61999CC0195_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-147/94 ( "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 concerned 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 Krupp Hoesch Stahl AG (hereinafter
"the appellant"
) the Commission imposed a fine of ECU 13 000.
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 9 000 and dismissed the remainder of the action.
5.
On 25 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 on 11 March 1999 by the Court of First Instance in Case T-147/94 in so far as that judgment fixes the fine imposed on the appellant at EUR 9 000 (paragraph (2) of the operative part), dismisses the appellant's action (paragraph (3) of the operative part) and orders the appellant to bear its own costs and to pay half of the Commission's costs (paragraph (4) of the operative part);
(2)
annul Articles 1, 3 and 4 of Commission Decision C(94)321 final of 16 February 1994 relating to a proceeding pursuant to Article 65 of the ECSC Treaty concerning agreements and concerted practices engaged in by European producers of beams;
(3)
order the Commission to pay the costs of the proceedings at first instance and those of the present appeal.
7.
The Commission contends that the Court should:
(1)
dismiss the appeal;
(2)
order the appellant to pay the costs of the proceedings.
8.
According to its statement of appeal, the appellant invokes the following
grounds of appeal
:
First
ground of appeal:
"The judgment misconstrues the formal provisions of the Commission's 1993 Rules of Procedure governing authentication of the Commission Decision and therefore unjustifiably proceeds on the assumption that there was a validly adopted decision."
Second
ground of appeal:
"The judgment breaches in several respects Article 65(1) of the ECSC Treaty. It wrongly categorises the monitoring of orders and deliveries as a separate breach of competition rules without being able to explain why it was anti-competitive. It misconstrues the consequences of the term
"normal competition"
within the meaning of Article 65(1) of the ECSC Treaty and therefore errs in its finding that the undertakings' conduct the subject of complaint was in breach of competition rules. The Court of First Instance also misconstrues the legal significance of the fact that the appellant only took part in the exchange of information system as such.
"
Third
ground of appeal:
"Finally, in finding that the appellant had come to an agreement to fix prices prior to 18 April 1989, without substantiating either the content or date of that agreement, the judgment infringes the appellant's rights of defence, Article 15 of the ECSC Treaty, the principle of certainty and the appellant's entitlement to reasonable vindication of its legal rights."
Fourth
ground of appeal:
"The judgment infringes Article 65(5) of the ECSC Treaty and the fault principle inherent in that provision by unjustifiably assuming that the appellant was aware of the illegality."
Fifth
ground of appeal:
"The Court of First Instance breached Article 15 of the ECSC Treaty by failing to take proper account of the requirement that adequate reasons be given for the determination of the fine. It erred in law in its assumption that a lack of reasons could be remedied during the judicial proceedings."
Sixth
ground of appeal:
"Through the excessive length of the proceedings of almost five years, the Court of First Instance infringed the appellant's entitlement to vindication of its legal rights within a reasonable period."
Summary of the grounds of appeal and their component parts according to the essential issues of law involved
9.
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, in the judgment under appeal, the Court of First Instance breached Community law in that it:
─
erred in law in accepting the
formal legality
of the Decision, 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 of the ECSC Treaty (second
ground of appeal);
─
erred in law in accepting the
substantive legality
of the Decision, even though no breach of Article 65(1) of the ECSC Treaty had been committed, because
participation in the information exchange system
(6) did not constitute a separate infringement of competition (second
ground of appeal) and
the system for the exchange of information and the fixing of prices could not have had any detrimental effect on
"normal competition"
(second
ground of appeal) and
the Decision wrongly assessed the actual contribution made by the appellant in relation to the system for the exchange of information (second
ground of appeal) and
the Decision did not contain adequate reasons or substantiation in relation to the appellant's involvement in an agreement to fix prices on the German market, thereby also constituting an infringement of Article 15 of the ECSC Treaty (third
ground of appeal),
─
erred in law in its assessment of the
fine and the grounds given for it
(fourthand fifth
grounds of appeal);
─
contrary to
Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the
"ECHR"
)
, failed to vindicate the appellant's legal rights within a reasonable period (sixth
ground of appeal).
10.
The examination which follows will base itself around this summary. The grounds of appeal put forward by the appellant and the subdivisions and arguments contained therein, together with the Commission's arguments, will be set out under these individual points.
11.
The grounds of appeal in the present proceedings substantively correspond in part to the grounds of appeal and their subdivisions submitted in Case C-194/99 P
Thyssen Stahl AG
v
Commission of the European Communities
.
(7)
My Opinion in that case is also being delivered today. Where the content of the submissions is the same I will refer in this Opinion to the appraisal that I have undertaken in my Opinion on Case C-194/99 P.
III ─ Examination of the case
A ─
The ground of appeal alleging a legally defective assessment of the formal legality of the Decision (first ground of appeal)
12.
The
first
ground of appeal consists of two parts. In the first, the appellant challenges the assumption made by the Court of First Instance that, at the time of adoption by the Commission, the necessary quorum for voting purposes was present. In the second part, 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.
1. The quorum when the Decision was adopted by the Commission
Submissions of the parties
13.
The
appellant
submits that the Court of First Instance, in paragraph 70 of the judgment under appeal, misconstrued the minutes of the session of the College of Members of the Commission on 16 February 1994 at which the Decision was adopted and, in doing so, breached Articles 5 and 6 of the Commission's 1993 Rules of Procedure.
(8) The Court of First Instance had indeed assumed that the quorum of Commission Members required in order to adopt the Decision had been present, although it is apparent from the wording of page 40 of the minutes that the number of Commission Members needed to adopt the Decision had not been present.
14.
This interpretation does not conform to the principle of collegiality ruled by the Court in its judgment in Case C-137/92 P.
(9)
15.
The
Commission
considers this ground of appeal to be inadmissible since it challenges the determination of facts and assessment of evidence which come within the purview of the Court of First Instance alone.
16.
In the alternative, it contends that this ground of appeal is also unfounded. Page 40 of the minutes records which Cabinet heads and members attended the session
"in the absence of the Commission Members"
. However, this does not place in question the documentary function and evidentiary force of the attendance list on page 2 of the minutes, which records which Commission Members were present when point XXV was discussed and which were absent.
Appraisal
17.
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 this 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
.
18.
The first part of the
first
ground of appeal, challenging the alleged failure to take account of the fact that there was not the quorum required for the Decision to be adopted, must therefore be dismissed on the ground that it is
inadmissible
.
2.
The question of the proper adoption by the Commission of the Decision and the substantive correspondence between the versions of the Decision as notified and as adopted
Submissions of the parties
19.
The
appellant
takes issue with paragraphs 83 to 87 of the judgment under appeal in which the Court of First Instance rejected as unfounded the appellant's head of complaint that version C(94)321 final of the Decision notified to it had not been authenticated in accordance with Article 16 of the 1993 Rules of Procedure. The Court of First Instance did not hold that the version notified to the appellant was identical to the versions C(94)321/2 and C(94)321/3, nor did it hold that it had been annexed to the minutes in the due and proper manner.
20.
The Court of First Instance, the appellant continues, assumed that the Decision had been authenticated in the due and proper manner and referred, in paragraph 85, to the presumption of validity applying to Community actions. In doing so it failed to take proper account of the aim of that presumption since the presumption of validity does not preclude a declaration of annulment in the event of an infringement of formal requirements on the adoption of a Decision.
21.
Further, the Commission was not in a position to produce the minutes with the original signatures of its President and Secretary-General, and the minutes did not indicate the date on which they were signed.
22.
The
Commission
considers this ground of appeal to be inadmissible. In arguing that the notified version of the Decision was not annexed to the minutes the appellant is disputing that the version notified was identical to the versions C(94)321/2 and C(94)321/3, even though establishment of their identical nature forms part of the determination of the facts.
Appraisal
23.
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
first
ground of appeal should be dismissed as inadmissible, to paragraph 63 et seq. of the Opinion that I am delivering today in the aforementioned case. Those grounds apply
mutatis mutandis
.
24.
The second part of the
first
ground of appeal, which challenges the failure to take account of the improper authentication of the Commission's Decision, must therefore similarly be dismissed as being
inadmissible
.
25.
The whole of the
first
ground of appeal must therefore be dismissed as being
inadmissible
.
B ─
The ground of appeal alleging that the Court of First Instance exceeded its jurisdiction (second ground of appeal)
26.
The appellant is not claiming that there has been a breach of Article 33 of the ECSC Treaty in its citation of the
second
ground of appeal, but in its reasoning on the first part of this ground of appeal.
Submissions of the parties
27.
The
appellant
is submitting that the Court of First Instance was in breach of this provision, under which it only has jurisdiction to examine decisions relating to undertakings. In considering, in paragraph 122 of the judgment under appeal, that the information exchange system constituted a separate infringement, the Court of First Instance construed the Commission's Decision in a manner which did not correspond to the substance of the Decision, according to the express statements by the Commission. The Court of First Instance thereby exceeded its jurisdiction to examine the disputed Decision under Article 33 of the ECSC Treaty since it does not have competence in an annulment action to alter the substance of a Commission Decision.
28.
The
Commission
considers this ground of appeal inadmissible in this respect. The issue of whether participation in the information exchange system was classified in the Commission Decision as a separate infringement or as part of wider infringements is not a question of law; it calls into question the assessment of fact made by the Court of First Instance. However, the Court has no jurisdiction to review this.
29.
The Commission submits in the alternative that the ground of appeal is unfounded in this respect. The Court of First Instance had to examine the Commission's Decision and not the explanations given by the Commission's agents in the judicial proceedings. It is apparent from recitals 266 to 271, 300 and 314 and from Article 1 of the Decision that participation in the information exchange system is mentioned separately alongside other infringements.
Appraisal
30.
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 first part of the
second
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
.
31.
The first part of the
second
ground of appeal, alleging that the Court of First Instance unlawfully exceeded its jurisdiction under Article 33 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
32.
The appellant is alleging this infringement of the Treaty in the second to fourth parts of its
second
ground of appeal and in the
third
ground of appeal.
1.
Whether participation in the information exchange system constituted a separate infringement of competition (second
ground of appeal)
33.
This issue is raised in the second part of the
second
ground of appeal.
Submissions of the parties
34.
The
appellant
initially takes issue with paragraph 122 of the judgment under appeal. It argues that the judgment based on the assumption made therein that participation in the information exchange system constituted a separate infringement is defective in law because the Court of First Instance did not substantiate and prove the alleged anti-competitive effect of the information exchange system as a separate infringement.
35.
Where an information exchange system is deemed to constitute a separate breach of Article 65(1) of the ECSC Treaty, the restrictive effect on competition resulting from the information exchange system must follow from that system itself and, if relevant, from the general market structure, but not from the connection between the information exchange system and an alleged price ring separate from it.
36.
The view of the Court of First Instance (paragraphs 135 and 142 of the judgment under appeal) that the information exchange systems adversely affected the participating producers' decision-making independence was, the appellant argues, defective in law. It was wrongly based on the case-law of the Court of First Instance in the so-called
"Tractor
cases"
,
(10) which is not relevant here. In principle, transparency resulting from such an exchange stimulates competition in a market characterised by competition. It is only where a market is not characterised by competition, particularly where its structure is characterised by a narrow oligopoly, that it is possible for the decision-making independence of the undertakings concerned to be adversely affected.
37.
The Court of First Instance erred in law in assuming, without any reason, that the structure of the market in beams was that of a narrow oligopoly even though it had stated in paragraph 134 of its judgment that the 10 largest undertakings held only two thirds of the market share. Such a market structure indicates strong competition among the many competitors and does, in any event, preclude the assumption of a simple oligopolistic structure.
38.
The
Commission
submits that this ground of appeal, its reasoning being couched in very general terms, is inadmissible in as much as it does not state which grounds of the judgment the appellant is challenging or on what legal argument it is based.
39.
The ground of appeal challenging the Court of First Instance finding as to the oligopolistic structure of the market in beams must, the Commission argues, be rejected as inadmissible on the ground that it questions the appraisal of facts by the Court of First Instance. Further, the appellant had itself already described the steel beams market as an oligopolistic market in the proceedings before the Court of First Instance.
40.
Finally, the criticism levelled at reference to the case-law in the
Tractor
cases is unfounded. An information exchange system can have no effect on competition only if there is an atomisation of supply. There cannot be any question of this in the beams market, where two thirds of apparent use is attributable to 10 of the undertakings involved in the information exchange system.
41.
The Court of First Instance did in this respect, in paragraphs 124 to 137 of the judgment, set out in detail the reasoning on which the anti-competitive nature of the information exchange system was based.
42.
The Commission contends, with regard to the issue of alleged differences in market structures, that when the structure of the market in steel beams is compared with that of the tractor market in the United Kingdom, although the tractor market proves to be more concentrated, the lower level of concentration in the steel beams market is counterbalanced by the products' greater homogeneity, with the result that competition based on product characteristics is limited.
Appraisal
43.
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 being in part inadmissible and mainly unfounded, to paragraph 109 et seq. of the Opinion that I am delivering today in the aforementioned case. Those grounds apply
mutatis mutandis
.
44.
The second part of the
second
ground of appeal, criticising the failure to rule that the information exchange system did not constitute a separate issue under competition law, must for those reasons be dismissed as being in part
inadmissible
and mainly
unfounded
.
2.
The adverse effect which the information exchange system had on
"normal competition"
within the meaning of Article 65 of the ECSC Treaty (second
ground of appeal)
45.
This issue is raised in the third part of the
second
ground of appeal.
46.
The
appellant
submits that the Court of First Instance was in breach of Article 65(1) of the ECSC Treaty, particularly in paragraphs 147 and 149 of the judgment under appeal, in assuming on the basis of a misconstruction of the elements of
"normal competition"
that this had been adversely affected by the information exchange system. In doing so it failed to take cognisance of the fact that, from 1 July 1988 to 20 June 1990,
"normal competition"
within the meaning of that provision was characterised by a monitoring system operated by the Commission under which undertakings were obliged to provide the Commission with their joint forecasts of market parameters, which meant that they had to discuss their individual data amongst themselves.
47.
The conduct of DG III, it claims, influenced
"normal competition"
inasmuch as these measures were undertaken within the framework of the ECSC Treaty, as a result of which the initial competitive position differed.
48.
The Court of First Instance erred in law in failing to recognise that this mode of conduct was essential to cooperation with the Commission ─ and in not then drawing the necessary legal conclusions.
49.
In the opinion of the
Commission
the question of whether the exchange of data on orders and deliveries was essential to cooperation with the Commission is an issue of fact and not of law. Hence, the ground of appeal is inadmissible in this respect.
50.
It submits, in the alternative, that the judgment under appeal does not accept that an exchange of individual data on orders and deliveries was essential to cooperation with the Commission. In paragraphs 168 to 175 of the judgment under appeal the Court of First Instance stated that the undertakings had concealed the existence of the information exchange systems in question from the Commission. In arguing that the information exchange system of which the undertakings stand accused was essential to cooperation with the Commission, the appellant is contesting the finding and appraisal of facts by the Court of First Instance.
Appraisal
51.
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 third 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.
52.
The third part of the
second
ground of appeal, challenging the failure to rule that the information exchange system had an adverse effect on
"normal competition"
within the meaning of Article 65 of the ECSC Treaty must for those reasons be dismissed as being
unfounded
.
3.
The assessment of the appellant's de facto contribution to the information exchange system (second
ground of appeal)
53.
This issue is raised in the fourth part of the
second
ground of appeal.
Submissions of the parties
54.
The
appellant
takes issue with paragraph 143 of the judgment under appeal, in which the Court of First Instance came to the conclusion that the appellant's participation in the information exchange system was in breach of the competition rules even though it could not have drawn any conclusions about figures for the U sections that it manufactures from the information exchanged as the information only related to total tonnages for I, T and U sections.
55.
An infringement of competition rules therefore lies, if at all, in participation in the discussions based on the information exchange system in which, however, as the Court of First Instance expressly states in paragraph 104 of the judgment under appeal, the appellant was not involved.
56.
The Court of First Instance should not have condemned the appellant for the fact that the data supplied by it did at least make it easier for the other undertakings to review the market position. This, it claims, constitutes
"citing third-party conduct"
which cannot form the basis of an offence under competition law on the appellant's part. It would then be a case of liability for
"incitement or complicity"
, which lies outside the scope of Article 65(1) of the ECSC Treaty. As there is no rule of Community law that extends liability beyond the elements of the offence punishable under Article 65(1) of the ECSC Treaty to incitement or complicity, the Court of First Instance has failed to observe the principle of
nullum crimen sine lege
(no punishment without law) which is a general legal principle applicable also to criminal proceedings in relation to administrative affairs and derived from Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
57.
The
Commission
considers this argument to be inadmissible because it challenges the finding and appraisal of fact by the Court of First Instance.
58.
It argues, in the alternative, that this plea is unfounded. The fact that the appellant did not attend the meetings and discussions does not stop participation in the information exchange system from being a restraint of competition. By participating in the information exchange system the appellant enabled the other undertakings to examine the extent to which it was itself keeping to traditional trade flows. In the end, a party that discloses information usually treated as confidential, thereby reducing the uncertainty that would otherwise exist amongst other undertakings, is itself committing an infringement of the competition rules. Nor does the appellant explain why it undoubtedly participated in the information exchange system even though the data that it received was allegedly unusable.
Appraisal
59.
The appellant's plea contains two different arguments: firstly, it questions whether the Court of First Instance was right to consider that it had itself committed an offence by participating in the information exchange system; secondly, it levels criticism at the Court of First Instance for considering its participation to constitute, not an offence but just ─ as the appellant terms it ─
"complicity"
in the other participants' offences, and as such including it in the elements of the offence under Article 65(1) of the ECSC Treaty.
60.
First of all, the Commission's argument that this is an improper objection to a finding or appraisal of fact is refuted. The appellant is not actually challenging the conclusions to which the Court of First Instance came in relation to the advantages which it might have gained from participating in the information exchange system.
61.
It should be noted with regard to the appellant's commission of an offence that, in paragraph 148, the Court of First Instance, relying on its case-law in the so-called
Tractor
cases,
(11) considered the very participation in the information exchange system
in se
to be a separate infringement of competition. In paragraph 140 of the judgment under appeal it is also stated that
"the anti-competitive nature of the exchange complained of ... [lies] in the nature of the information dispersed"
. The Court of First Instance finally took the appellant's lack of participation in the discussions based on that information as reason to reduce the coefficient of the fine for participating in the information exchange system.
(12)
62.
What the Court of First Instance was therefore actually saying was that the inclusion of the appellant's own statistics in the information exchange system at issue constitutes commission of an offenceper se
and it is therefore irrelevant whether the undertaking providing them also derived advantages from the information exchange system output.
63.
There can be no objection to this viewpoint since it is in conformity with the grounds on which the Court has ruled participation in certain information exchange systems to be a separate anti-competitive act independent of classic breaches of competition resulting therefrom (such as price-fixing agreements or market-sharing). In the judgments in the
Tractor
cases
(13) the Court ruled that such systems are anti-competitive because they dispense with an attribute of competition in its ideal form, namely the
risk of uncertainty
.
(14) Hence, an offence is committed by anybody who disrupts the ideal of
"undertakings uninformed of the commercial secrets of competitors"
by participating in such an information exchange system. A breach of competition rules therefore lies not only in the removal of its own corresponding uncertainty, but also in the fact that such a system is fed data that is useful to others.
64.
Paragraphs 140 and 143 of the judgment under appeal do not therefore warrant the conclusion drawn by the appellant, namely that the Court of First Instance has here created a new category of competition law (liability under competition law in the case of accomplices who are not themselves perpetrators)
(15) and has applied it to the case at issue.
65.
Hence it is unnecessary to address the question of whether such a ─
"new"
─ category would be covered by Article 65(5) of the ECSC Treaty. Nor is it necessary to address the question of whether the introduction of such a category would represent an infringement of Article 7 ECHR on unforeseeability grounds.
(16)
66.
The fourth part of the
second
ground of appeal, criticising the ruling that the appellant did actually take part in the information exchange system, must for those reasons be dismissed as
unfounded
.
4.
The appellant's commission of an offence in relation to a price-fixing agreement for the German market (third
ground of appeal)
Submissions of the parties
67.
The
appellant
makes reference to paragraph 162 of the judgment under appeal where the Court of First Instance, referring to the remark quoted in paragraph 160 of the judgment under appeal, namely
"the other suppliers ─ primarily Hoesch ─ are first of all to abide by the agreed prices"
, states:
"In the present context that remark is adequate legal proof of the fact that TradeARBED and Hoesch concluded a price-fixing agreement at a point in time prior to 18 April 1989."
68.
The Court of First Instance, it claims, has taken a simple file note as being proof of the existence of a breach of competition, without establishing the content or date of that agreement.
69.
The Court of First Instance has therefore infringed the appellant's rights of defence, Article 15 of the ECSC Treaty, the principle of certainty and its entitlement to reasonable protection of its rights.
70.
The
Commission
considers the plea to be inadmissible because the appellant is challenging the appraisal of established facts without claiming that the finding of fact by the Court of First Instance was wrong or that the evidence was distorted.
Appraisal
71.
In the
third
ground of appeal the appellant is clearly challenging the appraisal of fact
(17) by the Court of First Instance in relation to the note quoted in paragraph 160 of the judgment under appeal. This cannot be the subject of an appeal ─ subject to examination of potential distortion.
72.
The
third
ground of appeal, challenging the finding of commission of an offence by the appellant in relation to a price-fixing agreement for the German market, must therefore be dismissed as
inadmissible
.
D ─
The grounds of appeal relating to the fine
1. Inadequate consideration of the fault principle (fourth
ground of appeal)
Submissions of the parties
73.
The
appellant
alleges that the Court of First Instance infringed Article 65(5) of the ECSC Treaty and the fault principle in overestimating the degree of fault attributable to the appellant. It did not take account, in particular, of the effect of the Commission's conduct as a result of which a degree of ambiguity was created with regard to the scope of the concept of normal competition as used in Article 65(1) of the ECSC Treaty and, it claims, it was wrongly assumed in paragraph 149 of the judgment that the appellant had been aware of the full extent of the illegality of its conduct. The Court of First Instance was consequently wrong in failing to take account of its genuine low level of awareness of the illegality in mitigation when assessing the fine.
74.
The
Commission
submits that the Court of First Instance stated, in paragraphs 101 to 103 of the judgment under appeal, that the appellant itself participated in the information exchange system. Furthermore, the information exchanged by the undertakings (summarised statistics) was not that supplied to the Commission but individualised data on orders and deliveries of which, as can be seen from paragraph 168 of the judgment under appeal, the Commission was unaware. There could not, the Commission continues, be any question of ambiguity having been caused by the Commission.
Appraisal
75.
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
fourth
ground of appeal should be dismissed as unfounded, to paragraph 171 et seq. of the Opinion that I am delivering today in the aforementioned case. Those grounds apply
mutatis mutandis
.
76.
The
fourth
ground of appeal, alleging that inadequate attention was paid to the fault principle, must therefore be dismissed as being
unfounded
.
2. The absence of grounds explaining the level of the fine (fifth
ground of appeal)
Submissions of the parties
77.
The
appellant
submits that the Court of First Instance failed to take proper account of the requirement of a sufficient statement of reasons for the assessment of the fine and was therefore in breach of Article 15 of the ECSC Treaty.
78.
In paragraph 196 of the judgment, the appellant continues, the Court of First Instance considers adequate reasons to have been given in the Decision although, according to the case-law of the Court of Justice, the statement of reasons for the assessment of the fine in a Commission Decision must enable the parties to determine what specific criteria were applied in their case to the assessment of the fine and the manner in which this was done. This was not the case here.
79.
The Court of First Instance also contradicted itself by ruling, in paragraphs 198 and 199 of the judgment under appeal, that it should be possible for the undertakings to find out how the fine has been calculated without having to take court action, whilst stating in paragraphs 200 and 201 that information on the assessment of the fine did not form part of the reasoning.
80.
The
Commission
contends that the Court of First Instance examined the reasoning for the level of the fine in paragraph 197 of the judgment under appeal in particular. It does not consider the statements made by the Court of First Instance to be a contradiction in terms. Although the Court of First Instance, in paragraph 198, described disclosure of the method of calculating the fine in the Decision as
"desirable"
, it was not mandatory. It was therefore entitled to assume that the Commission had fulfilled its duty to state its reasons since all the criteria for determination of the level of the fine were stated in the Decision.
Appraisal
81.
First of all, it is agreed with the Commission that the paragraphs in the judgment under appeal with which the appellant takes issue are not contradictory.
82.
The Court of First Instance stated in paragraph 198 et seq. of the judgment under appeal that disclosure of mathematical formulae, where applied by the Commission, is
"desirable"
. Hence, the assumption made in paragraph 200 of the judgment under appeal, that such disclosure does not have to be made in the Decision itself and can be undertaken at a later stage in the judicial proceedings, does not amount to a contradiction.
83.
Since the arguments put forward also 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
fifth
ground of appeal should be dismissed as unfounded, to paragraph 217 et seq. of the Opinion that I am delivering today in the aforementioned case. Those grounds apply
mutatis mutandis
.
84.
The
fifth
ground of appeal, alleging insufficiency of grounds explaining the level of the fine, must for those reasons be dismissed as being
unfounded
.
E ─
The ground of appeal alleging that the duration of the proceedings in the Court of First Instance amounted to a breach of the ECHR (sixth ground of appeal)
Submissions of the parties
85.
The
appellant
submits that, by reason of the excessive duration of almost five years for the proceedings, the Court of First Instance infringed its entitlement to protection of its rights within a reasonable period of time. In the judgment in the
Baustahlgewebe
case
(18) the Court of Justice considered a duration for proceedings of five years and six months to be unjustified.
86.
The proceedings must be considered in their entirety: the Court is being called on in the present case to adjudge events which already date back more than 10 years, and indeed will date back almost 15 years by the time that final judgment is delivered. After the elapse of such a period of time, a decision will no longer affect the undertaking in the form in which it was involved in the infringements, nor the staff actually involved; this resembles rather a denial of justice.
87.
The
Commission
contends, firstly, that the appellant may, by its invocation of Article 6(1) of the ECHR, take issue only with the duration of the judicial proceedings, but not with that of the administrative procedure. However, the proceedings in the present case were not excessively lengthy in comparison with the proceedings in the
Baustahlgewebe
case. The reasonableness of the duration of proceedings must be assessed according to the circumstances applicable in each individual case and, in particular, according to the interests in issue for the parties in the case, the complexity of the case and the conduct of the applicant and of the competent authorities.
88.
In the present case, the Commission continues, the Commission imposed a fine of ECU 13 000 on the appellant, the complexity of the case was due to the scope of the Commission's Decision and ─ as is apparent from paragraphs 20 to 25 of the judgment under appeal ─ to the fact that eleven applications were lodged in four different languages, with 65 files and almost 11 000 numbered documents. Dealing with the requests for inspection of the Commission's internal documentation made by the appellant from the beginning of 1995 also necessitated procedural measures by the Court of First Instance. In view of these circumstances there can be no question of the duration of the judicial proceedings having been excessive.
Appraisal
89.
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
sixth
ground of appeal should be dismissed as unfounded, to paragraph 230 et seq. of the Opinion that I am delivering today in the aforementioned case. Those grounds apply
mutatis mutandis
.
90.
The
sixth
ground of appeal, taking issue with the duration of the proceedings before the Court of First Instance, must for those reasons be dismissed as
unfounded
.
IV ─ Conclusion
91.
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-147/94
Krupp Hoesch
vCommission
[1999] ECR II-603.
(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)
The appellant speaks of
"the monitoring of orders and deliveries"
(in the singular) but is obviously referring to both the monitoring of orders and deliveries within the Poutrelles Committee and the exchange of information within the Walzstahl-Vereinigung. As the existence of two systems of information exchange which supplemented each other (see paragraph 371 of the judgment in Case T-141/94 [cited in footnote 4]) does not, in the appellant's case, appear to have had any bearing on the Decision, the judgment under appeal or on the appellant's submissions, references in what follows shall uniformly be to
"the"
information exchange system in the singular.
(7)
[2003] ECR I-10821.
(8)
OJ 1993 L 230, p. 15.
(9)
Commission
v
BASF and Others
[1994] ECR I-2555.
(10)
Judgment in Case T-34/92
Fiatagri and New Holland Ford
v
Commission
[1994] ECR II-905.
(11)
Judgments in Cases T-34/92 (cited in footnote 10) and T-35/92
John Deere
v
Commission
[1994] ECR II-957.
(12)
See paragraph 205 et seq. of the judgment under appeal.
(13)
Judgments in the respective appeals in Cases C-8/95 P
New Holland Ford
v
Commission
[1998] ECR I-3175 and C-7/95 P
John Deere
v
Commission
[1998] ECR I-3111.
(14)
See in more detail paragraph 118 et seq. of my Opinion in
Thyssen Stahl
v
Commission
(cited in footnote 7).
(15)
In my view there is no need even at the present time to make a formal distinction between
complicity
and
aiding and abetting
under Community competition law. The Court of Justice actually allows a relatively wide application of competition law, for example, single infringement in the form of a sequential link between phases of active conduct and passive participation (see the judgment in the
Polypropylene
cases, particularly Case C-235/92 P
Montecatini
v
Commission
[1999] ECR I-4539). In certain circumstances, therefore, complicity is established even in situations that, under the general criminal law of many Member States, would amount to the lesser offence of aiding and abetting. In the Community-law context, therefore, although the dogma might differ, the end is still the same: a wide framework is provided for establishing complicity and the Commission can acknowledge the presence of different forms of involvement in an infringement of competition by reducing the
"gravity"
of participation in the offence when determining the amount of the fine to be imposed. The Court of First Instance also found accordingly in paragraph 144 of the judgment under appeal, in which it is stated
"that although the applicant's special situation as a manufacturer of U sections with a small quota of the Community market in beams can, in certain circumstances, have an effect on how the gravity of the offence of which it is accused should be assessed, it does not in any way alter the assessment of the existence and nature of that offence."
(16)
See, for example, the ECHR judgment in
S.W.
v
United Kingdom,
Series A, No 335/B, paragraph 36, where it is stated in a case in which there had been a change in national case-law (the offence of rape within marriage was acknowledged in 1990 although impunity had been assumed since 1736):
"However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, ... the progressive development of the criminal law through judicial law-making is a well entrenched and necessary part of legal tradition. Article 7 of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen."
(17)
See also, regarding the distinguishing of findings of fact, appraisal of facts and legal issues on the interpretation of documents, paragraph 54 et seq. of my Opinion in Case C-194/99 P (cited in footnote 7), which I am also delivering today.
(18)
Judgment in Case C-185/95 P
Baustahlgewebe
v
Commission
[1998] ECR I-8417.