary quorum when the Decision was adopted, it should just be established here for the sake of completeness that the provisions correctly cited by the Commission preclude measures of inquiry being conducted by the Court in appeal proceedings.
(9)
See the judgment cited in footnote 7.
(10)
OJ 1993 L 230, p. 15.
(11)
Case C-7/95 P
John Deere
v
Commission
[1998] ECR I-3111.
(12)
Case T-68/89
SIV and Others
v
Commission
[1992] ECR II-1403, amongst other authorities.
(13)
Case 56/65
Société Technique Miniere
v
Maschinenbau Ulm
[1966] ECR 235; Case C-49/92 P
Commission
v
Anic Partecipazioni
[1999] ECR I-4125.
(14)
Case T-11/89
Shell
v
Commission
[1992] ECR II-757, paragraph 190, and Case T-295/94
Buchmann
v
Commission
[1998] ECR II-813.
(15)
In the
Shell
case criticism was levelled at the evidence actually taken by the Commission, which raised considerable doubts about the participation of an undertaking in all of the infringements of competition law commited during a continuing course of conduct; in the
Buchmann
case the applicant had argued the Commission had immediately concluded from the proven participation in price-fixing agreements and arrangements on machine downtime that it had also participated in market-sharing (both judgments cited in footnote 14).
(16)
Joined Cases 29/83 and 30/83 [1984] ECR 1679.
(17)
Cited in footnote 16.
(18)
Case 78/77
Lührs
[1978] ECR 169.
(19)
Case C-291/98 P
Sarrió
v
Commission
[2000] ECR I-9991. The judgment relates to the
Commission Decision of 13 July 1994 relating to a proceeding under Article 85 of the EC Treaty (IV/C/33.833 ─ Cartonboard) (OJ 1994 L 243, p. 1).
(20)
First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87).
(21)
Cited in footnote 18, paragraph 13.
(22)
Cited in footnote 18.
(23)
Judgment cited in footnote 19.
(24)
Cited in footnote 19.
(25)
Cited in footnote 18.