COMMISSION DECISION 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 (Only the Spanish, German, English, French and Italian texts are authentic) (94/215/ECSC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Coal and Steel Community, and in particular Article 65 thereof,

Having regard to information received by the Commission and inspections carried out pursuant to Article 47 of the ECSC Treaty by officials of the Commission,

Having regard to the written and oral comments made pursuant to Article 36 of the ECSC Treaty in the name and on behalf of the parties,

Whereas:

I. FACTS

A. SUMMARY OF THE RESTRICTIONS OF COMPETITION

(1) The restrictions of competition which the Commission objects to stem from a series of agreements, decisions and concerted practices which have as their object or effect the fixing of prices, the allocation of quotas and an extensive exchange of information on the market for beams in the Community. Some of these agreements or concerted practices date back to 1984 at least.

(2) This cooperation between European producers and distributors of beams and some of their associations proceeded on different levels which may be summarized as follows:

(a) COMMUNITY:

On a Community level the most important forum for this cooperation were the meetings of a group known as the 'Poutrelles Committee', one of the committees of Eurofer. The exchange of information through Eurofer also has to be mentioned in this context.

(b) INDIVIDUAL MARKETS:

Apart from the meetings of the Poutrelles Committee, undertakings and associations of undertakings also met, on a more irregular basis, to discuss the markets of individual Member States - namely Italy, France and Germany - and to coordinate their behaviour on these markets.

(c) INDIVIDUAL AGREEMENTS:

In addition to the cooperation outlined above some companies entered into individual market-sharing and/or price-fixing arrangements.

(d) EUROFER/SCANDINAVIA:

Undertakings and associations of undertakings from the Community regularly met their counterparts from Norway, Sweden and Finland at the so-called 'Eurofer/Scandinavia' meetings where the Scandinavian markets (including the Danish market) were discussed.

B. THE PRODUCTS CONCERNED

(3) The products concerned by the present proceedings are wide-flanged beams and other I, H und U sections with a diameter of 80 mm and more (with the exception of mine frame sections). These products are together referred to in this Decision as 'beams'. They are finished hot-rolled long products which are mainly used in the construction industry. Beams are ECSC products within the meaning of Article 81 of the ECSC Treaty.

The undertakings and associations concerned divide beams into various categories. The following is the categorization which was introduced in Germany in July 1987:

"" ID="1">1> ID="2">IPN 80 to 220

UPN 80 to 220"> ID="1">2a> ID="2">IPE 80 to 220"> ID="1">2b1> ID="2">HE 100 to 180"> ID="1">2b2> ID="2">UPN 240 to 300

IPE 240 to 330

HE 200 to 220"> ID="1">2b3> ID="2">IPN 240 to 300

IPE 360 to 400

HE 240 to 300"> ID="1">2c> ID="2">IPN 320 to 500

UPN 320 to 400

IPE 450 to 600

HE 320 to 600"> ID="1">3> ID="2">IPN 550 to 600

IPE 750

HE 650 to 1 000">

As from 1 July 1990 a new category 2d (UPN 320 to 400) was used in Germany.

The same categories (with minor modifications) are used by all the parties concerned with regard to the ECSC markets on the continent.

Due to the fact that the 'imperial' sizes are still being used in the United Kingdom, different categories are used there. The products concerned are classified as joists, beams/columns and channels. In the fourth quarter of 1990 for example the following categories were applied:

"" ID="1">A 1> ID="2">203 × 133 all kg weights

152 × 152 all kg weights"> ID="1">A 2> ID="2">203 × 102

254 × 102 × 22 only

254 × 146 all kg weights

305 × 165 all kg weigths

356 × 171 all kg weigths

406 × 178 × 54

406 × 178 × 60only

457 × 191 × 67

457 × 191 × 74only

533 × 210 × 82

533 × 210 × 92only

203 × 203 × 46

203 × 203 × 52

203 × 203 × 60

only

254 × 254 × 73

254 × 254 × 89only"> ID="1">A 3> ID="2">All other beams and columns">

(4) Under the terms of the various measures adopted by the Commission since 1980 in order to deal with the crisis in the steel industry (see section G) beams were - together with mine frame sections - being referred to as 'Category III'. Notwithstanding the expiry of these measures, this expression is still used in the industry.

C. THE MARKET

(5) As Table 1 shows, the production of beams in the ECSC has grown markedly during the period up to the year 1990 (1)

Table 1 Production in the ECSC "(in 1 000 tonnes)>

"> ID="1">1984> ID="2">4 769"> ID="1">1985> ID="2">5 218"> ID="1">1986> ID="2">6 508"> ID="1">1987> ID="2">6 618"> ID="1">1988> ID="2">7 580"> ID="1">1989> ID="2">7 944"> ID="1">1990> ID="2">8 003""(Source: Eurostat)

>

(6) The most important ECSC producers are located in the United Kingdom, Germany, Spain and Luxembourg respectively. Table 2 shows the production of beams per Member State in the years between 1986 and 1990:

Table 2 Production "(in tonnes)>

"> ID="1">Germany> ID="2">1 266 587> ID="3">1 279 870> ID="4">1 480 212> ID="5">1 529 624> ID="6">1 552 923"> ID="1">Belgium> ID="2">320 294> ID="3">260 964> ID="4">309 830> ID="5">334 362> ID="6">357 879"> ID="1">France> ID="2">560 076> ID="3">541 985> ID="4">619 810> ID="5">568 153> ID="6">571 734"> ID="1">Italy> ID="2">573 148> ID="3">635 723> ID="4">733 699> ID="5">836 150> ID="6">926 494"> ID="1">Luxembourg> ID="2">1 002 647> ID="3">928 279> ID="4">1 096 178> ID="5">1 195 990> ID="6">1 189 903"> ID="1">United

Kingdom> ID="2">1 321 718> ID="3">1 528 223> ID="4">1 721 151> ID="5">1 787 280> ID="6">1 770 252"> ID="1">Spain> ID="2">1 284 330> ID="3">1 243 093> ID="4">1 379 117> ID="5">1 379 805> ID="6">1 336 744"> ID="1">Portugal> ID="2">22 703> ID="3">20 262> ID="4">26 172> ID="5">28 383> ID="6">20 810"> ID="1">Ireland> ID="2">156 626> ID="3">179 239> ID="4">213 505> ID="5">283 762> ID="6">276 636"> ID="1">Total> ID="2">6 508 129> ID="3">6 617 638> ID="4">7 579 674> ID="5">7 943 509> ID="6">8 003 375""(Source: Eurostat - Steel Data Base)

>

(7) Trade between the Member States of the ECSC is very important. In 1990, for example, imports from other Member States amounted to more than 36 % of overall production. An important part of the Community production (normally around 25 %) is exported to third countries. Imports of beams from third countries are less important.

Table 3 Trade between Member States and with third countries "(in 1 000 tonnes)>

"> ID="1">1988> ID="2">2 349> ID="3">640> ID="4">2 989> ID="5">2 302> ID="6">1 853> ID="7">4 155"> ID="1">1989> ID="2">2 635> ID="3">655> ID="4">3 290> ID="5">2 604> ID="6">1 863> ID="7">4 467"> ID="1">1990> ID="2">2 895> ID="3">619> ID="4">3 514> ID="5">2 877> ID="6">1 939> ID="7">4 816""(Source: Eurostat)

>

(8) It is difficult to establish exactly the consumption of beams in the ECSC as there are not sufficiently precise and detailed statistics on the movements in stocks of the products concerned at the various levels in the distribution chain (producer, stockholder and consumer). However, it is possible to calculate the apparent consumption by adding imports from third countries to production and deducting exports to third countries. These approximate figures give an idea of the importance of the products concerned:

Table 4 Apparent consumption in the ECSC "(in 1 000 tonnes)>

"> ID="1">1988> ID="2">7 580> ID="3">640> ID="4">1 853> ID="5">6 367"> ID="1">1989> ID="2">7 943> ID="3">655> ID="4">1 863> ID="5">6 735"> ID="1">1990> ID="2">8 003> ID="3">619> ID="4">1 939> ID="5">6 683""(Source: Eurostat)

>

(9) As some of the agreements and concerted practices are concerned with the markets of individual Member States it is necessary to consider these sub-markets:

Table 5 German market "(in 1 000 tonnes)>

"> ID="1">1988> ID="2">1 480> ID="3">440> ID="4">254> ID="5">694> ID="6">578> ID="7">213> ID="8">791> ID="9">1 577"> ID="1">1989> ID="2">1 530> ID="3">490> ID="4">378> ID="5">868> ID="6">633> ID="7">218> ID="8">851> ID="9">1 513"> ID="1">1990> ID="2">1 553> ID="3">560> ID="4">343> ID="5">903> ID="6">715> ID="7">204> ID="8">919> ID="9">1 569""(Source: Eurostat)

>

Table 6 Italian market "(in 1 000 tonnes)>

"> ID="1">1988> ID="2">734> ID="3">212> ID="4">64> ID="5">276> ID="6">181> ID="7">142> ID="8">323> ID="9">781"> ID="1">1989> ID="2">836> ID="3">254> ID="4">81> ID="5">335> ID="6">192> ID="7">115> ID="8">307> ID="9">808"> ID="1">1990> ID="2">926> ID="3">276> ID="4">60> ID="5">336> ID="6">206> ID="7">104> ID="8">310> ID="9">900""(Source: Eurostat)

>

Table 7 French market "(in 1 000 tonnes)>

"> ID="1">1988> ID="2">620> ID="3">148> ID="4">151> ID="5">299> ID="6">594> ID="7">60> ID="8">654> ID="9">973"> ID="1">1989> ID="2">568> ID="3">165> ID="4">144> ID="5">309> ID="6">645> ID="7">54> ID="8">699> ID="9">958"> ID="1">1990> ID="2">572> ID="3">179> ID="4">130> ID="5">309> ID="6">754> ID="7">39> ID="8">793> ID="9">1 056""(Source: Eurostat)

>

Table 8 Spanish market "(in 1 000 tonnes)>

"> ID="1">1988> ID="2">1 379> ID="3">348> ID="4">324> ID="5">672> ID="6">46> ID="7">9> ID="8">55> ID="9">762"> ID="1">1989> ID="2">1 380> ID="3">331> ID="4">265> ID="5">596> ID="6">70> ID="7">13> ID="8">83> ID="9">867"> ID="1">1990> ID="2">1 337> ID="3">341> ID="4">258> ID="5">599> ID="6">152> ID="7">34> ID="8">186> ID="9">924""(Source: Eurostat)

>

Table 9 Danish market "(in 1 000 tonnes)>

"> ID="1">1988> ID="2">-> ID="3">12> ID="4">1> ID="5">13> ID="6">31> ID="7">54> ID="8">85> ID="9">72"> ID="1">1989> ID="2">-> ID="3">2> ID="4">1> ID="5">3> ID="6">40> ID="7">41> ID="8">81> ID="9">78"> ID="1">1990> ID="2">-> ID="3">4> ID="4">3> ID="5">7> ID="6">52> ID="7">51> ID="8">103> ID="9">96""(Source: Eurostat)

>

Table 10 United Kingdom market "(in 1 000 tonnes)>

"> ID="1">1988> ID="2">1 721> ID="3">148> ID="4">472> ID="5">620> ID="6">234> ID="7">53> ID="8">287> ID="9">1 388"> ID="1">1989> ID="2">1 787> ID="3">229> ID="4">316> ID="5">545> ID="6">266> ID="7">43> ID="8">309> ID="9">1 551"> ID="1">1990> ID="2">1 770> ID="3">313> ID="4">490> ID="5">803> ID="6">217> ID="7">29> ID="8">246> ID="9">1 213""(Source: Eurostat)

>

D. THE UNDERTAKINGS AND ASSOCIATIONS OF UNDERTAKINGS CONCERNED

(10) The undertakings and associations of undertakings which took part in the infringements are the following:

1. Peine-Salzgitter AG

2. Thyssen Stahl AG

3. Saarstahl AG

4. Walzstahl-Vereinigung

5. TradeARBED SA

6. Cockerill Sambre SA

7. Unimétal, Société Française des Aciers Longs SA

8. British Steel plc

9. Empresa Nacional Siderurgica SA

10. José María Aristrain, Madrid SA and José María Aristrain SA

11. Ferdofin SpA

12. Acciaierie e Ferriere Stefana F.lli fu Girolamo SpA

13. Eurofer asbl

14. Hoesch Stahl AG

15. Neue Maxhuette Stahlwerke GmbH

16. Norsk Jernverk AS

17. SSAB - Svenskt Staal AB

18. Ovako Profiler AB

19. Smedjebacken/Fundia Steel AB.

This list is not the same as the list of addressees of this Decision.

E. INFORMATION ON THE UNDERTAKINGS AND ASSOCIATIONS OF UNDERTAKINGS CONCERNED

(11) GERMANY

(a) Stahlwerke Peine-Salzgitter AG, (hereinafter referred to as 'Peine-Salzgitter') is a public limited company with a share capital of DM 312 million. Nearly all (99,48 %) of its shares are held by Salzgitter Huettenwerk GmbH, a wholly-owned subsidiary of Salzgitter GmbH which itself is a wholly-owned subsidiary of Preussag AG. It is one of the major steel producers in Germany and had a consolidated turnover of DM 3 225 million in 1989/90. In 1990 its turnover in beams was [...] (2). In 1992 it changed its name to Preussag Stahl AG.

(b) Thyssen Stahl AG (hereinafter referred to as 'Thyssen' is a public limited company with a share capital of approximately DM 2 000 million. It is a wholly-owned subsidiary of Thyssen AG (formerly August Thyssen-Huette) and represents the main steel producing subisidiary of the Thyssen group. In 1989/90 it had a turnover of DM 8 241 million. In 1990 its sales of beams amounted to [...].

(c) Saarstahl AG (hereinafter referred to as 'Saarstahl') is the successor of Saarstahl Voelklingen GmbH. The latter company had been transformed, on 15 June 1989, into a public limited company called DHS-Dillinger Huette Saarstahl AG (hereinafter referred to as 'DHS').

Subsequently the core of the business of the former Saarstahl Voelklingen GmbH was transferred to a newly-formed company called Saarstahl AG which is a wholly-owned subsidiary of DHS. Saarstahl, a producer of long products, is thus in economic terms the successsor of Saarstahl Voelklingen GmbH and has agreed to accept all liabilities which Saarstahl Voelklingen GmbH may have incurred. The use of the expression 'Saarstahl' has therefore to be understood, in so far as the period prior to June 1989 is concerned, as a reference to Saarstahl Voelklingen GmbH.

The Usinor Sacilor Group held 70 % of the shares in DHS while 27,5 % was owned by the German Land of Saarland. The remaining 2,5 % was held by Arbed SA.

In 1989 Saarstahl had a turnover of DM 2 438 million of which beams represented [...]. On 18 may 1993 it was declared bankrupt and on 31 July 1993 it was placed under judicial administration.

(d) Hoesch Stahl AG(hereinafter referred to as 'Hoesch', Dortmund was a public limited company with a share capital of DM 210 million. All of its shares were owned by Hoesch AG which had a consolidated turnover of DM 10 679 million in 1989. In 1992 it merged with Krupp to form Krupp-Hoesch AG.

(e) Kloeckner Stahl GmbH (hereinafter referred to as 'Kloeckner') is a wholly-owned subsidiary of Kloeckner-Werk AG, the steel, plastics and engineering concern. In 1989/90 Kloeckner-Werke AG had a consolidated turnover of nearly DM 7 500 million. Its production of rolled steel products amounted to more than 3,6 million tonnes over the same period. In May 1993 Kloeckner Stahl GmbH entered 'Vergleich' proceedings and on 3 June 1993 reached an agreement with its creditors including the Commision (see recital 29).

(f) Neue Maxhuette Stahlwerke GmbH (hereinafter referred to as 'Neue Maxhuette') was founded in 1988 by the German Land of Bavaria (which at the relevant time held 45 % of the shares), Thyssen (5,5 %), Thyssen Edelstahlwerke AG (5,5 %), Lech-Stahlwerke GmbH (11 %), Krupp Stahl Ag (11 %), Kloeckner (11 %) and Mannesmannroehren-Werke AG (11 %). This company took over the main assets of Eisenwerk-Gesellschaft Maximilianshuette mbH which had been declared bankrupt on 16 April 1987. In 1991 its turnover was DM 226 million. The company is now known as NMH Stahlwerke GmbH.

(g) The Walzstahl-Vereinigung is an association of producers of rolled steel products in Germany but also has some members from abroad. It belongs to the Wirtschaftsvereinigung Stahl, the German association of steel producers.

(12) LUXEMBOURG

(a) SA TradeArbed (hereinafter referred to as 'TradeArbed') is a public limited company all of whose shares owned (directly or indirectly) by Arbed SA (hereinafter referred to as 'Arbed'). TradeArbed carries on the business of distributing Arbed's steel products. In 1990 Arbed had a consolidated turnover of Lfrs 208 760 million of which [. . .] were for beams.

In so far as beams and other long products are concerned Arbed has entered into cooperation and marketing arrangements with two of its competitors, Cockerill Sambre und Unimétal.

An agreement between Arbed and Cockerill Sambre providing for rationalization and specialization of the production of the parties in the field of both flat products and long products was authorized by the Commission on 28 May 1984 for a period of aproximately 10 years. Under the terms of the agreement Arbed was to specialize in long products while Cockerill Sambre was to focus on flat products. This agreement has been modified in 1989/90. As a consequence some of the beams marketed by TradeArbed are now rolled by Cockerill Sambre which itself has retired from that market.

On 14 July 1988 the Commission authorized, until the end of 1992, a specialization agreement between Arbed and Unimétal in the field of long products.

On 9 September 1991 the Commission authorized a joint-selling agreement for beams between Arbed and Usinor Sacilor (Decision 91/515/ECSC) (3).

On 23 July 1993 the Commission authorized the concentration of certain activities of Usinor Sacilor SA and Arbed, including the production and distribution of beams, within ProfilArbed SA, a subsidiary of Arbed.

(b) Eurofer asbl (hereinafter referred to as 'Eurofer'), the European Confederation of Iron and Steel Industries, is an association. Most of its members are associations of undertakings but there are also some undertakings (for example Det Danske Staalvalsevaerk AS and British Steel during the period covered by this Decision) which are themselves members of Eurofer.

(13) BELGIUM

SA Cockerill Sambre (hereinafter referrd to as 'Cockerill Sambre') is Belgium's principal steel producer. SA Steelinter (hereinafter referred to as 'Steelinter') is the main distributor of Cockerill Sambre which owns - directly or indirectly - all of its shares. In 1990, the Cockerill Sambre group had a turnover of Bfrs 203 billion. In 1989, the last year Cockerill Sambre produced beams, they accounted for [. . .] of sales.

(14) FRANCE

Unimétal, Société Française des Aciers Longs SA, (hereinafter referred to as 'Unimétal') is the most important producer of long products of the Usinor Sacilor group of which it is a wholly-owned subsidiary. In 1990 its turnover amounted to FF 6 896 million of which beams represented [. . .].

Usinor Sacilor SA, (hereinafter referred to as 'Usinor Sacilor') is a State-owned holding company which unites the majority of France's steel-producing companies. It was created by the merger of Usinor SA and Sacilor SA which was formalized on 18 November 1987. In fact the two companies had been concentrated already since 1982. This concentration had been authorized by the Commission on 2 April 1982.

Usinor Sacilor is the second-largest producer of steel in the world. In 1990 it had a consolidated turnover of FF 96 053 million.

(15) UNITED KINGDOM

British Steel plc (hereinafter referred to as 'British Steel') is the most important steel producer in the United Kingdom. It is the successor of British Steel Corporation which was privatized in 1988. In the business year ending on 31 March 1990 British Steel had a consolidated turnover of £ 5 113 million. In 1990, its sales of beams totalled [. . .].

(16) SPAIN

(a) Empresa Nacional Siderúrgica SA (hereinafter referred to as 'Ensidesa') is a major steel producer in Spain. The Instituto Nacional de Industria (a State-owned entity) owns 99,9997 % of its shares. The consolidated turnover of Ensidesa amounted to ECU 1 437 million in 1990, of which beams represented [. . .].

(b) José María Aristrain Madrid SA and José María Aristrain SA (hereinafter together referred to as 'Aristrain') are steel-producing companies belonging to the Aristrain group whose shares are held by members of the Aristrain family. In 1990, the group turnover was Pta 73 216 million of which [. . .] was for beams. José María Aristrain Madrid SA and José María Aristrain SA are now known as Siderúrgica Aristrain Madrid SL and Siderúrgica Aristrain Olaberria SL respectively.

(c) On 6 January 1993 the Commission authorized a specialization and joint selling agreement for beams between Aristrain and Ensidesa.

(17) ITALY

(a) Ferdofin SpA (hereinafter referred to as 'Ferdofin') is a holding company which specializes - through its subsidiaries - in long products. One of its subsidiaries is Eurocolfer Accial SpA; Ferdofin holds 99,99 % of the shares of this company. ILVA owns 20 % of the shares in Ferdofin. In 1990 Ferdofin had a consolidated turnover of Lit 773 000 million of which [. . .] was for beams.

(b) Acciaieria e Ferriere Stefana F.lli fu Girolamo SpA (hereinafter referred to as 'Stefana') is a producer of long products. Its 1990 turnover was Lit 215 194 million.

(18) SCANDINAVIA

(a) Fundia Norsk Jernverk AS (hereinafter referred to as 'Norsk Jernverk') came into being in 1989 when Norsk Jernverk AS was divided up into Fundia Norsk Jernverk AS and Norsk Jern Eiendom AS. Norsk Jernverk AS was a Norwegian public limited company with a share capital of Nkr 300 million. Total sales in 1990 amounted to Nkr 1 450 million (ECU 180 million). Norsk Jernverk is active on the ECSC market inter alia through subsidiaries in Germany and the United Kingdom. For the period prior to 1989, reference to 'Norsk Jernverk' has to be read as a reference to Norsk Jernverk AS.

(b) SSAB Svenskt Staal AB (hereinafter referred to as 'SSAB') was established in 1978. It is a Swedish public limited company with a share capital of SKr 2 650 million. In 1990 it had a consolidated turnover in steel of SKr 15 619 milion (ECU 2 094 million). In 1990 some 53 % of the undertaking's steel production was exported to countries outside Scandinavia. Sales companies are located in several Community countries.

On 1 September 1988 SSAB sold its structural steels business (including the production of beams) to Ovako. SSAB thus withdrew from the market for the production of beams.

(c) Ovako AB came into being in 1986 as the result of a merger between the two leading Scandinavian engineering steel companies, the Swedish SKF Steel and the Finnish Ovako. Ovako AB exports to the ECSC via wholly-owned subsidiaries located in several ECSC countries.

Ovako Profiler AB (hereinafter referred to as 'Ovako') was a wholly-owned subsidiary of Ovako AB incorporating the beams operation purchased from SSAB. It formed part of the Steel Division in the Ovako group. The turnover of the Ovako group amounted to SKr 6 006 million (ECU 805 million) in 1990. Sales by the steel division alone accounted for SKr 3 355 million (ECU 450 million) or 56 % of total turnover.

On 14 May, 1992, Inexa AB, a newly-formed company, acquired all shares in Ovako. Subsequently, Inexa AB arranged for Ovako to assign its business and all assets and liabilities to its subsidiary, Ovako Pretech AB, following which Inexa AB purchased from Ovako all of the outstanding shares in Ovako Pretech AB, the effect of which was that both Ovako and Ovako Pretech AB became direct subsidiaries of Inexa AB. Thereafter, Inexa AB sold all of its shares in Ovako to the community of Luleaa, which changed the name of Ovako to Svartoen Foervalnings AB. Subsequent to the transactions, Inexa AB arranged for Ovako Pretech AB to change its name to Inexa Profil AB.

(d) Fundia Steel AB, which is a 100 % subsidiary of Fundia AB, resulted from a merger between Smedjebacken-Boxholm Staal AB (hereinafter referred to as 'Smedjebacken') and the Swedish companies Halmstad Jaernwerk and Forsbacka, in 1988. Total sales of Fundia AB in 1990 were SKr 2 607 million (ECU 349 million), of which Fundia Steel AB accounted for SKr 1 360 million (ECU 182 million).

Fundia AB has sales offices in some Community countries which conduct the marketing of its products on these markets.

F. IMPORTANCE OF THE UNDERTAKINGS CONCERNED ON THE MARKET FOR BEAMS

(19) The following table shows the deliveries of the 10 most important companies concerned - British Steel, Aristrain (for which only the 1989 figures were available), TradeArbed, Peine-Salzgitter, Unimétal, Cockerill Sambre, Ferdofin, Ensidesa, Saarstahl and Thyssen - in the ECSC from 1986 to 1989. In 1989 for example the deliveries of these companies accounted for two-thirds of the apparent consumption of beams in the ECSC.

Table 11 Deliveries in the ECSC "(in tonnes)>

"> ID="1">Peine-

Salzgitter> ID="2">262 664> ID="3">301 288> ID="4">380 082> ID="5">440 455"> ID="1">Thyssen> ID="2">174 756> ID="3">150 940> ID="4">185 932> ID="5">192 430"> ID="1">Saarstahl> ID="2">123 792> ID="3">159 100> ID="4">225 140> ID="5">229 602"> ID="1">Unimétal> ID="2">387 628> ID="3">392 756> ID="4">460 068> ID="5">418 887"> ID="1">Ferdofin> ID="2">234 540> ID="3">291 104> ID="4">307 680> ID="5">350 420"> ID="1">Cockerill Sambre> ID="2">309 368> ID="3">296 092> ID="4">326 172> ID="5">353 830"> ID="1">Arbed> ID="2">408 248> ID="3">367 220> ID="4">464 576> ID="5">506 463"> ID="1">British Steel> ID="2">578 092> ID="3">730 284> ID="4">1 008 622> ID="5">1 189 287"> ID="1">Ensidesa> ID="2">209 744> ID="3">217 556> ID="4">233 204> ID="5">283 226"> ID="1">Aristrain> ID="2">(1)> ID="3">(2)> ID="4">(3)> ID="5">512 123"> ID="1">Total

(without Aristrain)> ID="2">2 688 832> ID="3">2 906 340> ID="4">3 591 476> ID="5">3 964 600"> ID="1">Total> ID="2">(4)> ID="3">(5)> ID="4">(6)> ID="5">4 476 723""(Source: Eurofer/Monitoring Poutrelles (Aristrain))

>

G. THE CRISIS IN THE STEEL INDUSTRY

(20) The European steel industry was affected by a drop in demand which created problems of excess supply and capacity and consequent low prices from the mid 1970s to 1988, with variations between different steel products.

(21) On 1 January 1977, the Commission adopted, on the basis of Article 46 of the ECSC Treaty, the so-called 'Simonet Plan' under which each company made unilateral voluntary commitments vis-à-vis the Commission to adjust its deliveries to the levels suggested by the Commission each quarter in its forward programme. This system proved insufficient to stabilize the market and thus in 1978 the 'First Davignon Plan' came into effect. This new regime complemented the unilateral voluntary commitments with indicative and minimum prices.

(22) Despite all these measures, the situation in the steel market continued to deteriorate and on 31 October 1980 the Commission adopted Decision No 2794/80/ECSC (4), by which a state of 'manifest crisis' was declared in accordance with Article 58 of the ECSC Treaty. By virtue of this Decision, mandatory production quotas were imposed by the Commission for most steel products including beams. These measures were extended by Decisions No 1831/81/ECSC (5), No 1696/82/ECSC (6), No 2177/83/ECSC (7), No 234/84/ECSC (8), No 3485/85/ECSC (9) and No 194/88/ECSC (10).

(23) This anti-crisis regime can be summarized as follows: the Commission fixed a general objective of Community production for each quarter for different product categories and each untertaking was allotted a compulsory production quota and a quota for deliveries within the Community market, known as its share of 'Big I', i. e. the Community market. The quotas were backed, between 1984 and 1986, by a system of minimum prices for beams and other products (11). The Commission also adopted Decision No 3483/82/ECSC (12) establishing a so-called 'surveillance system' by which each undertaking was obliged to declare its deliveries by country to the Commission.

(24) Originally, the Commission considered that the stability of traditional patterns of deliveries of steel products represented an essential factor which had to be preserved in order to allow the necessary restructuring of the steel industry to take place (see recital 5 of Decision No 234/84/ECSC). In its communication on steel policy in 1987 (13), the Commission declared, however, that it had arrived at the conclusion that the maintenance of the traditional patterns of deliveries was inconsistent with the establishment of the common market for steel.

(25) The anti-crisis regime came to an end, in so far as beams were concerned, on 30 June 1988. However, by Commission Decision No 2448/88/ECSC (14) the Commission introduced a monitoring system covering production and deliveries by producers into the Community and to third countries. Under this system, each company was required to declare its deliveries to the Commission. The system expired in 1990.

(26) In the period from the end of the anti-crisis regime until the end of 1990 producers of beams in the ECSC enjoyed very favourable market conditions. The market has deteriorated considerably since.

H. INSPECTIONS

(27) On 16, 17 and 18 January 1991 the Commission carried out inspections in the offices of seven undertakings and two associations of undertakings, namely British Steel, Peine-Salzgitter, Thyssen, Usinor Sacilor, Unimétal, Valor, TradeArbed, the Walzstahl-Vereinigung and the Centre Professionnel des Statistiques de l'Acier (CPS) (15). These inspections were based on individual decisions adopted by the Commission pursuant to Article 47 of the ECSC Treaty. Additional inspections were carried out on 5 March (CPS), 7 March (Ferdofin) and 25 March 1991 (Ferrosider SpA). Copies of a number of documents were taken by the inspectors of the Commission during these inspections.

(28) Further information was provided by some of the undertakings and associations concerned on the basis of requests made pursuant to Article 47 of the ECSC Treaty.

I. HEARING OF THE PARTIES

(29) The parties were offered the opportunity to present their cases at the hearing held in Brussels between 11 and 14 January 1993. The minutes of the hearing were circulated to the parties and their lawyers on 8 September 1993.

A copy of the Statement of Objections was also sent to Irish Steel Ltd, Nuova Sidercamuna Spa, Boliden Intertrade Srl, Aciers d'Usinor et Sacilor (Valor), CPS, Usinor Sacilor, Federazione Imprese Siderurgiche Italiane (Federacciai), Unesid, Jernkontoret, Kloeckner and ILVA Spa. In the light of the comments submitted by these parties, the Commission decided to terminate the proceedings against them for the following reasons:

- Irish Steel only attended one Eurofer/Scandinavia meeting on an Informal basis; there is no further evidence of the company's involvement,

- in the case of Nuova Sidercamuna Spa and Boliden Intertrade Srl the only evidence against them is a short report by the Italian representative of Peine-Salzgitter,

- Valor was not directly involved, see recital 38, point g,

- CPS and Usinor Sacilor were involved in administrative tasks, the behaviour of Usinor Sacilor is taken into account in the fines imposed on Unimétal;

- in the case of Federacial, Unesid and Jernkontoret, there is no proof of their direct involvement, only of a number of their members,

- Kloeckner does not produce beams as defined in recitals 3 and 4,

- it could not be substantiated that Mr Traverso was acting on behalf of ILVA.

J. DETAILED DESCRIPTION OF THE INFRINGEMENTS OF COMPETITION RULES

1. 'POUTRELLES COMMITTEE' AND RELATED ACTIVITIES

1.1. General

(30) The 'Poutrelles Committee' (also known under the French name 'Commission Poutrelles' and in the past sometimes referred to as 'Commission des Produits Longs' or 'Long Products Committee') is one of the so-called 'Product Committees' of Eurofer. Each of these committees is - as the name indicates - concerned with a particular product or group of products (e. g. beams, merchant bars or wire rod). The meetings of all of these committees are arranged by Eurofer which also provides logistical assistance (for example interpreters).

(31) Another Eurofer committee which has to be mentioned in this context is the so-called 'CDE'. This is the forum where the commercial directors of the Eurofer companies - that is to say, those companies which are members of Eurofer or which belong to associations which are members of Eurofer - meet to discuss the market. There are also regular meetings of the presidents and the vice-presidents respectively of these companies. On a more technical level this framework is complemented by meetings of experts.

(32) All of these committees were set up during the crisis in the steel industry (see Section G). The structure thus established assisted the Commission in its efforts to find solutions for the problems caused by the crisis. It also served as a forum for discussions between steel producers on general topics such as the level and impact of imports from third countries, possible market trends and schemes for the promotion of steel in third countries. None of these activities will be discussed here. This Decision is concerned only with those aspects of the cooperation between the parties concerned which went beyond what is permitted under the competition rules of the ECSC Treaty.

(33) The structure of and the participation in the Poutrelles Committee are outlined in a short note prepared by Mr Vygen of the Walzstahl-Vereinigung for Mr Everard of TradeArbed dated 4 October 1990 on the occasion of the latter's taking over the presidency of the Committee. According to this note Mr J. Meyer of Peine-Salzgitter had presided over the Committee since mid 1985. The secretariat of the Committee is said to have been in the hands of the Usinor Sacilor group for many years. At that time an employee of Usinor Sacilor (Mrs S.) served as secretary. The secretariat sent out invitations to the meetings, prepared the minutes which were sent to the members of the Poutrelles Committee and provided (on a routine basis or as required) certain documents. The documents supplied regularly comprised those concerning the 'Monitoring Poutrelles' (see below).

It further emerges that the Walzstahl-Vereinigung regularly provided its members with documents (minutes of meetings, statistics and price information) before meetings of the Poutrelles Committee.

(34) The note indicates that the individual groups were usually represented at the meetings by the following:

"" ID="1">Luxembourg (Belgium): > ID="2">H. Becker (TradeArbed)"> ID="1" ASSV="2">France: > ID="2">G. (Unimétal)

Mrs. S. (Secretariat)"> ID="1">United Kingdom: > ID="2">Cooper, Legge, Mrs Ross (British Steel)"> ID="1" ASSV="2">Italy: > ID="2">Dr. Arnuzzo (Ferdofin)

Dr. Masserdotti (Ferrosider)"> ID="1" ASSV="3">Spain: > ID="2">Alvarez (Ensidesa)

Naegele (Aristrain)

Izquierdo (Unesid)"> ID="1" ASSV="4">Germany: > ID="2">Engel, Knuefermann (Thyssen)

Dr. v. Engelhardt, Schuh (Saarstahl)

Kroell, Mette (Peine-Salzgitter)

Vygen (Walzstahl-Vereinigung)">

The note explains that Mr Masserdotti normally speaks on behalf of the small Italian producers.

(35) Although the Poutrelles Committee is a Eurofer committee some of the undertakings or associations of undertakings taking part in the meetings are not (or were not) members (directly or indirectly) of Eurofer.

(36) Meetings of the Poutrelles Committee were held very frequently. In 1989 and 1990 for example the Committee was convened nine and seven times respectively. In a letter dated 5 October 1990 Eurofer informed its members and other parties that for 1991 a 'two-month-rhythm' was envisaged for beams meetings.

The Commission has knowledge of the following meetings of the Poutrelles Committee:

"" ID="1">7 April 1987 > ID="2">Duesseldorf"> ID="1">19 May 1987 > ID="2">Stresa"> ID="1">28 October 1987 > ID="2">Paris"> ID="1">25 November 1987 > ID="2">Duesseldorf"> ID="1">3 May 1988 > ID="2">Madrid"> ID="1">19 July 1988 > ID="2">Paris"> ID="1">18 October 1988 > ID="2">Duesseldorf"> ID="1">15 November 1988 > ID="2">Bruxelles"> ID="1">13 December 1988 > ID="2">Paris"> ID="1">10 January 1989 > ID="2">Duesseldorf"> ID="1">7 February 1989 > ID="2">Paris"> ID="1">19 April 1989 > ID="2">Paris"> ID="1">6 June 1989 > ID="2">Paris"> ID="1">11 July 1989 > ID="2">Paris"> ID="1">3 August 1989 > ID="2">Duesseldorf"> ID="1">21 September 1989 > ID="2">Taormina"> ID="1">7 November 1989 > ID="2">Teesside"> ID="1">12 December 1989 > ID="2">Duesseldorf"> ID="1">14 February 1990 > ID="2">Berlin"> ID="1">21 March 1990 > ID="2">Duesseldorf"> ID="1">16 May 1990 > ID="2">Milano"> ID="1">10 July 1990 > ID="2">Duesseldorf"> ID="1">11 September 1990 > ID="2">Luxembourg"> ID="1">9 October 1990 > ID="2">Madrid"> ID="1">4 December 1990 > ID="2">Bruxelles.">

(37) For some of the meetings of the Poutrelles Committee the Commission has discovered two sets of minutes the contents of which vary slightly. This appears to be due to the fact that the French secretariat which prepared these minutes submitted the draft minutes to the chairman of the Poutrelles Committee for approval (and to Eurofer for its comments) while at the same time sending a copy to the Walzstahl-Vereinigung for translation into German. The evidence suggests that the Walzstahl-Vereinigung sometimes circulated its translation of these draft minutes before they had been approved by the chairman of the Poutrelles Committee.

The final version of the minutes is usually more circumspect. This may have to do with a meeting of the secretariats of Eurofer's product committees which was convened on 23 November 1988. The following is one of the two items on the agenda for the meeting: 'Review of the way of drafting minutes'.

1.2. Participation of the companies and associations concerned

(38) Mr Vygen's note, referred to in recital 33, shows that the companies or persons mentioned therein regularly participated in the meetings of the Poutrelles Committee. In the course of the proceedings the undertakings and associations concerned provided the following more specific information:

(a) Peine-Salzgitter confirmed that it had attended all the meetings listed above;

(b) The Walzstahl-Vereinigung informed the Commission that it had participated in all the meetings listed above apart from the one on 3 May 1988;

(c) British Steel confirmed that it had attended all the meetings listed above apart from those on 10 January and 6 June 1989. The evidence (a list of participants and a British Steel memo on the results of that meeting) shows, however, that British Steel also attended the meeting on 10 January 1989;

(d) Arbed informed the Commission that its subsidiary TradeArbed had in principle attended all the meetings listed above;

(e) Ensidesa confirmed that it had attended, through its subsidiary Infisa GmbH (a trading company incorporated in Germany), all the meetings listed above apart from those on 21 September and 7 November 1989;

(f) Thyssen confirmed that it had attended all the meetings listed above in the period from 25 November 1987, apart from the meeting on 7 November 1989;

(g) Unimétal informed the Commission that it had been represented at all the meetings listed above until the end of 1989. The person who had represented Unimétal at these meetings moved to Aciers d'Usinor et Sacilor (Valor) (16) at the beginning of 1990. Valor initially confirmed that these meetings were attended by Valor from the beginning of 1990. However, the evidence shows that the person concerned continued to act for Unimétal (see for example an undated note from Unimétal to the secretariat of the Poutrelles Committee which was written on or before 18 May 1990 and notes that Unimétal had not been able to attend the last meeting of the Committee, clearly implying that Unimétal normally still attended these meetings). This was confirmed by Unimétal at the oral hearing;

(h) Saarstahl confirmed that it had attended the meetings on 19 May 1987, 3 May, 18 October, 15 November and 13 December 1988, all the meetings held in 1989 and the meetings on 14 February, 16 May, 11 September and 4 December 1990. The evidence (a note on the meeting prepared by Peine-Salzgitter) shows that it had also been present at the meeting on 25 November 1987;

(i) Cockerill Sambre and Steelinter told the Commission that they had attended the meetings on 19 July, 18 October and 15 November 1988, 10 January, 7 February and 3 August 1989 and probably also the meeting on 6 June 1989. The evidence shows that Cockerill Sambre had also been present on 11 July 1989 (see the minutes of the meeting);

(j) Ferdofin confirmed that it had attended some of the meetings although it could not specify the dates. The evidence shows, however, that Ferdofin attended these meetings on a regular basis at least since 1987. This is confirmed by the note on the Poutrelles Committee drawn up by the Walzstahl-Vereinigung (see recital 33). With reference to some of the meetings listed above, Ferdofin claimed, in its reply to the Statement of Objections, that the Commission had not proved Ferdofin's participation. However, the minutes of the meeting on 19 April 1989, the list of participants of the meeting on 14 February 1990 and correspondence concerning the meeting on 7 February 1989 (draft letter from Ferdofin to Mr Meyer and Mr Meyer's reply dated 29 March 1989) show that Ferdofin had attended these meetings;

(k) Aristrain confirmed that it attended all the meetings in 1989 and 1990 apart from those on 21 September and 12 December 1989, 21 March, 10 July and 4 December 1990. However, the reference to 'a Spanish mill' in the minutes of the meeting on 21 September 1989 (where Ensidesa was not represented) shows that Aristrain attended this meeting. It may be inferred from the note of the Walzstahl-Vereinigung on the Poutrelles Committee together with the note of Peine-Salzgitter on the meeting on 25 November 1987 that Aristrain attended these meetings regularly at least from 1987 onwards.

1.3. Monitoring

1.1.3. Monitoring of orders until mid 1990

(39) A monitoring system under which the participating companies informed each other on a regular basis about the orders they had received for delivery in a specific quarter has been in operation at least since the third quarter of 1984. British Steel, Peine-Salzgitter, TradeArbed, Thyssen, Cockerill Sambre and Unimétal took part in this system from a very early stage, at least since 1987. This emerges from an internal memo of Peine-Salzgitter dated 24 November 1987 and a table prepared by Peine-Salzgitter dated 5 December 1989 (see Annex I, No 16).

Ferdofin participated since the second quarter of 1987 and Saarstahl began to supply its figures in the second quarter of 1988. This is confirmed by an internal memo of Peine-Salzgitter dated 9 November 1987 and a document found at Peine-Salzgitter which bears the inscription 'Marktentwicklung' and, in manuscript, 'Buchungsmonitoring' dated 9 December 1988.

Ensidesa and Aristrain took part in the system from the beginning of 1989. Initially they provided their figures on a monthly basis only. In its reply to the Statement of Objections, Aristrain claimed that it had only provided figures on deliveries but not on orders. This is contradicted by the documents discovered by the Commission (see, for example, the minutes of the meeting on 10 January 1989 and the monitoring tables distributed by the secretariat on 1 March 1990, Annex I, No 13).

Neue Maxhuette and Hoesch participated at least since the first quarter of 1988 and the first quarter of 1989 respectively.

In the first quarter of 1990, Federaccial (Federazione Imprese Siderurgiche Italiane - an Italian association of steel producers and distributors) began to supply aggregate figures for Italian steel producers other than Ferdofin.

Cockerill Sambre ceased to participate towards the end of 1989.

(40) The figures which were provided and exchanged show (with the exception of the Federaccial figures) the orders which each individual company had received for delivery in France, Germany, Belgium/Luxembourg, the Netherlands, the United Kingdom, Italy, Spain, Portugal and Greece/Ireland/Denmark.

At least since the beginning of 1989 these figures were collected and distributed among the participants by Usinor Sacilor on a weekly basis.

For the years 1989 and 1990 the Commission discovered a considerable number of documents illustrating the functioning of the monitoring system. These documents are listed in Annex I.

1.3.2.Monitoring of deliveries until mid 1990

(41) A monitoring of deliveries was introduced in 1988 at the request of the French group (see the minutes of the meeting of the Poutrelles Committee on 18 October 1988). Peine-Salzgitter, Thyssen, Saarstahl, TradeArbed, Cockerill Sambre, Unimétal, British Steel, Ferdofin, Ensidesa, Aristrain, Neue Maxhuette and Hoesch exchanged information on their deliveries to markets in the ECSC on a quarterly basis from early 1989 onwards, beginning with the figures for deliveries in the fourth quarter of 1988. Cockerill Sambre stopped participating early in 1990 after having withdrawn from the market.

(42) Individual figures were exchanged for the following markets: the ECSC as a whole, Germany, France, the United Kingdom, the Benelux area, Italy, Greece/Ireland/Denmark, Portugal and Spain. These figures were distributed a month or two after the end of the relevant quarter. Since late 1989 Federaccial provided aggregate figures for the deliveries of Italian producers other than Ferdofin.

The most important documents concerning the monitoring of deliveries are also listed in Annex I.

1.3.3.Monitoring after mid 1990

(43) On 18 July 1990 the Commission adopted, pursuant to Article 65 of the ECSC Treaty, Decision 90/417/ECSC (17) concerning an agreement and concerted practices engaged in by European producers of cold-rolled stainless steel flat products, in which the Commission ruled that a number of undertakings had infringed Article 65 (1) of the ECSC Treaty and imposed fines on some of these undertakings.

(44) On 30 July 1990 Eurofer addressed a letter headed 'Statistics exchange and circulation' among others to the chairman and the secretariat of the Poutrelles Committee. The relevant parts of this letter read as follows (18):

'The decision recently made by the Commission in the matter of stainless flat products and some contacts taken by DG IV with the general management of Eurofer, have drawn attention to the statistics exchange or circulation made by our office or by the committee secretariats and to their compatibility with Article 65 of the ECSC Treaty.

While waiting for a thorough examination from the legal point of view, we decided to suspend any circulation which discloses individual figures for production, delivery or orders and we ask you to kindly abstain from any similar exchange or circulation in the framework of your Committee.

Of course, this request does not affect the collection of individual figures by one neutral centre, namely the Eurofer office, and the circulation of aggregate results, without mention of individual elements, as we usually do. Such statistics are perfectly legal because they obviously aim at giving a global information on the economic and market development. They will be maintained as before by us and you may proceed in the same way.'

The Poutrelles Committee complied with Eurofer's request of 30 July 1990. However, the (individual) figures for deliveries in the second quarter of 1990 of all companies concerned apart from British Steel were still distributed.

From August 1990 onwards, British Steel refused to provide information on its orders and deliveries.

(45) An internal memo of British Steel dated 19 November 1990 shows that the distribution of individual data was soon resumed though without British Steel:

'Following discussions held by the presidents, the Eurofer administration decided to recommence distributing delivery and production figures by company (having earlier limited distribution to aggregate all company totals only).

It is clearly understood that British Steel is still not providing figures to Eurofer, so it has been equally clearly stated that British Steel will not receive the figures of other companies.'

The evidence shows that this decision applied not only to Eurofer but also to Eurofer's product committees.

(46) The Commission discovered tables dated 3 December 1990 (see Annex I, No 26) which contain individual figures for deliveries in the third quarter of 1990 and for orders for delivery in the same quarter for TradeArbed, Unimétal, Ensidesa, Aristrain and Ferdofin (orders only). The documents show that the exchange of individual information must have been resumed - between TradeArbed, Ensidesa, Unimétal, Ferdofin and Aristrain - in October 1990 at the latest. Individual data on orders for delivery by Thyssen, Saarstahl, Peine-Salzgitter, Neue Maxhuette and Hoesch were sent to the secretariat and circulated by the Walzstahl-Vereinigung in December 1990 and January 1991 (see Annex I, No 28).

1.3.4.Exchange of information through the Walzstahl-Vereinigung

(47) The monitoring organized by the secretariat of the Poutrelles Committee was supplemented by an exchange of information through the Walzstahl-Vereinigung.

(48) The Commission is in possession of a folder prepared by the Walzstahl-Vereinigung with a view to the meeting of the Poutrelles Committee on 9 October 1990. Amongst other documents, this folder contains tables dated 1 October 1990 setting out the deliveries and orders for deliveries of Thyssen, Peine-Salzgitter, Hoesch, Neue Maxhuette, Saarstahl and TradeArbed.

Deliveries are shown per month from January 1990 until and including July 1990. As to orders for delivery in the third quarter of 1990, the tables list the figures for each company on a weekly basis beginning with the position on 2 June 1990 and ending with the position on 22 September 1990. Similarly, orders for delivery in the fourth quarter of 1990 are shown as at 1 September, 8 September, 15 September and 22 September 1990. As the monitoring tables prepared by the French secretariat in the relevant period only show aggregate figures and not individual figures for each company, it follows that these tables form part of the up-to-date statistics which the Walzstahl-Vereinigung supplied to its members, according to the memo from Mr Vygen to Mr Everard dated 4 October 1990 (recital 33). This is confirmed by the cover note to this memo which shows that the Walzstahl-Vereinigung had sent a copy of the folder to TradeArbed on 2 October 1990.

The Commission has found a similar set of documents prepared by the Walzstahl-Vereinigung for the meeting of the Poutrelles Committee on 4 December 1990.

1.3.5.Purpose and effect of the exchange of information

(49) The importance and the use of the figures exchanged under the monitoring system are illustrated by several documents.

(50) At the meeting on 6 June 1989, the German producers complained about the high level of Spanish exports to Germany. The Spanish producers promised to stagger their deliveries in the future.

(51) At the meeting on 11 July 1989 Unimétal pointed out that, according to the monitoring figures, the Eurofer companies other than Ensidesa had reduced their deliveries to France by 25 % whilst deliveries by the Spaniards had increased. The minutes note laconically:

'It was hoped that there would be a certain degree of moderation in the future.'

It was also pointed out that in the second quarter of 1989 orders for delivery on the market of Belgium/Luxembourg had - contrary to the situation on the other Community markets - exceeded orders for delivery in the first quarter of 1989. It was considered that this fact

'through Belgian steel merchants, risked disturbing neighbouring markets.'

Cockerill Sambre defended itself by claiming that its deliveries went to its subsidiary (Steelinter) whose stocks were very low.

The minutes also note that an exchange of opinions concerning imports from Spain took place:

'The level of imports from Spain remained high. Ensidesa stated that it had not increased its usual volume.'

(52) The copy of the minutes of the meeting on 21 September 1989 which the Commission found at Thyssen - a German translation of the French minutes - indicates that TradeArbed had been blamed for disturbing the market in France:

'The Luxembourg mill also denied any disruptive behaviour in France since it had been out of the market for five weeks.'

(53) The French version of the minutes of the meeting on 12 December 1989 refers to an exchange of views on trade between the United Kingdom and Germany/France. The German version is much more explicit:

'However, the German and French mills spoke of a certain "aggressiveness" on the part of the British mill on their domestic markets, which was borne out by the Poutrelles Committee statistics. The British mill explained that it was restricting itself to the tonnages which it normally delivered to these markets, and that its returns for the Poutrelles Committee statistics included process work. However, it pointed out that since January 1989, 21 000 tonnes had been delivered from Germany to the United Kindom.'

(54) An internal briefing note dated 19 March and prepared for Mr Meyer (Peine-Salzgitter) reveals that a controversy had arisen at the meeting of the Poutrelles Committee on 14 February 1990:

'It was agreed in Berlin that serious discrepancies between order-book monitoring and actual deliveries would have to be explained. There was a difference of opinion on this point between Ferdofin and Saarstahl.'

(55) A table which was sent to British Steel by Peine-Salzgitter at the beginning of March 1990 sets out, for the last two quarters of 1988 and for each quarter in 1989, deliveries from the United Kingdom to Germany and deliveries by Peine-Salzgitter, Thyssen and Saarstahl to the United Kingdom. Two further columns show the 'surplus' of the United Kingdom and Germany respectively, that is to say the difference between deliveries to Germany by the British producer and deliveries to the United Kingdom by the German producers. The copy of this table found at British Steel carried a manuscript message from Peine-Salzgitter which declared that

'according to these figures there is - I fear - no backlog due to British Steel plc!'

The German version of the minutes of the meeting on 21 March 1990 indicates that the Spanish producers considered the exports of British Steel and TradeArbed to Spain as being too high.

(56) A letter dated 10 May 1990 from Peine-Salzgitter to TradeArbed shows that TradeArbed had accused Peine-Salzgitter of manipulating its figures for deliveries to the Netherlands in the first quarter of 1990. In its reply Peine-Salzgitter tried to explain the differences.

(57) A report on the results of the meeting on 16 May 1990 (prepared by the Walzstahl-Vereinigung) notes:

'A central theme was, as always, inter-penetration deliveries which cause considerable market disturbance. Responsible behaviour here would help to reduce these disturbances.'

A note on the results of this meeting dated 18 May 1990 which was prepared by the secretariat of the Poutrelles Committee and sent to Unimétal confirms this:

'Market inter-penetration was reported. Everyone wants to return to traditional delivery flows.'

(58) Deliveries were again discussed at the meeting on 10 July 1990. An internal British Steel memo dated 20 July 1990 notes:

'There was a concerted attack of BS sales in northern Europe by the French and Germans (Arbed were quiet) who suggested that our increased sales in these markets had only been accomplished by "buying" market share. There were some veiled threats from Mette of Peine that there would be a reaction from Peine in the United Kingdom if there was not some reduction in the 10 kt or so from BS to Germany every quarter.'

(59) An internal briefing note dated 10 September 1990 prepared by Peine-Salzgitter for Mr Meyer with a view to the next meeting of the Poutrelles Committee on 11 September 1990 reveals that the object of the monitoring system was to allow the participants to ascertain the behaviour of their competitors on the market:

'An exchange of only aggregated figures is (almost) useless for our purposes (opinion expressed by the German-Luxembourg group on 30 August 1990) because the market behaviour of individual suppliers can no longer be traced. Only once official customs statistics are available, which experience shows does not occur until a few months later, is it possible to individualize figures, and then only in the case of countries with just one producer.'

It also shows that the parties were aware of the competition law aspects of this system:

'A system of mutual exchange of statistics which extends to the backflow of individualized company data to competitors is at least suggestive of effects which restrict competition.'

(60) At the meeting on 4 December 1990 TradeArbed (referred to as the 'representative from Luxembourg' in the minutes) pointed out that the increase in market share of Ferdofin - and other companies - was worrying other producers.

A TradeArbed memo dated 3 December 1990 (which reflects the text of the speech which the representative of TradeArbed was to give at the meeting on 4 December 1990) reveals that TradeArbed would - if necessary - take measures to remedy this situation:

'However, I would point out that we can no longer sit back and watch as certain mills have considerably increased their tonnages this year, especially in Belgium, our home market, i.e. (. . .).'

1.4. Market-sharing arrangements and 'Traverso-methodology'

1.4.1. Ferdofin

(61) The minutes of the meeting of the Poutrelles Committee on 19 July 1988 (an excerpt of which is in the possession of the Commission) list the market estimates for the fourth quarter of 1988 adopted by the CDE on 14 July 1988. The following are the figures for Germany:

'Germany 189 000 tonnes/quarter

Of which Eurofer 159 000 tonnes/quarter

Ferdofin 30 000 tonnes/quarter.'

Corresponding figures (for Eurofer and Ferdofin respectively) are given for the Benelux area, France and Denmark/Ireland/Greece.

(62) If the only purpose of the market estimates had been to assess the size of the future markets it would obviously not have been necessary to show separate figures for Ferdofin. It must therefore be assumed that it was intended to fix quotas for deliveries by Ferdofin to the abovementioned markets. Ferdofin claims that these figures had been suggested by its competitors without Ferdofin's involvement. The fact that Ferdofin did nevertheless in fact agree to comply with quotas (although these may have been different from the figures in the abovementioned minutes) is however confirmed by a telex which Ferdofin sent to Peine-Salzgitter on 4 August 1988:

'We would draw your attention to the fact that Ferdofin has accepted a limitation of sales in the Federal Republic of Germany, France and Benelux on the basis of the old quotas.'

1.4.2. France

(63) On 13 September 1989 representatives of Peine Salzgitter, Thyssen, Saarstahl, British Steel, Unimétal, TradeArbed, Cockerill Sambre/Steelinter met in the offices of the Walzstahl-Vereinigung.

The discussions at this meeting focused on the question of deliveries of beams to the French market in the fourth quarter of 1989.

At Peine-Salzgitter the Commission discovered a document drawn up by the Walzstahl-Vereinigung. The second page of this document bears the heading 'French market - beams - fourth quarter 1989'. The document notes that the market estimate for France in the fourth quarter of 1989 amounted to 75 000 tonnes/month and that 60 000 tonnes/month would be supplied by Eurofer companies. Of this figure 27 000 tonnes/month are deducted for Unimétal and 375 tonnes/month and 750 tonnes/month for Kloeckner and Ensidesa respectively. The remaining 31 875 tonnes/month for Kloeckner and Ensidesa respectively. The remaining 31 875 tonnes/month are then divided on the basis of two percentages relating to deliveries in the past (see page 1 of the document):

'

"" ID="1">P+S

11,6/11,4 % > ID="2">3 698/3 634 tonnes/month"> ID="1">Thyssen

2,0/2,1 % > ID="2">638/669 tonnes/month"> ID="1">Saarstahl

14,3/13,9 % > ID="2">4 558/4 431 tonnes/month"> ID="1">Ferdofin

16,8/17,4 % > ID="2">5 355/5 546 tonnes/month"> ID="1">Cockerill Sambre

21,4/20,5 % > ID="2">6 821/6 534 tonnes/month"> ID="1">Arbed

28,4/28,8 % > ID="2">9 052/9 180 tonnes/month"> ID="1">BSC

5,5/ 5,9 % > ID="2">1 753/1 881 tonnes/month.">

'

The third page of this document is labelled 'Alternative G.'. Here a further 7 000 tonnes/month for what are called 'indirect deliveries' are deducted from the 31 875 tonnes/month referred to above. The remaining 24 875 tonnes/month are then divided among the seven companies in the same way as in the table shown above.

The manuscript note of Peine-Salzgitter accompanying these documents mentions that the last-mentioned alternative owes its origin to an intervention by Mr G. (Unimétal).

(64) An internal memo dated 19 September 1989 prepared by Peine-Salzgitter confirms that the Eurofer companies endeavoured to find a marketsharing arrangement for deliveries to the French market:

'Plan for France

The basis for the allocation to Eurofer suppliers is the paper compiled by WAV for the last 12 or 18 months. Peine-Salzgitter agrees with the percentage. However, the basis must be 33 000 tonnes/month.'

(65) According to the minutes of the meeting of the Poutrelles Committee on 21 September 1989, Unimétal pointed out that for the fourth quarter of 1989 it considered a market estimate of 75 000 tonnes /month to be realistic and then specified the tonnages as follows:

'During this quarter the French mill intends to deliver 27 000 tonnes/month. It believed that the tonnages of Community companies outside Eurofer would be around 10 000 tonnes/month. Non-member country penetration remains reasonable and should stay at about 5 000 tonnes/month.'

(66) A short note on the results of this meeting dated 25 September 1989 which was prepared by the Walzstahl-Vereinigung shows that a compromise had been found:

'An adapted delivery behaviour on the French market in the fourth quarter of 1989 should contribute to a rapid resolution of tonnage problems here as well. Both Eurofer companies and other mills had notified plans to reduce deliveries.'

(67) This is confirmed by a telex dated 26 September 1989 which the Walzstahl-Vereinigung sent to Peine-Salzgitter, Thyssen, Saarstahl, Ferdofin, TradeArbed, British Steel, Ensidesa and Unimétal:

'Beams deliveries in the fourth quarter of 1989 (French market)

The survey carried out as part of the delivery monitoring showed that the following deliveries to the French market were expected for the fourth quarter of 1989 (approximate tonnages):

"" ID="1">P+S > ID="2"> 9 950 tonnes/quarter"> ID="1">Thyssen > ID="2"> 1 800 tonnes/quarter"> ID="1">Saarstahl > ID="2">12 200 tonnes/quarter"> ID="1">Ferdofin > ID="2">14 800 tonnes/quarter"> ID="1">Cockerill-Sambre > ID="2">18 100 tonnes/quarter"> ID="1">Arbed > ID="2">24 750 tonnes/quarter"> ID="1">BSC > ID="2"> 4 950 tonnes/quarter"> ID="1">Ensidesa > ID="2"> 2 250 tonnes/quarter"> ID="1">Unimétal > ID="2">72 000 tonnes/quarter">

.'

(68) A short account of the results of the meeting of the Poutrelles Committee on 7 November 1989 which was prepared by the secretariat and faxed to the Walzstahl-Vereinigung on 10 November 1989 confirms the existence of an understanding with regard to deliveries to the French market in the fourth quarter of 1989:

'Desire that the "system of deliveries for the French market in the fourth quarter of 1989" should be extended to the first quarter of 1990 and to all ECSC markets.'

(69) The monitoring of deliveries in the fourth quarter of 1989 shows that only three companies delivered substantially more than envisaged on the French market:

"" ID="1">Thyssen > ID="2"> 4 164 tonnes"> ID="1">Ferdofin > ID="2">18 347 tonnes"> ID="1">British Steel > ID="2">11 623 tonnes.">

(70) Ensidesa did not attend the meetings on 13 and 21 September 1989. Even if the figure of 750 tonnes/month for Ensidesa's deliveries to France may originally have been set by the other companies without Ensidesa's approval as it claims, the fact remains that Ensidesa was informed of this figure and kept to it (its actual deliveries amounted to 2 317 tonnes, that is to say somewhat more than 770 tonnes/month.

(71) The minutes of the meeting on 7 November 1989 indicate that the concerted efforts to reduce deliveries to the French market were regarded as successful and that Unimétal hoped that they would continue.

1.4.3. 'Traverso methodology'

(72) The minutes of the meeting of the Poutrelles Committee on 19 July 1988 describe a system matching supply and demand which had been set up:

'The companies should make their sales intentions known to Eurofer, which will assess them as a whole in the light of the market estimates established by the CDE. Should it emerge that some of these intentions diverge significantly from past figures, the chairman of the CDE and the Eurofer administration will contact the company in question to ask it to pursue a policy that is more conducive to the necessary equilibrium.'.

(73) The president of the CDE at that time and for the rest of the period under consideration (i.e. until the end of 1990) was Mr Traverso, a manager of Nuova Italsider SpA and later of ILVA (both Italian steel producers).

(74) The system outlined in the minutes of the meeting on 19 July was usually referred to as the 'Traverso-method' or 'Traverso-methodology' (see, for example, an internal memo of British Steel dated 11 January 1990).

The first document which sheds some light on the way in which the system worked is a fax (No 1017) on the subject of delivery intentions for the fourth quarter of 1988 from Eurofer to Arbed/TradeArbed, British Steel, Cockerill Sambre, Usinor Sacilor, Ferdofin, Kloeckner (see recital 29), Peine-Salzgitter, Saarstahl, Thyssen and others. The copy in the possession of the Commission was found at Peine-Salzgitter where it had been received on 4 August 1988. The fax refers to a 'table showing the final delivery intentions collected at the end of the last CDE meeting of 27 and 28 July 1988 in Paris' and continues:

'Our chairman expects all the companies not to exceed these delivery intentions which are related to the price stability.'

(75) The Commission found at Peine-Salzgitter an (undated) internal memo of Peine-Salzgitter which compares the delivery intentions for the fourth quarter of 1988 with actual deliveries. Attached to this note written in German is a table in English with the heading 'Category III . . . (illegible) Delivery intentions'. It is not disputed that this is the table referred to in Eurofer's fax. The delivery intentions shown in the table are those for Peine-Salzgitter, Thyssen, Kloeckner (see recital 29), Saarstahl, Usinor Sacilor (Unimétal), Ferdofin, Cockerill Sambre, TradeArbed and British Steel.

It emerges that the actual deliveries of all the companies except Kloeckner exceeded the delivery intentions they had previously announced. The difference between these two figures is rather moderate for Peine-Salzgitter, Cockerill Sambre and Saarstahl while it is quite considerable for the others (in particular for British Steel).

(76) This would seem to imply that the system was not functioning very effectively. The main reason for this seems to have been that the system did not apparently provide for any penalties for companies whose deliveries exceeded the orders they had previously reported to Mr Traverso or the tonnages suggested by him.

(77) The voluntary character of this system is confirmed by a telex from Unimétal to British Steel of 28 November 1988 and British Steel's reply of 6 December 1988. This correspondence also demonstrates, however, that the participating companies nevertheless attached considerable weight to this system. It shows that, at least in principle, the companies concerned considered the tonnages suggested by the chairman of the CDE as figures to be respected. Companies which disregarded these suggestions had to expect that the other participants would resort to retaliatory measures on their own markets.

(78) The system was discontinued in early 1989. It was resumed in early 1990 (in respect of deliveries in the first quarter of 1990). This was confirmed by British Steel and is evidenced by a British Steel briefing note dated 20 July 1990 and the fact that on 31 January 1990 Peine-Salzgitter sent a letter to the president of the CDE setting out its delivery intentions for the first and second quarters of 1990.

(79) It would appear, however, that on the whole this system of matching supply and demand neither worked particularly well nor lasted for long.

An undated file note of British Steel which summarizes the results of the meeting of the Poutrelles Committee on 21 March 1990 reports the following remark of Mr G. (Unimétal) concerning the French market:

'G. mentioned his understanding that the Traverso procedure had broken down due to some producers 'sticking'.

1.5. Price-fixing arrangements

1.5.1. Target prices

(80) The minutes of the Eurofer/Scandinavia meeting on 30 July 1986 note with respect to the market for beams in the Community:

'Eurofer mills make efforts to stabilize prices and to defend imports. Decisions especially concerning prices will be taken in a meeting within a few days.'

(81) Attached to the copy of these minutes which the Commission discovered at the Walzstahl-Vereinigung was a document which sets out the 'prices for quarter 4/86' for the Scandinavian markets. With regard to beams on the Danish market the following is noted:

'Information is given after new price fixing in EEC countries.'

Similar references are to be found in the minutes of other Eurofer/Scandinavia meetings.

(82) In a fax sent to the CPS on 27 March 1987 the Walzstahl-Vereinigung explained that the chairman of the Poutrelles Committee was desirous to proceed with the discussion of two particular subjects before the next meeting on 7 April 1987. One of these topics was the harmonization of prices in the ECSC:

'The achievement of comparable price levels in the EC, and in particular, how quickly French prices can be increased to levels that broadly match those in neighbouring countries (certain differentials may be tolerated provided they are not disruptive).'

(83) The next meeting was held on 3 June 1987. An internal briefing note dated 2 June 1987 prepared by Peine-Salzgitter for the chairman of the Poutrelles Committee indicates:

'The short-term objective of the meeting on 3 June should however be to set binding prices for beams for the third quarter of 1987.'

(84) A decision on prices for the third quarter of 1987 was indeed adopted at this or one of the next meetings. This emerges from the minutes of the Eurofer/Scandinavia meeting on 4 August 1987 which note with regard to the market for beams in the ECSC that the prices planned for the third quarter of 1987 had been achieved.

(85) The Poutrelles Committee subsequently decided to adopt price increases for sales in the fourth quarter of 1987. This is revealed by an internal memo of Peine-Salzgitter dated 9 November 1987:

'With a view to further consolidation or implementation of the price increases introduced 1 October 1987, it was agreed at the meeting of the Poutrelles Committee in Paris on 28 October 1987 not to increase prices again on 1 January 1988. However, this must be seen in the context of the suggestion that prices will be increased in any event on 1 April 1988. There must be a timely exchange of views on the scope and size of that increase'.

(86) This account is confirmed - in so far as the German market is concerned at least - by the minutes of the Eurofer/Scandinavia meeting on 4 November 1987 which note:

'Germany: Prices will reach target level during q4. No price increase intended for quarter 1/88.'

(87) The minutes of the Eurofer/Scandinavia meeting on 2 February 1988 note:

'It was decided to increase prices on 1 April as follows: on the German market by DM 20 for categories 1, 2a, 2b2 and 2b3, and by DM 10 for category 2b1; on the French market, By FF 50 for all categories except 2c.

It is also intended to increase prices in the United Kingdom market on 1 April 1988, although the size of the increase has not yet been decided.'

(88) The results of the meeting on 19 July 1988 are documented by a table attached to the minutes of the Eurofer/Scandinavia meeting on 25 July 1988 a copy of which was found at Usinor Sacilor. This table shows what is called the 'prix de marché T4-88' for beams in the ECSC. Basis prices are given for each category (category 1, 2a, 2b1, 2b2, 2b3 and 2c) in Germany, France and Belgium/Luxembourg respectively.

(89) The minutes of the meeting on 18 October 1988 note that the price increase envisaged for the fourth quarter of 1988 had been obtained on the markets. The minutes also set out what are called 'price estimates' for the first quarter of 1989:

'

Price estimates for the first quarter of 1989 Price increases are estimated at DM 25 to 40 in Germany, FF 50 to 100 in France and Bfrs 200 to 800 in Benelux. They will result in the following price levels: "" ID="1">Category 1 January:

FF 2 250

Base> ID="2">DM 630

Base> ID="3">Bfrs 13 500

Base> ID="4">Lit 480 000

Base"> ID="1">Category 2a January:

FF 2 350

Base> ID="2">DM 670

Base> ID="3">Bfrs 14 000

Base> ID="4">Lit 530 000

Base"> ID="1">Category 2b1

FF 2 350

Base> ID="2">DM 670

Base> ID="3">Bfrs 14 000

Base> ID="4">Lit 530 000

Base"> ID="1">Category 2b2

FF 2 450

Base> ID="2">DM 720

Base> ID="3">Bfrs 15 000

Base> ID="4">Lit 540 000

Base"> ID="1">Category 2b3

FF 2 600

Base> ID="2">DM 760

Base> ID="3">Bfrs 15 700

Base> ID="4">Lit 560 000

Base"> ID="1">Category 2c

FF 2 650

Base> ID="2">DM 795

Base> ID="3">Bfrs 16 500

Base> ID="4">Lit 600 000

Base""Germany: less 'merchant' discount of 2,5 %

plus DM 20 for small merchants

plus DM 80 for consumers

France: plus FF 100 for consumers

Italy: plus Lit 30 000 for consumers

Fresh prices increases are also planned for Spain for the first quarter of 1989.>

'

(90) A comparison of this table with the table attached to the minutes of the Eurofer/Scandinavia meeting on 25 July 1988 shows that in so far as the markets of France, Germany and Belgium/Luxembourg are concerned - the table attached to the minutes of the Eurofer/Scandinavia meeting does not show figures for the Italian market - the difference between the prices for the fourth quarter of 1988 and those of the first quarter of 1989 does indeed amount to between DM 25 and 40, FF 50 and 100 and Bfrs 200 and 800 for the respective categories. The only exception is category 1 in France (where the increase is FF 150) and in Belgium/Luxembourg (where the increase is Bfrs 1 000).

(91) The wording of the paragraph in the minutes of the meeting of 18 October, quoted in recital 89, suggests that the prices set out in this table are not the prices which the companies concerned expected the market to yield but those which they had agreed to apply. This is confirmed by a telex which was sent by Thyssen to TradeArbed on 22 September 1988:

'Basically, the most helpful timing of the discussion would be after the Eurofer/Scandinavia meeting. However, since this is rather late, we should in my view notify our friends of our broad intention for the EC and plead for parallel action, i.e. increases for the Scandinavian programme of:

Sweden SKr 100

Norway Nkr 100

Finland FM 40

The decision about category 2c can then be taken on 29 September.'

(92) It emerges that the Eurofer companies had discussed future prices and that they intended to implement increases of around DM 40 in so far as beams falling within the 'Scandinavian programme' (that is to say, categories 1, 2a, 2b1, 2b2 and 2b3) were concerned.

(93) The minutes of the Eurofer/Scandinavia meeting on 3 November 1988 note with regard to the markets for beams in the ECSC:

'Fresh increases are planned for the first quarter of 1989 and are expected by the trade. They involve increases in Germany of DM 25 to 40, in France of FF 50 to 100, and in Benelux of Bfrs 200 to 800.'

(94) The minutes of the meeting on 13 December 1988 note that the price increases for deliveries in the first quarter of 1989 (erroneously referred to as '1988') in Germany and France were accepted by the customers without any problem and that further increases were considered.

(95) The minutes of the meeting on 10 January 1989 note that the prices 'envisaged' for the first quarter of 1989 had been obtained on the German, French, Benelux, Italian, Spanish and British markets. The minutes also set out the 'expected' price increases in the second quarter of 1989 and the prices resulting from these increases.

(96) An undated file note on the results of this meeting prepared by British Steel refers to 'price intentions'. These are set out on a table accompanying the file note. The heading of this table is 'European price intentions April/June - increases'. The table shows the increases per category in the respective markets (between DM 10 and 20 in Germany, between FF 30 and 50 in France, between Bfrs 200 and 400 in Belgium and Lit 20 000 in Italy) and the 'implied new levels April 1989'.

The figures for France, Germany and the Benelux countries are identical with those set out in the minutes of the meeting on 10 January 1989. The prices for Italy are Lit 20 000 per tonne higher than the corresponding figures in the minutes. It appears that this divergence is due to a misunderstanding on the part of British Steel.

An internal memo dated 13 January 1989 prepared by Peine-Salzgitter contains corresponding data:

'At the meeting of the Poutrelles Committee on 10 January 1989, the price increases already envisaged for 1 April were set as follows: (. . .)'

(97) The minutes of the Eurofer/Scandinavia meeting on 1 February 1989 provide further information on the concertation of prices within the Poutrelles Committee:

'It was also pointed out that "harmonious" base prices (a differential of some DM 10 between the different Community markets) had been achieved for three quarters.'

(98) According to the minutes of the meeting on 7 February 1989 the participants expressed their opinion that the prices envisaged for the second quarter of 1989 were or would be obtained on all the markets concerned (Germany, France, Benelux, Italy and Spain) without any difficulties. The prices contained in the minutes of the meeting on 10 January were supplemented by prices for two categories in Italy and by prices for Spain.

(99) The minutes of the meeting on 19 April 1989 note that the expected prices were being obtained in Germany, France and Italy and that British Steel intended to increase its prices. The prices for the third quarter of 1989 set out in the minutes are basically identical with the prices shown in the minutes of the meetings of 10 January 1989 and 7 February 1989 respectively for the second quarter of 1989.

(100) A British Steel memo dated 24 April 1989 provides further information on the prices being charge in the United Kingdom:

'I informed the Committee that BS would be increasing prices by between 4 and 5 % at the beginning of June and suggested that companies sold into the United Kingdom at the BS "price ruling" to avoid undermining this increase.'

The memo also illustrates a conflict between the Spanish producers and British Steel:

'The Spanish group complained about British Steel's aggressive selling into Spain and in particular the low prices being charged. British Steel commented on the large tonnage (21 000 tonnes in January and February) imported from Spain to the United Kingdom and the disruptive prices at which this was being sold.'

A short report on the results of the meeting prepared by the Walzstahl-Vereinigung notes that a solution for this particular problem was to be found in bilateral talks.

(101) According to the minutes of the meeting on 6 June 1989, difficulties existed in relation to smaller sections (categories 1 and 2) in France and Italy but both Unimétal and the Italian producers declared to be determined to maintain prices. British Steel (which was not present at the meeting) informed its competitors that the price increases on the British market were accepted without difficulties.

(102) At the meeting on 11 July 1989, it was announced that the envisaged prices were obtained on the French market with the exception of categories 1 and 2a where prices were weak. On the Benelux markets certain offers at prices below the envisaged levels had been noticed:

'None the less planned prices have been achieved and they should be maintained.'

With regard to the British market it was confirmed that the price increase in the order of 4,25 % had been accepted by customers.

The discussion of prices for the fourth quarter of 1989 revealed that, given the increase in size and quality extras (see 1.5.2), the German producers did not intend to increase prices. The prices planned and achieved in the third quarter of 1989 were therefore maintained.

(103) The minutes of the meeting on 3 August 1989 contain the following paragraph (concerning the French market) which illustrates the thoughts and intentions of the participants of the Poutrelles Committee:

'At the moment, steel merchants are somewhat reluctant to place orders in the "hope" that prices will soon fall.'

The use of the inverted commas implies that the members of the Poutrelles Committee did not think that this hope was well-founded.

(104) It was noted that the price levels for categories 1 and 2a had by now been accepted by the clients in Italy. In Britain the prices which had been increased at the beginning of June were reported as being stable. The minutes give the impression that no increase of basis prices (19) was intended on any of the markets concerned in the fourth quarter of 1989.

(105) At Valor the Commission discovered an undated document which, according to Valor, formed part of an internal memorandum prepared by Usinor Sacilor for the meeting on 21 September 1989. The document discusses the relationship between Articles 60 and 65 of the ECSC Treaty. After noting that Article 60 does not prevent one company from publishing future prices long before the intended date of application of such prices the document continues:

'6. None the less the provisions of Article 65 expressly forbid all agreements between undertakings tending "to fix or determine prices". It seems evident that the announcement by a number of companies of their decision to increase their prices by the same amount, on the same date, would be in breach of the above provision.

7. There are two possible solutions:

(a) vague wording to imply that the state of the market should allow a change in prices within a non-specified period of time;

(b) "price leadership", a device used by United States companies. One company announces its intention to increase or reduce prices on a specified date. Several days later, the other companies announce that they intend to follow their competitor's example.'

This shows that Usinor Sacilor was contemplating ways of evading the competition rules of the ECSC Treaty.

(106) The minutes of the meeting on 7 November 1989 report that no price increases were planned for the first quarter of 1990. The only exception was France where Unimétal hoped to implement an increase of FF 50 on the actual prices for smaller beams.

(107) The next meeting was held on 12 December 1989. Its results are reflected in a speaking note which was prepared by the representative of TradeArbed (who was then the chairman of the Eurofer/Scandinavia meetings) for the Eurofer/Scandinavia meeting on 31 January 1990 which also provides valuable insights into the thoughts and intentions of the Eurofer companies:

'It is therefore absolutely necessary that all Eurofer mills and our Scandinavian friends do not exert pressure on the market.

(. . .)

Prices for the fourth quarter of 1989 have in principle been maintained in the first quarter of 1990. The new size extras are no longer a problem. However, it is regrettable, especially for categories 1, 2a and 2b1, that some mills have seen fit to undercut programmed prices over the past two or three weeks, thereby creating grey areas of DM 15 to 20. This must be stopped at once.

It is clear that this grey area must disappear in the second quarter and that the programmed prices must be applied across the board, in particular since the second quarter is probably going to produce the required demand. I call on everyone here to observe this rule strictly.'

(108) The minutes of the meeting on 14 February 1990 note with regard to prices for the second quarter of 1990 that the producers hoped to return to the price levels they had achieved in the fourth quarter of 1989:

'With regard to prices the local mills hoped very much to eliminate the current shortfall (of some DM 20) and to return rapidly to the levels achieved, in so far as each of them was concerned, during the fourth quarter of 1989.'

(109) Only Unimétal declared that it intended to increase the price for category 2c by FF 45. This is not a coincidence. In a letter to Unimétal (with a copy to TradeArbed) dated 6 November 1989, the president of the Poutrelles Committee had expressed his view that it was of paramount importance to harmonize prices in the ECSC in order to prevent what he called 'distortions' in the flux of trade.

Mr Meyer pointed out that in his view category 2c caused a major problem in this respect since prices in France and Germany respectively had been differing by approximatively DM 30 per tonne for some time. The chairman of the Poutrelles Committee considered that the time had now come to bridge this gap:

'This is a good time to close the gap with the German price. I believe this to have been necessary for some time and, in my view, it is achievable now.'

(110) Peine-Salzgitter reiterated its request in a letter dated 19 December 1989. On 7 February 1990 TradeArbed sent a fax to Unimétal (with a copy to Peine-Salzgitter) in which it urged the French producer to increase its price for category 2c in order to rectify this 'distortion' despite what it called a somewhat difficult position on the markets:

'This distortion is encouraging a number of French merchants to make greater inroads into the German market, disturbing the price structure in Germany (. . .). Despite the fact that conditions do not favour a price increase, prices for this category should be put up by FF 100/tonne, at the latest for deliveries in the second quarter.'

(111) Shortly after the meeting of the Poutrelles Committee on 14 February 1990 British Steel sent a fax to TradeArbed, Peine-Salzgitter, Thyssen, Saarstahl and Unimétal/Valor (Mr G.) setting out the definition of categories A 1, A 2 and A 3 currently applied by British Steel. Further explanations were to be given over the telephone on 19 February.

(112) The original of this fax which was found by the Commission at British Steel contains additions in manuscript. Under the heading 'Suggested £/t interpen. allowances' figures are inserted for each of the categories for stockholders and merchants respectively. The significance of these figures is clarified by an internal British Steel memo dated 20 February 1990:

'G. has been informed of the prices to charge which are not judged by us to be disruptive. I have been unable to contact Saarstahl - (Baron Dr Von Englehard) however I complained most strongly to him last week about the excessively low prices he is offering in the United Kingdom. It would not be unreasonable for us to point out to Unimétal that the consequences of the sins of Saarstahl should be felt in France rather than Germany.'

It emerges from all this that British Steel informed its most important competitors as to which prices (or inter penetration allowances) it would tolerate.

(113) According to the minutes of the meeting on 21 March 1990 British Steel deplored the fact that certain offers on the British market had been £ 55 to £ 70 below British Steel's price lists. An undated file note on the results of this meeting prepared by British Steel notes:

'Message to EC producers from BS is not to support these discounts.'

(114) The British Steel memo also contains information on the German market:

'German group wished to implement DM 20 increase on basis prices to recover position envisaged last October when extras increased by DM 20/25 (basis prices have slipped since).'

(115) According to the minutes of the meeting on 16 May 1990 British Steel announced that it contemplated increasing prices in the United Kingdom for the third quarter of 1990 and that a decision would be taken in May. A note dated 18 May 1990 produced by Usinor Sacilor reports that British Steel had requested the other producers to wait until the end of May before making any binding offers for deliveries to the United Kingdom.

On 7 June 1990 British Steel sent a fax to TradeArbed, Peine-Salzgitter, Saarstahl, Thyssen, Ensidesa, Unimétal and Aristrain:

'I enclose details of British Steel's new price list 5 changes applicable from 1 July 1990 for structural sections.

(. . .)

Overall there is an increase of around 5 % on our previous list. Please ensure that offers for the third quarter take full account of this increase.'

(116) An internal briefing note (dated 9 July 1990) prepared by Peine-Salzgitter for the chairman of the Poutrelles Committee with a view to the meeting on 10 July 1990 sums up the policy issues which were then discussed. The author suggests that in view of the partial increase of size extras no 'official increase' of prices should be introduced with effect for the fourth quarter of 1990. However, participants were to be exhorted to ensure the application of the new size extras and of prices agreed:

'Appeal to all participants concerning the third and fourth quarters:

- implementation of the new size extras,

- implemantation of the agreed price levels/dismantling of grey discounts.'

(117) An internal British Steel memo dated 17 July 1990 notes that the other producers had so far paid 'little regard' to the guidance which British Steel had given them on price levels for sales in the United Kingdom. As the British Steel memo dated 20 July 1990 shows British Steel used the meeting on 10 July 1990 in order to urge its competitors again to respect the new British Steel prices.

Another British Steel memo dated 30 July 1990 reveals that TradeArbed's behaviour was particularly irritating for British Steel:

'There is little doubt that Arbed, who are seen as the largest EEC importer, have been irresponsible in their pricing and have not adhered to the agreement we reached when we met with Everard and Sevenig. Of importance they are offering large discounts across the total range of products.'

(118) The minutes of the meeting on 11 September 1990 note that the meeting was told that the increase in the British Steel price list was accepted by the customers in the United Kingdom. With regard to the other markets the minutes note that a price increase of DM 25 to 30 was 'foreseeable'.

(119) A British Steel memo dated 25 September 1990 which reports on the results of this meeting puts the matter more bluntly:

'There is a general feeling that prices should be increased moderately - approximatively DM 30 per tonne. Some discussion as to whether this should be in addition to basis or a further addition to extras. Likely timing for the increase is 1 January.'

This memo also indicates that British Steel did not take part in the discussion of prices:

'British Steel did not enter into the discussion on prices. Remained simply in the spirit of transparency. Strongly advised chairman that the market should not be told that the "Eurofer producers had decided to have an increase".'

(120) The minutes of the meeting on 9 October 1990 note that prices for the first quarter of 1991 were discussed and that an increase of DM 20 to 30 would be acceptable to clients on the continent. No 'forecast' was made for the United Kingdom market.

(121) A fax from the Walzstahl-Vereinigung to Ferdofin dated 19 December 1990 shows that the companies concerned hoped to achieve an increase in prices of up to DM 20 per tonne by applying new extras (see 1.5.2):

'It should be remembered that the price levels prevailing in the fourth quarter of 1990 were expected to be maintained in the first quarter of 1991, though accompanied by continued improvement in sales revenue of up to DM 20 per tonne on average by the end of the quarter through the application of the new extras.'

1.5.2. Harmonization of extras

(122) A proposal for the harmonization of quality extras which had been prepared by Usinor Sacilor was submitted at the meeting on 18 October 1988. The minutes of the meeting on 15 November 1988 indicate that the quality extras applied in Germany were chosen as the target to be attained ('Zielpreis').

British Steel announced at the meeting that it would take the results of this harmonization into account when deciding on its prices.

(123) The minutes of the meeting on 10 January 1989 record that an 'Italian representative' submitted a proposal for the harmonization of size extras for IPE, HEB and HEA beams at the meeting. It was agreed to study this proposal and prepare a project for the harmonization of size extras for application in the third or fourth quarter of 1989.

(124) Increasing the extras of course entailed the risk that a company might be tempted to offset this increase by a reduction of the basis price and thus obtain an advantage over its competitors. The members of the Poutrelles Committee appear to have been aware of this risk but do not seem to have regarded it as a serious threat. In its letter of 24 February 1989 (a draft of which is in the possession of the Commission) to the chairman of the Committee Ferdofin stated:

'I assert that the European group (including Ferdofin) which produces HE beams is sufficiently homogeneous to exclude reductions in basis prices where there is an increase in size extras.'

(125) The minutes of the meeting on 19 April 1989 note that a working group was due to meet in order to determine the extent of the increases ('hausses') of size extras which were due to be applied as from 1 October 1989. The evidence shows that this meeting was held on the same day, apparently after the meeting of the Poutrelles Committee.

A report on the results of the meeting of this working group shows that the participants of the Poutrelles Committee had agreed, through the working group they had set up for that purpose, both to harmonize and to increase size extras for beams:

'In view of the fact that the date of application of these new extras was fixed at 1 October 1989 by the Poutrelles Committee, the Italian group proposed total alignment on the highest size extras in the Community.

It was nevertheless thought preferable to proceed in stages. The meeting laid down the following guidelines:

1. harmonization will be upwards.

It must on no account lead to a reduction in the list price;

2. it represents a second stage.

A third stage will have to be envisaged for a number of profiles in order to reduce the current gap in relation to the highest Community extra;

3. the date of application was fixed at 1 October 1989.'

The report lists the harmonized extras for all IPN, UPN, IPE, HEA, HEB and HEM beams.

(126) The Commission has obtained some of the working documents (found at the Walzstahl-Vereinigung) and some of the tables (found at Valor) comparing the size extras applied at the time in France, Germany, Luxembourg and Italy with the new size extras to be applied as from 1 October 1989. These documents show that the harmonization agreed on 19 April 1989 resulted in increases of virtually all the size extras applied in France, Germany and Luxembourg at that time. In many instances, these increases were quite considerable. The extras for HEB 200 for example in France, Germany and Luxembourg had previously stood at ECU 20, 19 and 19 respectively; they were now increased to ECU 46 per tonne. The fact that the 'harmonization' of size extras resulted in an increase of prices is confirmed by an internal memo of Peine-Salzgitter dated 10 July 1989.

(127) An internal memo dated 5 June 1989 drawn up by Peine-Salzgitter points out that Peine-Salzgitter had informed the Commission of the new extras to be applied by Peine-Salzgitter in a letter dated 23 May 1989. This underlines the fact that the notification of these harmonized extras was effected only after they had been agreed between the members of the Poutrelles Committee. The minutes of the Eurofer/Scandinavia meeting on 25 April 1989 confirm that the new size extras had not been published prior to that date.

(128) At the meeting on 6 June 1989, the Spaniards declared that they would increase their size extras in stages in order to harmonize them with the European levels.

(129) At the same meeting the question of the harmonization of quality extras was discussed. The decision adopted was similar to the one taken at the previous meeting in respect of size extras, that is to say the harmonization was meant to result in higher prices:

'The meeting decided to endorse the French group's proposal for harmonization. The date of entry into force was set at 1 October 1989. It was stressed that harmonization would be upwards and must on no account lead to a reduction in the list price.'

The minutes list the new extras and note that British Steel had announced (by telex) that it would comply with the results of this harmonization.

(130) In a letter dated 15 December 1989 sent to Mr Arnuzoo (Ferdofin) Peine-Salzgitter notes that several of the participants of the Poutrelles Committee had asked at the meeting on 12 December 1989 (not attended by Ferdofin) whether Ferdofin was applying the new extras, particularly in so far as the German market was concerned.

Ferdofin replied by telex on 21 December 1989 and assured Peine-Salzgitter that it had applied the new extras for deliveries to all the European markets since 1 October 1989 without exception.

(131) The implementation of the new extras appears to have had repercussions on the basis price. The minutes of the meeting on 14 February 1990 note:

'The new extras have been fully achieved, although regrettably sometimes at the expense of the basis prices.'

(132) The minutes of the meeting on 16 May 1990 report that the producers 'envisaged' increasing size extras by DM 15 to 20 as of 1 July 1990.

This was based on a proposal submitted by the participants from Germany and Luxembourg (see the fax dated 11 May 1990 from Peine-Salzgitter to the secretariat). An examination of this document reveals that the proposed modifications would have resulted in a virtually complete harmonization of the size extras concerned but also in a considerable increase of the amount of these size extras.

(133) While the minutes of the meeting give the impression that an increase of size extras was only contemplated, a report prepared by the Walzstahl-Vereinigung shows that in reality all the participants had accepted this proposal:

'All groups present accepted this proposal on condition that it did not lead to another reduction in the basis prices, as happened in the fourth quarter of 1989.'

This is also confirmed by a confidential note dated 17 May 1990 sent by the secretariat of the Poutrelles Committee of Unimétal:

'All groups confirmed their agreement to this proposal, with immediate publication and application from 1 July 1990.'

(134) In a fax dated 21 May 1990 Peine-Salzgitter informed Aristrain's representation in Germany (which had not been able to attend the meeting on 16 May) of the details of the agreement reached. This document reveals that it had also been agreed that orders for delivery in the period starting on 1 July 1990 would not be accepted by the participants before 1 June 1990.

(135) Usinor Sacilor's confidential note dated 17 May 1990 shows that some of the participants wished to proceed even further:

'With regard to the smaller sizes (IPE 80 to 150 mm) for which no increase is proposed, Mr Masserdotti will contact you to see whether they cannot be increased too.'

(136) In a fax to the secretariat which was written on Stefana's letterhead dated 31 May 1990, Mr Masserdotti ex