JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

9 December 2014 ( *1 )

‛Competition — Agreements, decisions and concerted practices — Market for concrete reinforcing bars in bars or coils — Decision finding an infringement of Article 65 CS after the expiry of the ECSC Treaty on the basis of Regulation (EC) No 1/2003 — Fixing of prices and payment terms — Limiting or controlling output or sales — Infringement of essential procedural requirements — Legal basis — Misuse of powers and abuse of procedure — Fines — Ceiling laid down by Article 23(2) of Regulation No 1/2003 — Actions for annulment — Amending decision — Inadmissibility’

In Cases T‑472/09 and T‑55/10,

SP SpA, established in Brescia (Italy), represented by G. Belotti, lawyer,

applicant,

v

European Commission, represented, in Case T‑472/09, initially by R. Sauer, V. Di Bucci and B. Gencarelli, and subsequently by R. Sauer and R. Striani, acting as Agents, assisted by M. Moretto, lawyer, and, in Case T‑55/10, initially by R. Sauer and B. Gencarelli, and subsequently by R. Sauer and R. Striani, assisted by M. Moretto,

defendant,

APPLICATION, in Case T‑472/09, for a declaration of the non-existence of, or for the annulment of Commission Decision C(2009) 7492 final of 30 September 2009 relating to a proceeding under Article 65 CS (Case COMP/37.956 — Reinforcing bars, re-adoption) and, in the alternative, for the annulment of Article 2 of that decision and, in the further alternative, for a reduction in the amount of the fine imposed on the applicant and, in Case T‑55/10, for the annulment of Commission Decision C(2009) 9912 final of 8 December 2009, amending Decision C(2009) 7492 final,

THE GENERAL COURT (Eighth Chamber),

composed of M.E. Martins Ribeiro (Rapporteur), acting as President, A. Popescu and G. Berardis, Judges,

Registrar: T. Weiler, Administrator,

having regard to the written procedure and further to the hearing on 29 January 2013,

gives the following

Judgment

Legal framework

1. ECSC Treaty provisions

1 Article 36 CS provided: ‘Before imposing a pecuniary sanction or ordering a periodic penalty payment as provided for in this Treaty, the Commission must give the party concerned the opportunity to submit its comments. The Court shall have unlimited jurisdiction in appeals against pecuniary sanctions and periodic penalty payments imposed under this Treaty. In support of its appeal, a party may, under the same conditions as in the first paragraph of Article 33 of this Treaty, contest the legality of the decision or recommendation which that party is alleged not to have observed.’

2 Article 47 CS read as follows: ‘The Commission may obtain the information it requires to carry out its tasks. It may have any necessary checks made. The Commission must not disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components. Subject to this reservation, it shall publish such data as could be useful to Governments or to any other parties concerned. The Commission may impose fines or periodic penalty payments on undertakings which evade their obligations under decisions taken in pursuance of this Article or which knowingly furnish false information. The maximum amount of such fines shall be 1% of the annual turnover, and the maximum amount of such penalty payments shall be 5% of the average daily turnover for each day’s delay. Any breach of professional secrecy by the Commission which has caused damage to an undertaking may be the subject of an action for compensation before the Court, as provided in Article 40.’

3 Article 65 CS provided: ‘1. All agreements between undertakings, decisions by associations of undertakings and concerted practices tending directly or indirectly to prevent, restrict or distort normal competition within the common market shall be prohibited, and in particular those tending: (a) to fix or determine prices; (b) to restrict or control production, markets, technical development or investment; (c) to share markets, products, customers or sources of supply. … 4. Any agreement or decision prohibited by paragraph 1 of this Article shall be automatically void and may not be relied upon before any court or tribunal in the Member States. The Commission shall have sole jurisdiction, subject to the right to bring actions before the Court, to rule whether any such agreement or decision is compatible with this Article. 5. On any undertaking which has entered into an agreement which is automatically void, or has enforced or attempted to enforce, by arbitration, penalty, boycott or by any other means, an agreement or decision which is automatically void or an agreement for which authorisation has been refused or revoked, or has obtained an authorisation by means of information which it knew to be false or misleading, or has engaged in practices prohibited by paragraph 1 of this Article, the Commission may impose fines or periodic penalty payments not exceeding twice the turnover on the products which were the subject of the agreement, decision or practice prohibited by this Article; if, however, the purpose of the agreement, decision or practice is to restrict production, technical development or investment, this maximum may be raised to 10% of the annual turnover of the undertakings in question in the case of fines, and 20% of the daily turnover in the case of periodic penalty payments.’

4 Pursuant to Article 97 CS, the ECSC Treaty expired on 23 July 2002.

2. Provisions of the EC Treaty

5 Article 305(1) EC provided: ‘The provisions of this Treaty shall not affect the provisions of the Treaty establishing the European Coal and Steel Community, in particular as regards the rights and obligations of Member States, the powers of the institutions of that Community and the rules laid down by that Treaty for the functioning of the common market in coal and steel.’

3. Regulation No 1/2003

6 According to Article 4 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), ‘[f]or the purpose of applying Articles 81 [EC] and 82 [EC], the Commission shall have the powers provided for by this Regulation’.

7 Article 7 of Regulation No 1/2003, headed ‘Finding and termination of infringement’, provides: ‘Where the Commission, acting on a complaint or on its own initiative, finds that there is an infringement of Article 81 [EC] or of Article 82 [EC], it may by decision require the undertakings and associations of undertakings concerned to bring such infringement to an end. … If the Commission has a legitimate interest in doing so, it may also find that an infringement has been committed in the past. ...’

8 Article 23(2)(a) of Regulation No 1/2003 provides: ‘The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently: (a) they infringe Article 81 [EC] or Article 82 [EC]’.

4. Communication from the Commission concerning certain aspects of the treatment of competition cases resulting from the expiry of the ECSC Treaty

9 On 18 June 2002, the Commission adopted the Communication concerning certain aspects of the treatment of competition cases resulting from the expiry of the ECSC Treaty (OJ 2002 C 152, p. 5) (‘the Communication of 18 June 2002’).

10 Paragraph 2 of the Communication of 18 June 2002 states that its purposes are: ‘… — … to summarise for economic operators and Member States, in so far as they are concerned by the ECSC Treaty and its related secondary legislation, the most important changes with regard to the applicable substantive and procedural law arising from the transition to the EC regime, — … to explain how the Commission intends to deal with specific issues raised by the transition from the ECSC regime to the EC regime in the areas of antitrust, merger control and State aid control.’

11 Paragraph 31 of the Communication of 18 June 2002, which appears in the section addressing specific issues raised by the transition from the ECSC regime to the EC regime, provides as follows: ‘If the Commission, when applying the Community competition rules to agreements, identifies an infringement in a field covered by the ECSC Treaty, the substantive law applicable will be, irrespective of when such application takes place, the law in force at the time when the facts constituting the infringement occurred. In any event, as regards procedure, the law applicable after the expiry of the ECSC Treaty will be the EC law.’

Subject-matter of the disputes

12 The present cases concern, first, an application for a declaration of the non-existence of, or for the annulment of Commission Decision C(2009) 7492 final of 30 September 2009 relating to a proceeding under Article 65 CS (Case COMP/37.956 — Reinforcing bars, re-adoption) (‘the first decision’) and, in the alternative, for the annulment of Article 2 of that decision and, in the further alternative, for a reduction in the amount of the fine imposed on the applicant SP SpA (Case T‑472/09) and, secondly, an application for the annulment of Commission Decision C(2009) 9912 final of 8 December 2009 amending the first decision (‘the amending decision’) (Case T‑55/10).

13 In the first decision, the Commission found that the following companies had infringed Article 65 CS: — Alfa Acciai SpA (‘Alfa’); — Feralpi Holding SpA (‘Feralpi’); — Ferriere Nord SpA: — IRO Industrie Riunite Odolesi SpA (‘IRO’); — Leali SpA and Acciaierie e Ferriere Leali Luigi SpA in liquidation (‘AFLL’) (together referred to as ‘Leali-AFLL’); — Lucchini SpA and the applicant (together referred to as ‘Lucchini-SP’); — Riva Fire SpA (‘Riva’); — Valsabbia Investimenti SpA and Ferriera Valsabbia SpA (together referred to as ‘Valsabbia’).

The applicant

14 The applicant is a company in liquidation, recorded in the commercial register of Brescia (Italy) as non-operating. It is held as to 83.333% by legal and natural persons connected with the Lucchini family, the remaining 16.667% being held by Lucchini.

15 Siderpotenza SpA (‘the first Siderpotenza’) was, between 1989 and 1991, an undertaking jointly controlled by Lucchini Siderurgica SpA and the former Acciaierie e Ferriere Leali Luigi. On 5 March 1991, the first Siderpotenza was taken over Lucchini Siderurgica. Lucchini Siderurgica was taken over by Lucchini on 10 October 1998, with effect from 1 December 1998.

16 On 31 October 1997, Lucchini Siderurgica’s reinforcing bar business was transferred to Siderpotenza, a company established in July 1997 (‘the new Siderpotenza’). On 30 May 2002, the new Siderpotenza transferred all its reinforcing bar plant to Ferriere Nord.

17 On 12 September 2002, the new Siderpotenza changed its company name to SP. SP was put into liquidation on 28 May 2009.

Background to the dispute

18 From October to December 2000, the Commission carried out a number of checks pursuant to Article 47 CS at the premises of certain Italian undertakings engaged in the manufacture of reinforcing bars and at the premises of an association of certain Italian steel undertakings. It also requested them to supply information pursuant to Article 47 CS.

19 On 26 March 2002, the Commission opened the administrative procedure and formulated objections under Article 36 CS (‘the statement of objections’). The applicant submitted written observations on the statement of objections. A hearing took place on 13 June 2002.

20 On 12 August 2002, the Commission formulated additional objections (‘the supplementary statement of objections’) addressed to the same addressees as the statement of objections. In the supplementary statement of objections, based on Article 19(1) of Council Regulation No 17 [of 6 February 1962]: First Regulation implementing Articles [81 EC] and [82 EC] (OJ, English Special Edition 1959-1962, p. 87), the Commission explained its position concerning the continuation of the proceedings following the expiry of the ECSC Treaty. The undertakings concerned were allowed a period of time in which to submit their observations and a second hearing, in the presence of representatives of the Member States, took place on 30 September 2002.

21 At the end of the procedure, the Commission adopted Decision C(2002) 5087 final of 17 December 2002 relating to a proceeding under Article 65 CS (Case COMP/37.956 — Reinforcing bars) (‘the 2002 decision’), in which it found that, contrary to Article 65(1) CS, the addressees thereof had implemented a single, complex and continuous restrictive practice on the Italian market for concrete reinforcing bars in bars and coils having as its object or effect the fixing of prices, with a view to which the restriction or control of production and/or sales was also concerted. In that decision, the Commission imposed a fine of EUR 16.14 million jointly and severally on Lucchini and the applicant.

22 On 30 January 2003, the applicant brought an action before the General Court challenging the 2002 decision. By judgment of 25 October 2007 in Joined Cases T-27/03, T-46/03, T-58/03, T-79/03, T-80/03, T-97/03 and T-98/03 SP and Others v Commission [2007] ECR II-4331, the General Court annulled the 2002 decision. The Court held that, having regard, in particular, to the fact that the 2002 decision contained no reference to Article 3 or Article 15(2) of Regulation No 17, the decision was based on Article 65(4) and (5) CS alone (SP and Others v Commission, paragraph 101). Since those provisions had expired on 23 July 2002, the Commission could no longer derive competence from those provisions, which were no longer in force when it adopted the 2002 decision, in order to establish an infringement of Article 65(1) CS and to impose fines on the undertakings which had allegedly participated in the infringement (SP and Others v Commission, paragraph 120).

23 By letter of 30 June 2008, the Commission informed the applicant and the other undertakings concerned of its intention to re-adopt the decision, changing the legal basis from that which it had chosen for the 2002 decision. It also stated that, having regard to the limited scope of the judgment in SP and Others v Commission, cited in paragraph 22 above, the re-adopted decision would be based on the evidence presented in the statement of objections and the supplementary statement of objections. The undertakings concerned were allowed a period of time in which to submit their observations.

24 By facsimile dated 11 September 2008, the Commission asked the applicant for information regarding the changes in the ownership structure that had occurred since August 2002 and worldwide turnover achieved in 2007 and sent the applicant a copy of the letter of 30 June 2008, mentioned above, which had been sent to an address that was no longer in use. The applicant responded to that request for information by letter of 17 September 2008.

The first decision

25 On 30 September 2009, the Commission adopted the first decision, which was notified to the applicant by letter of 1 October 2009.

26 In the first decision, the Commission stated that the restrictions on competition referred to in the decision arose out of an agreement between Italian producers of reinforcing bars and between those producers and their association, which had taken place between 1989 and 2000 and had had the object or effect of fixing or determining prices and restricting or controlling production or sales by means of the exchange of a large volume of information relating to the market for reinforcing bars in Italy.

27 In so far as concerns, first of all, the legal assessment of the conduct in question in this case, the Commission emphasised, in recitals 353 to 369 of the first decision, that Regulation No 1/2003 was to be interpreted as empowering it to establish and sanction, after 23 July 2002, agreements in the sectors which fell within the scope of the ECSC Treaty ratione materiae and ratione temporis. In recital 370 of the first decision, it stated that the decision had been adopted in accordance with the procedural rules of the EC Treaty and Regulation No 1/2003. In recitals 371 to 376 of the first decision, the Commission also pointed out that the principles governing the temporal succession of rules could lead to the application of substantive provisions which are no longer in force at the time when an EU institution adopts a measure, subject to application of the principle of lex mitior, in accordance with which a person may not be punished for an act which does not constitute an offence under the law which came into force subsequently. It concluded that, in this case, the EC Treaty was not in fact more favourable than the ECSC Treaty and that, consequently, the principle of lex mitior could not be relied on in order to contest the application of the ECSC Treaty to the conduct in question in this case.

28 Next, as regards the application of Article 65(1) CS, the Commission began by pointing out that the purpose of the cartel had been to fix prices on the basis of which the restriction or control of production or sales had also been agreed. According to the Commission, in so far as concerned price fixing, the cartel had essentially involved agreements or concerted practices relating to the base price from 15 April 1992 to 4 July 2000 (and, until 1995, payment terms) and agreements or concerted practices relating to ‘extras’ from 6 December 1989 to 1 June 2000.

29 Secondly, in so far as concerns the effect of the restrictive practices in question on the market, the Commission stated that, since this was an agreement whose purpose was to prevent, limit or alter the normal play of competition, it was not necessary to establish that there had been any effects on the market. It nevertheless submitted that the cartel had had specific effects on the market. In particular, the Commission concluded that the cartel had influenced the sale price charged by reinforcing bar manufacturers in Italy, even if the measures taken within the cartel had not always immediately produced the effects hoped for by the participating undertakings. Moreover, according to the Commission, some aspects could have had delayed effects. Furthermore, the undertakings concerned represented approximately 21% of the Italian market for reinforcing bars in 1989, 60% in 1995 and approximately 83% in 2000, which suggested that the concerted price increases were having a growing effect on the market. Lastly, the Commission emphasised that the fact that the initiatives taken in the matter were, from 1989 onwards, communicated to all manufacturers of reinforcing bars increased the significance of those effects even in the initial years of the cartel.

30 Thirdly, the Commission identified the addressees of the first decision. In so far as the applicant is concerned, the Commission stated, in recitals 538 to 544 of the first decision, that it had decided to impute liability for the infringement to Lucchini and the applicant, since they formed an undertaking to which not only their own actions could be imputed but also those of Lucchini Siderurgica and the first Siderpotenza.

31 As regards its position that Lucchini and the applicant formed a single economic unit, the Commission relied on the fact that, throughout the period of the infringement, both Lucchini and the applicant were directly or indirectly controlled by the Lucchini family. Moreover, control over the applicant was exercised, in the actual management of its manufacturing and commercial policy in the reinforcing bar business, by Lucchini, as was shown, according to the Commission, by specific and circumstantiated documentary evidence as well as by corroborating elements relating to the organisational structure of Lucchini and the applicant, in particular, the fact that certain persons occupied positions in commercial management within those companies, sometimes simultaneously.

32 As regards the imputation to Lucchini and the applicant of any anti-competitive conduct on the part of the first Siderpotenza and Lucchini Siderurgica (which no longer have any legal existence), first, the Commission pointed out that Lucchini Siderurgica had legally succeeded the first Siderpotenza following the merger by incorporation of 5 March 1991 and that, similarly, Lucchini had succeeded Lucchini Siderurgica following the merger by incorporation of 1 December 1998. Secondly, all the physical and human elements of the first Siderpotenza had subsequently been managed by Lucchini Siderurgica from the time of the incorporation of the first Siderpotenza into Lucchini Siderurgica, on 5 March 1991. Thirdly, the physical and human elements connected with the plant at Potenza (Italy) and organised by Lucchini Siderurgica had been transferred, within the group, to the applicant. Fourthly, Lucchini Siderurgica and then Lucchini had exercised decisive influence over the applicant’s activities until 1 June 2002, on which date the branch of the company manufacturing reinforcing bars had been transferred to Ferriere Nord.

33 The Commission therefore concluded that (a) there was legal continuity between the first Siderpotenza and Lucchini Siderurgica, (b) there was economic continuity between those two companies and the new Siderpotenza (now the applicant) with regard to the plant at Potenza (Italy), (c) Lucchini Siderurgica and Lucchini were responsible for the activities of the new Siderpotenza as a result of the decisive influence which they had exercised, and (d) there was legal continuity between Lucchini Siderurgica and Lucchini. The Commission concluded from the foregoing that all those entities constituted a single undertaking which could be identified as the undertaking formed by Lucchini and the applicant.

34 Fourthly, the Commission stated that Article 65(2) CS and Article 81(3) EC were not applicable to the case. It also emphasised that the rules on prescription laid down in Article 25(1) of Regulation No 1/2003 did not preclude it from adopting the first decision.

35 Fifth, in so far as concerns the calculation of the fines imposed in this case, the Commission stated that, under Article 23(2) of Regulation No 1/2003, it could impose fines on undertakings which had infringed the competition rules. Since the upper limit on fines laid down in Article 23(2) of Regulation No 1/2003 differed from that in Article 65(5) CS, the Commission stated that it had applied the lower ceiling, in accordance with the lex mitior principle. It also stated that, as it had informed the undertakings concerned in its letter of 30 June 2008, it had decided to apply in this case the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) [CS] (OJ 1998 C 9, p. 3). It added that it would, however, take account of the fact that, when it adopted the 2002 decision, it had already decided on the amount of the fines which it meant to impose on the undertakings concerned.

36 First, the Commission stated that an agreement aimed at price fixing, implemented in various ways including the restriction or control of production or sales, constituted a very serious infringement of EU competition law. It rejected the arguments put forward by the undertakings involved to the effect that the gravity of the infringement was attenuated by the fact that its actual effect on the market had been limited and by the economic context in which they had found themselves. According to the Commission, without prejudice to the very serious nature of the infringement, it had, in determining the basic amount of the fine, taken account of the specific characteristics of the case, which concerned a national market that, at the relevant time, was subject to the particular rules of the ECSC Treaty and of which the firms to which the first decision was addressed accounted for a limited share during the initial period of the infringement.

37 Second, the Commission considered the specific weight of each undertaking and classified them according to their relative importance on the relevant market. Because the relative market shares of the addressees of the first decision in the last full year of the infringement (1999) were not, in the Commission’s view, representative of their effective presence on the relevant market during the period in question, the Commission identified three different groups of undertakings on the basis of their average market shares for the period 1990 to 1999, first Feralpi and Valsabbia, for which it set a starting amount of EUR 5 million, next, Lucchini-SP, Alfa, Riva and Leali-AFLL, for which it set a starting amount of EUR 3.5 million, and lastly IRO and Ferriere Nord, for which it set a starting amount of EUR 1.75 million.

38 In order to give the fine a sufficient deterrent effect, the Commission increased the starting amount of Lucchini-SP’s fine by 200% and that of Riva by 375%.

39 Third, the Commission concluded that the cartel had lasted from 6 December 1989 to 4 July 2000. In so far as concerned the applicant’s involvement in the infringement, the Commission stated that it had been a party to the agreement from 6 December 1989 to 27 June 2000. It nevertheless pointed out that, from 9 June 1998 to 30 November 1998, Lucchini-SP had not participated in the part of the agreement relating to the restriction or control of production or sales.

40 The infringement having lasted for more than 10 years and 6 months in the case of all the undertakings except Ferriere Nord, the starting amounts of the fines were increased by 105% for all the undertakings except Ferriere Nord, for which the starting amount of the fine was increased by 70%. The basic amounts of the fines were accordingly set as follows: — Feralpi: EUR 10.25 million; — Valsabbia: EUR 10.25 million; — Lucchini-SP: EUR 14.35 million; — Alfa: EUR 7.175 million; — Riva: EUR 26.9 million; — Leali-AFLL: EUR 7.175 million; — IRO: EUR 3.58 million; — Ferriere Nord: EUR 2.97 million.

41 Fourth, as regards aggravating circumstances, the Commission pointed out that Ferriere Nord had already been the addressee of a Commission decision, adopted on 2 August 1989, concerning its participation in a price-fixing and sales-restricting agreement in the welded steel mesh industry, and increased the basic amount of its fine by 50%. The Commission found there to be no mitigating circumstances.

42 Fifth, in so far as concerns the calculation of the upper limit of the fines in accordance with Article 23(2) of Regulation No 1/2003, the Commission stated that the amounts of the fines imposed on the undertakings concerned did not exceed the ceiling of 10% of turnover in the products falling within the scope of the ECSC Treaty within the European Union in 2007. As regards the applicant more specifically, the Commission emphasised that the fact that it was currently inactive did not preclude it from imposing a fine on it since it was jointly and severally liable with Lucchini, with which it formed a single undertaking.

43 Sixth, as regards application of the Notice on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4) (‘the 1996 Leniency Notice’), the Commission stated that Ferriere Nord had provided it with useful information which had allowed it to gain a better understanding of the functioning of the cartel before the statement of objections was sent, and accordingly granted it a reduction of 20% of the amount of its fine. The Commission considered that the other undertakings concerned had not satisfied the criteria laid down in the notice.

44 The operative part of the first decision reads as follows:

‘Article 1

The following undertakings have infringed Article 65(1) [CS] by taking part, in the periods in question, in a continuing agreement and/or concerted practices in respect of concrete reinforcing bar in bars and coils having as its object and/or effect the fixing of prices and the restriction and/or control of production and sales in the common market:

— [Leali-AFLL] from 6 December 1989 to 27 June 2000;

— [Alfa] from 6 December 1989 to 4 July 2000;

— [Ferriera Valsabbia and Valsabbia Investimenti] from 6 December 1989 to 27 June 2000;

— [Feralpi] from 6 December 1989 to 27 June 2000;

— [IRO] from 6 December 1989 to 27 June 2000;

— [Lucchini-SP] from 6 December 1989 to 27 June 2000;

— [Riva] from 6 December 1989 to 27 June 2000;

— [Ferriere Nord] from 1 April 1993 to 4 July 2000.

Article 2

The following fines are imposed in respect of the infringements referred to in Article 1:

— [Alfa]: EUR 7.175 million;

— [Feralpi]: EUR 10.25 million;

— [Ferriere Nord]: EUR 3.57 million;

— [IRO]: EUR 3.58 million;

— [Leali and AFLL], jointly and severally: EUR 6.093 million;

— [Leali]: EUR 1.082 million;

— [Lucchini and SP], jointly and severally: EUR 14.35 million;

— [Riva]: EUR 26.9 million;

— [Valsabbia Investimenti and Ferriera Valsabbia], jointly and severally: EUR 10.25 million.

…’

Developments after the notification of the first decision

45 By letters sent between 20 and 23 November 2009, 8 of the 11 companies to which the first decision was addressed, namely Riva, Feralpi, Ferriere Nord, Lucchini, Alfa, Ferriera Valsabbia, Valsabbia Investimenti and IRO, informed the Commission that the annex to the first decision, as notified to its addressees, did not contain the tables illustrating the price variations.

46 On 24 November 2009, the Commission informed all the addressees of the first decision that it would make sure that a decision containing the said tables was notified to them. It also stated that the period of time allowed for paying the fine and possibly instituting legal proceedings would begin to run from the date of notification of the ‘full decision’.

The amending decision

47 On 8 December 2009, the Commission adopted the amending decision, which included in its annex the missing tables and corrected the numbered references to those tables in eight footnotes. The amending decision was notified to the applicant on 9 December 2009.

48 The operative part of the amending decision contained amendments to footnotes 102, 127, 198, 264, 312, 362, 405 and 448 to the first decision. The tables set out in the annex to the amending decision were added as annexes to the first decision.

Procedure and forms of order sought by the parties

49 By application lodged at the Registry of the General Court on 30 November 2009, the applicant brought the action in Case T‑472/09.

50 In Case T‑472/09, the applicant claims that the Court should: — as a preliminary point, declare non-existent and/or null and void or, in any event, annul the first decision on the ground of its unlawfulness and formal deficiency, inasmuch as it is incomplete; — on the substance, declare non-existent or null and void or, in any event, annul the first decision in so far as concerns the fine on the grounds of unlawfulness, lack of competence, and misuse of powers; — in the alternative, on the substance, annul the first decision on the grounds of a lack of reasoning and distortion of the facts, error of law, the unfounded and unproven nature of the objections, and infringement of the principle of the impartiality of administrative action and of the rights of the defence; — in the further alternative, on the substance, reduce the fine imposed on it, first, by cancelling the increase of 200% for deterrence and the increase of 105% for duration and, secondly, by reducing, in due proportion, the basic amount on the grounds of a time-bar, the limited gravity of the infringement, the marginal nature of its participation in the cartel and the objections expressly not raised against it; — by way of measures of organisation of procedure and measures of inquiry, order the Commission, pursuant to Articles 64 and 65 of the Rules of Procedure of the General Court, to produce the documents relating to the cooperation provided by Ferriere Nord and concerning the applicant, and to hear the legal representative of that company on the facts set out in paragraph 176 of the application; — order the Commission to pay all the costs.

51 The Commission contends, in Case T‑472/09, that the Court should: — dismiss the action in its entirety; — order the applicant to pay the costs.

52 By letter of 8 January 2010, the Commission requested the Court to adopt a measure of organisation of the procedure inviting the applicant to consider updating and amending its claim in light of the amending decision, which had been notified to the applicant after the action had been brought in Case T‑472/09. The applicant opposed that request. The General Court did not grant the Commission’s request.

53 By application lodged at the Registry of the General Court on 10 February 2010, the applicant brought the action in Case T‑55/10.

54 In Case T‑55/10, the applicant claims that the Court should: — on the substance, annul the amending decision, first, on the ground of the lack of a proper legal basis, secondly, because the Commission has no power to rectify an earlier decision the text and content of which is incomplete, that is to say, where the decision is seriously and manifestly flawed, and, thirdly, on the ground of infringement of the principle of sound administration; — in the event that the Commission disputes the summary of the facts in paragraph 1 of the application, require the Commission to produce the minutes of the meetings of 30 September and 8 December 2009, together with the annexes thereto; — order the Commission to pay all the costs.

55 The Commission contends, in Case T‑55/10, that the Tribunal should: — dismiss the action in its entirety; — order the applicant to pay the costs.

56 On hearing the report of the Judge-Rapporteur, the Court (Eighth Chamber) decided to open the oral procedure in these cases and, by way of measures of organisation of procedure under Article 64 of its Rules of Procedure, requested the applicant in Case T‑472/09 to lodge a document. The applicant complied within the prescribed period.

57 By order of 14 December 2012, after receiving the observations of the parties, the President of the Eighth Chamber decided to join cases T‑472/09 and T‑55/10 for the purposes of the hearing, pursuant to Article 50 of the Rules of Procedure.

58 The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 29 January 2013.

Law

59 The parties having indicated at the hearing that they had no objection to the joinder of the present cases for the purposes of the judgment, the Court has decided to join these cases for the purposes of the judgment, in accordance with Article 50 of the Rules of Procedure.

1. Case T‑472/09

60 As a preliminary point, it should be observed that the action in Case T‑472/09 comprises three heads of claim, that is to say, an application for a declaration that the first decision is non-existent or for the annulment of the first decision, in the alternative, an application for the annulment of the first decision in so far as concerns the fine imposed on the applicant and, in the further alternative, an application for a reduction in the amount of the fine imposed on the applicant.

61 In support of its action in Case T‑472/09 the applicant puts forward 10 pleas in law. The first alleges infringement of essential procedural requirements. The second alleges a lack of competence on the Commission’s part and an error of law concerning the legal basis taken with regard to the infringement and the fine. The third alleges an inadequate statement of reasons and infringement of Article 23(2) of Regulation No 1/2003 and breach of the principle of equal treatment. The fourth alleges misuse of powers and abuse of procedure. The fifth alleges infringement of Article 65 CS, an inadequate statement of reasons and distortion of the facts. The sixth alleges breach of the principle of sound administration and an inadequate statement of reasons. The seventh plea alleges an error in the legal characterisation of the facts. The eighth alleges infringement of the applicant’s rights of defence. The ninth alleges errors of law and misuse of powers in the application of the increases to the fine and breach of the principle of proportionality. Lastly, the 10th plea alleges that the limitation period in respect of the infringement has expired.

62 At the hearing, in response to a request from the Court to submit observations on the exact scope of its arguments, the applicant clarified that the third and ninth pleas in its application were put forward solely in support of the claims put forward in the alternative, by which it seeks the annulment of the first decision in so far as concerns the fine and, in the further alternative, by which it seeks a reduction in the amount of the fine.

The claim for a declaration that the first decision is non-existent or for the annulment of the first decision

The first plea in law, alleging infringement of essential procedural requirements

63 By its first plea, the applicant alleges several infringements of essential procedural requirements concerning the incomplete nature of the first decision resulting from the absence of the tables which ought to have been set out in the annex to that decision.

64 At the outset, the Commission argues, in its defence, that the applicant failed to set out in its application any arguments in support of its claim for a declaration that the first decision is non-existent. In its rejoinder, it adds that the ‘plea’ concerning the non-existence of the first decision, raised in the reply, was not put forward in the application and must be declared inadmissible in accordance with Article 48(2) of the Rules of Procedure.

65 It must be observed that, under Article 44(1) of the Rules of Procedure of the General Court, the application initiating proceedings must contain a summary of the pleas in law on which it is based. That summary must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to rule on the action, if necessary without any other supporting information. The application must accordingly specify the nature of the grounds on which the action is based, which means that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure. Similar requirements are called for where a submission is made in support of a plea in law (Case T-352/94 Mo och Domsjö v Commission [1998] ECR II-1989, paragraph 333). Moreover, the General Court is obliged to reject as inadmissible a head of claim in an application brought before it if the essential matters of law and of fact on which the head of claim is based are not indicated coherently and intelligibly in the application itself (Case C-214/05 P Rossi v OHIM [2006] ECR I-7057, paragraph 37, and Case C-485/08 P Gualtieri v Commission [2010] ECR I-3009, paragraph 104).

66 Furthermore, under the combined provisions of Article 44(1)(c) and Article 48(2) of the Rules of Procedure, the application initiating proceedings must state the subject-matter of the proceedings and contain a summary of the pleas in law relied on, and no new plea in law may be introduced in the course of the proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. Nevertheless, a plea which may be regarded as amplifying a plea put forward previously, whether directly or by implication, in the originating application, and which is closely connected therewith, will be declared admissible (see Joined Cases T-109/05 and T-444/05 NLG v Commission [2011] ECR II-2479, paragraph 149 and the case-law cited).

67 It must be observed that, in the claims which it sets out in its application the applicant asks the Court to declare the first decision non-existent and, in any event, to annul that decision on the ground of its unlawfulness and formal deficiency, inasmuch as it is incomplete (see paragraph 50 above). However, in the body of that pleading the applicant has not expressly raised any pleas in support of its claim for a declaration as to the non-existence of the first decision.

68 In paragraphs 15 to 18 of its application, the applicant states, in the context of a plea entitled ‘Incomplete nature of the [first decision]. Breach of essential procedural requirements’, that the first decision is missing its annexes, although they are referred to by the Commission in various recitals of the decision in order to support the objections formulated in the decision. It also states, first of all, that the first decision does not enable it to understand the precise terms of the objections in respect of which it has been fined and provides insufficient support for the Commission’s accusations. Next, it asserts that it may reasonably be supposed that the College of Commissioners was asked to adopt a decision on the basis of an incomplete draft. Lastly, it submits that those violations, ‘of unprecedented seriousness and outweighing any other legal considerations’, justify the annulment of the first decision on the ground of breach of essential procedural requirements. In its reply, it emphasises the ‘merits [of its] pleas ... concerning the non-existence or, in the alternative, the unlawfulness of the [first decision]’.

69 At the hearing, the applicant stated, in substance, that, since the first decision had been notified to it without its annexes, it had been unaware, when bringing its action in Case T‑472/09, of the fact that the Commission had actually adopted a decision without annexes and that it realised that only when the amending decision was notified.

70 Without it being necessary to rule on the admissibility of the argument alleging the non-existence of the first decision, it must be held that that argument is unfounded.

71 In addition to the argument referred to in paragraph 67 above, the applicant maintains that the Commission cannot attempt to remedy the deficiencies of the first decision by referring, on the one hand, to the amending decision and, on the other, to the statement of objections, which had been sent to it eight years earlier, since the lawfulness of a decision cannot be assessed by reference to another measure, whether it be a prior or a subsequent measure.

72 In so far as concerns the applicant’s claim that the Court should declare the first decision non-existent, it must be recalled that, according to the case-law of the Court of Justice, acts of the institutions of the European Union are in principle presumed to be lawful and accordingly produce legal effects, even if they are tainted by irregularities, until such time as they are annulled or withdrawn (Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555, paragraph 48; Case C-227/92 P Hoechst v Commission [1999] ECR I-4443, paragraph 69; and Case C-475/01 Commission v Greece [2004] ECR I-8923, paragraph 18).

73 However, by way of exception to that principle, acts tainted by an irregularity whose gravity is so obvious that it cannot be tolerated by the legal order of the European Union must be treated as having no legal effect, even provisional, that is to say, they must be regarded as legally non-existent. The purpose of this exception is to maintain a balance between two fundamental, but sometimes conflicting requirements with which a legal order must comply, namely, stability of legal relations and respect for legality (Commission v BASF and Others, cited in paragraph 72 above, paragraph 49, and Hoechst v Commission, cited in paragraph 72 above, paragraph 70).

74 The gravity of the consequences attaching to a finding that an act of an EU institution is non-existent means that, for reasons of legal certainty, such a finding is to be reserved for quite extreme situations (Commission v BASF and Others, cited in paragraph 72 above, paragraph 50, and Hoechst v Commission, cited in paragraph 72 above, paragraph 76).

75 It must immediately be observed in this case that the irregularities to which the applicant refers do not appear to be of such obvious gravity that the first decision must be regarded as legally non-existent.

76 First of all, the applicant asserts that the first decision does not enable it to understand the precise terms of the objections in respect of which it has been fined and provides insufficient support for the Commission’s accusations. It expressly refers in this connection to recitals 496, 515 and 516 of and footnote 102 to the first decision.

77 When questioned on this point at the hearing, the applicant made it clear that, by this complaint, it sought only to take issue with the Commission’s observance of the duty to state reasons.

78 It must be recalled that, according to settled case-law, the statement of reasons must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent European Union Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 15 CS must be assessed with regard not only to its wording but also to its context and all the legal rules governing the matter in question (see, to that effect, Case T-57/91 NALOO v Commission [1996] ECR II-1019, paragraph 298, and Joined Cases T-45/98 and T-47/98 Krupp Thyssen Stainless and Acciai speciali Terni v Commission [2001] ECR II-3757, paragraph 129; see also, by analogy, Case C-367/95 P Commission v Sytraval and Brink’s France [1996] ECR I-1719, paragraph 63, and Case C-280/08 P Deutsche Telekom v Commission [2010] ECR I-9555, paragraph 131 and the case-law cited).

79 Moreover, in the context of individual decisions, it is settled case-law that the purpose of the obligation to state reasons for an individual decision is both to enable the Court to review the legality of the decision and to provide the person concerned with sufficient information to make it possible to ascertain whether the decision may be vitiated by a defect which may permit its legality to be contested (see Case C-521/09 P Elf Aquitaine v Commission [2011] ECR I-8947, paragraph 148 and the case-law cited).

80 The statement of reasons must, therefore, in principle be notified to the person concerned at the same time as the decision adversely affecting him (Elf Aquitaine v Commission, cited in paragraph 79 above, paragraph 149).

81 It must be acknowledged that the first decision did not include its annexes, which contained various tables to which reference was made in recitals 451 (table 13), 513 (tables 1 and 3), 515 (tables 1 to 3), 516 (tables 9, 11 to 14 and 16) and 518 (tables 11, 12 and 14) of the first decision as well as in footnotes 102 (tables 15 to 17), 127 (tables 18 to 21), 198 (tables 22 and 23), 264 (tables 24 and 25), 312 (table 26), 362 (table 27), 405 (table 28), 448 (tables 29 and 30) and 563 (all the tables annexed to the decision) to the first decision. The Commission states in this connection that the tables had been created in order to provide a fast, easy reference to the price variations mentioned in the first decision and that they merely reproduced in schematic form the information and data presented in the case file.

82 It is therefore necessary to verify whether, irrespective of the absence of the tables mentioned in paragraph 81 above, the relevant recitals of the first decision, in which the tables were referred to as support, disclosed in a clear and unequivocal fashion the reasoning followed by the Commission and enabled the applicant to ascertain the reasons for the measure.

83 It must be observed at the outset that, as the Commission points out, all of the missing tables had been annexed to the statement of objections and the applicant was aware of their content, having annexed the tables to its own application and having referred to them in paragraphs 83, 98, 100, 101 and 125 of its application.

84 It must also be emphasised that, in the amending decision, the Commission did not change all the references to the missing tables given in the first decision, only the references given in footnotes 102, 127, 198, 264, 312, 362, 405 and 448 to the first decision.

85 First, as regards tables 15 to 17 (mentioned in footnote 102 to the first decision), it must be observed that, according to that footnote, these contain ‘data on the changes in the size extras occurring in the reinforcing bar industry in Italy from December 1989 to June 2000’. The Commission mentioned these tables in support of the first sentence of recital 126 of the first decision, which reads as follows: ‘During the first meeting of which the Commission is aware (that of 6 December 1989 at [Associazione Industriale Bresciana]), those taking part unanimously decided to increase the size extras for reinforcing bar for both bars and coils intended for the Italian market (+ ITL 10/kg for extras from 14 to 30 mm, + ITL 15/kg for those from 8 to 12 mm, + ITL 20/kg for those from 6 mm; all increased by ITL 5/kg for material in coils) with effect from 11 December 1989.’

86 It must be observed that the Commission expressly stated in that recital the increases in the size extras for reinforcing bar that had been decided on by those attending the meeting of 6 December 1989, along with the date on which those increases were to take effect. Moreover, in so far as concerns subsequent increases, which, according to footnote 102 to the first decision, were also set out in these tables (inasmuch as the tables cover the period 1989 to 2000), it should be pointed out they are not dealt with in section 4.1 of the first decision (in which recital 126 falls), which addresses the conduct of the firms between 1989 and 1992. In any event, these increases are also mentioned in recitals 126 to 128 and 133 (for the years 1989-1992), 93 and 94 (for the years 1993-1994), 149 to 151, 162 and 163 (for 1995), 184 and 185 (for 1996), 199, 200 and 213 (for 1997), 269 (for 1999) and 296 to 304 (for 2000) as well as in recitals 439 and 515 of the first decision.

87 Second, in so far as concerns tables 18 to 21, mentioned in footnote 127 to the first decision, it must be observed that, according to that footnote, these contain ‘data relating to the basic list prices or prices communicated to agents relating to the period end 1989/end 1992 ... in the Commission’s possession’. The Commission mentioned these tables in support of recital 131 of the first decision, which reads as follows: ‘As far as the base prices for reinforcing bar during the period of the aforesaid agreement are concerned, IRO and (the former) Ferriera Valsabbia applied a price of ITL 210/kg with effect from 16 April 1992 and a price of ITL 225/kg from 1/6 May 1992. IRO, (the former) Ferriera Valsabbia, Acciaieria di Darfo and Acciaierie e Ferriere Leali Luigi applied the price of ITL 235/kg from 1/8 June 1992.’

88 It must, therefore, be observed that, referring also to the five pages in the administrative file which it mentions in footnote 126 to the first decision, the Commission expressly stated in recital 131 the base prices which had been set by the undertakings mentioned therein, along with the dates on which those prices took effect. It should also be pointed out that, in recital 419 of the first decision, the Commission stated that the first activity relating to the fixing of the base price had taken place by 16 April 1992 at the latest. Any data set out in tables 18 to 21 of the first decision, relating, according to footnote 127 to the decision, to the base price for the period ‘end 1989’ to 16 April 1992 is therefore irrelevant to the proper understanding of the points made by the Commission in recital 131 of the first decision.

89 Third, as regards tables 22 and 23, referred to in footnote 198 to the first decision, it must be observed that, according to that footnote, these contain ‘data relating to the base prices in the price list or communicated to agents relating to 1993 and 1994 ... in the Commission’s possession’. The Commission mentioned these tables in support of recital 145 of the first decision, which reads as follows: ‘As specified in the fax from Federacciai on 25 November 1994, a further meeting was held in Brescia on 1 December 1994 where the decisions specified in another fax from Federacciai were taken, received by the companies on 5 December 1994. These decisions related to: — the prices for reinforcing bar (ITL 320/kg base ex Brescia, with immediate effect); — payments (from 1 January 1995 the maximum period would be 60/90 days from the end of the month, from 1 March 1995 the period would be reduced to 60 days) and discounts; — output (with an obligation for each company to notify Federacciai of the tonnes of reinforcing bar produced in September, October and November 1994 and by 7 December 1994). Alfa Acciai Srl adopted the new base price on 7 December 1994. On 21 December 1994 it was also adopted by Acciaieria di Darfo SpA, and Alfa Acciai Srl confirmed the same price. The base price from [Lucchini-SP] for January 1995 was also ITL 320/kg.’

90 It must be emphasised in this connection that the Commission mentioned the tables referred to in footnote 198 to the first decision in support of its assertion that ‘Alfa Acciai Srl [had] adopted the new base price on 7 December 1994’, ‘[o]n 21 December 1994 it [had] also [been] adopted by Acciaieria di Darfo SpA, and Alfa Acciai Srl [had] confirmed the same price’. That ‘new base price’ and that ‘same price’ were the price of ITL 320/kg mentioned in the first indent of recital 145. Any data set out in tables 22 and 23 of the first decision, relating to the base price for the period 1993 to 7 December 1994 is therefore irrelevant to the proper understanding of the points made by the Commission in recital 145 of the first decision.

91 Fourth, in so far as concerns tables 24 and 25, mentioned in footnote 264 to the first decision, it must be observed that, according to that footnote, these contain ‘data relating to the list base prices or prices communicated to agents (and, in the case of Lucchini Siderurgica SpA, those relating to the monthly situation) for 1995 in the possession of the Commission’. The Commission mentioned these tables in support of recital 174 of the first decision, which reads as follows: ‘Subsequently, in a document from early October 1995, in the possession of Federacciai (handwritten by the secretary of the acting Director-General) it is stated that: — customers were arguing over payments (hence the need for a communication confirming firmness over payments), — since the previous week the price of reinforcing bar had come down by a further ITL 5/10/kg, lying between ITL 260/270/kg in the Brescia area with quotations below ITL 250/kg outside that area, — the rather confused market situation made it difficult to give an accurate indication of price, and — companies would have to be asked for data for orders in week 39 (from 25 to 29 September 1995) and week 40 (from 2 to 6 October 1995).’

92 It must, therefore, be observed that, in recital 174 of the first decision, the Commission merely gave an account of the content of a document handwritten by the secretary of the acting Director-General in October 1995. In that context, the Commission referred to tables 24 and 25 in support of the statement made in the handwritten document that ‘the rather confused market situation made it difficult to give an accurate indication of price’. Tables 24 and 25 therefore appear to be irrelevant to the proper understanding of the points made by the Commission in recital 174 of the first decision.

93 Fifth, in so far as concerns table 26, mentioned in footnote 312 to the first decision, it must be observed that, according to that footnote, it contains ‘data relating to the list base prices or those communicated to agents (and in the case of Lucchini Siderurgica SpA, also those relating to its monthly statement) for 1996 ... in the Commission’s possession’. The Commission mentioned this table in support of its assertion in recital 200 of the first decision that ‘[d]uring the period from 22 October 1996 to 17 July 1997 there [had been] at least twelve meetings of the companies’ commercial managers ... held [inter alia] on ... Tuesday 22 October 1996 at which the price of ITL 230/kg ex Brescia [had been] reconfirmed for the month of November 1996 and the quotation of ITL 210/kg [had been] maintained solely for deliveries in October’.

94 It must, therefore, be held that, notwithstanding the absence of table 26 from the first decision, the Commission expressly mentioned, in recital 200 of the decision, the base prices for the period in question and the date on which they took effect.

95 Sixth, in so far as concerns table 27, mentioned in footnote 362 to the first decision, according to that footnote, it contains ‘data relating to the list base prices or prices communicated to agents (and, in the case of Lucchini Siderurgica SpA, those relating to the monthly situation too) for 1997 ... in the Commission’s possession’. The Commission mentioned this table in support of recital 216 of the first decision, which reads as follows: ‘However, [Lucchini-SP ...], Acciaieria di Darfo SpA, Alfa Acciai Srl, Feralpi Siderurgica Srl, IRO, Riva Prodotti Siderurgici SpA and (the former) Ferriera Valsabbia SpA are the seven companies which received a communication (dated 24 November 1997) from Pierluigi Leali relating to the “PRICE/DELIVERY AGREEMENT” ... “The price of ITL 270/kg was only requested, without any result” — the communication continued — “by a couple of manufacturers while in reality, as stated several times in the course of that meeting of commercial managers, the quotation had settled to ITL 260/kg and occasionally less. We find with some satisfaction, however, that the fall has stopped as a result of the quota allocation of deliveries which all are respecting and which, as agreed, will be checked by external inspectors appointed for that purpose”. “At the end of this month” — the communication continued — “which is dragging on through inertia, it will be essential to act immediately to buttress the minimum quotation of ITL 260/kg (which would certainly not have affected the few purchases during the period). With the planning of deliveries in December agreed (- 20% over the quota for November) we are certainly in a position to maintain the price level agreed; it is however essential” — Pierluigi Leali concluded — “that no one accepts any exceptions to the minimum price decided (ITL 260/kg).”’

96 It is therefore clear from the wording of that recital that the Commission was merely setting out the wording of the communication of 24 November 1997 mentioned in the recital. Table 27 therefore appears to be irrelevant to the proper understanding of the points made by the Commission in recital 216 of the first decision.

97 Seventh, as regards table 28, mentioned in footnote 405 to the first decision, it must be observed that, according to that footnote, it contains ‘data relating to the list base prices or prices communicated to agents (and for Lucchini/Siderpotenza also those relating to the monthly situation) for 1998 ... in the Commission’s possession’. The Commission mentioned this table in support of recital 241 of the first decision, which reads as follows: ‘On 11 September 1998 Pierluigi Leali sent a communication ... in which, referring to the express intent to maintain the minimum quotation at “ITL 170 ex base” (at a meeting held on 9 September 1998), there had been “anomalous activities, i.e. quotations on average ITL 5/kg less than the level established which had become even greater in some areas of the south”. “For our part” — Pierluigi Leali wrote — “the minimum agreed level will be maintained with a consequent reduction in the flow of orders.”“We hope” — the communication ended — “that at the meeting between commercial managers on Tuesday 15th of this month we will achieve a substantial holding of prices, which will have an effect on a possible recovery of the quotation.”’

98 It is therefore clear from the wording of that recital that the Commission was merely setting out the content of the communication of 11 September 1998 mentioned in the recital. Table 28 therefore appears to be irrelevant to the proper understanding of the points made by the Commission in recital 241 of the first decision.

99 Eighth, as regards tables 29 and 30, mentioned in footnote 448 to the first decision, it must be observed that, according to that footnote, they contain ‘data relating to list base prices or prices communicated to agents (and in the case of Lucchini/Siderpotenza those relating to the monthly situation too) for 1999 and 2000 in the possession of the Commission’. The Commission mentioned those tables in support of recital 276 of the first decision, which reads as follows: ‘Further information on the market situation for reinforcing bar in Italy during this period is included in a document drawn up by Leali on 10 November 1999 and in particular in the section entitled “Benefits and limitations of the commercial agreement in 1999” which states “The basic agreement reached between national manufacturers has made it possible to reverse the situation of price weakness which was a feature of the two previous years 1997 and 1998 and to recover a gross margin of over ITL 50/kg in the course of 1999. During 1998 the average gross margin (selling price — cost of raw materials) was ITL 70/kg, and for a good five months it fell below that threshold.”“The agreement reached has made it possible to stabilise selling prices in the course of the year, and manufacturers have been able to benefit from the situation as regards the costs of raw material, increasing gross margin by a further ITL 50/kg, raising it to a net ITL 122/kg.”’

100 It is therefore clear from the wording of recital 276 of the first decision that the Commission was merely setting out the content of the communication of 10 November 1999 mentioned in the recital. The absence of tables 29 and 30 is therefore irrelevant to the proper understanding of the points made by the Commission in recital 276 of the first decision.

101 Ninth, table 13, mentioned in recital 451 of the first decision, is referred to in support of the assertions that, ‘[a]s far as 1997 is concerned, it [was to] be noted that the first half of this year [had been] marked by a constant increase in the base price fixed through the anti-competitive agreement: ITL 190/kg fixed at the meeting on 30 January, ITL 210/kg fixed at the meeting on 14 February, ITL 250/kg fixed at the meeting on 10 July (paragraph (200))’ and that, ‘[d]uring the same period, the average market base price [had] also increased constantly from ITL 170/kg in January to ITL 240/kg in July (Table 13 of the annexes); in September of that year the average market base price increased again, reaching ITL 290/kg (Table 13 of the annexes)’. It must therefore be observed that the Commission expressly set out, in that recital, the increases in the base prices for the year 1997 and that the table is not therefore indispensable to a proper understanding of the Commission’s reasoning.

102 Tenth, it must be pointed out that, in recital 496 of the first decision (footnote 563 to the first decision), the Commission referred generally to ‘the tables annexed to this decision’ in support of its assertion that ‘[t]he information in [its] possession ... [showed] that all the companies involved in this proceeding [had] published price lists during the period in question’. Nevertheless, it must be emphasised that recital 496 of the first decision also refers to recitals 419 to 433 thereof, which ‘list all the occasions where there is evidence that the base price was discussed by the companies (and the trade association)’. The Commission stated, in this connection, that ‘[s]ome of these occasions [had] been mentioned in connection with the question of common intent (see paragraphs 473-475), that ‘[o]n the other occasions between 1993 and 2000, what took place [had] to be described as consultation’ and that ‘[t]he aim of this consultation was to influence the behaviour of the manufacturers on the market and make manifest the behaviour each of them proposed adopting on the market, basically in connection with fixing the base price’. It is therefore apparent that the series of tables annexed to the first decision was therefore not indispensible to the proper understanding of the objections put forward by the Commission.

103 Eleventh, in so far as concerns the references to tables 1 to 3, 9, 11 to 14 and 16 made in recitals 513, 515, 516 and 518 of the first decision, it must be emphasised that those recitals appear within the section of the first decision concerned with the effects on the market of the restrictive practices, and that it is clear from the content of those recitals that the tables to which they refer either restate the figures mentioned in the recitals or are not indispensible to a proper understanding of the Commission’s reasoning with regard to the effects of the cartel.

104 Having regard to the foregoing considerations, it cannot be held that the failure to annex the tables referred to in paragraph 81 above to the first decision prevented the applicant from understanding the objections set out in the first decision.

105 Secondly, the applicant maintains that, given the absence of the aforementioned tables, it may be supposed that the College of Commissioners was asked to adopt a decision without full knowledge of the facts on which the measure was based and that, consequently, the first decision should be annulled.

107 Irrespective of the absence of the aforementioned tables, the facts on which the first decision was based are therefore set out to the requisite legal standard in the text of the decision itself (see paragraphs 76 to 104 above). Consequently, it cannot be claimed that, when it adopted the first decision, the College of Commissioners did not have full knowledge of the facts on which the measure was based. The omission was, therefore, incapable of vitiating the procedure by which the first decision was adopted and thus calling into question the decision’s legality.

108 The first plea in law must therefore be rejected.

The second and fourth pleas in law, alleging a lack of competence on the Commission’s part and an error of law concerning the legal basis taken with regard to the infringement and the fine, misuse of powers and abuse of procedure

109 It is appropriate to examine together the second and fourth pleas for the annulment of the decision, which allege a lack of competence on the Commission’s part and an error of law concerning the legal basis taken with regard to the infringement and the fine, misuse of powers and abuse of procedure, since, in substance, they both raise the issue of the Commission’s competence to adopt the first decision.

110 In the context of its second plea, the applicant argues that the first decision should be annulled since, in that decision, the Commission imposed a fine without any legal basis, which is contrary to the principle that offences and punishments are to be strictly defined by law (nullum crimen, nulla poena sine lege) and inconsistent with the institutional framework on which the Treaties are based and in accordance with which the autonomous powers of the Commission are strictly circumscribed by the competences conferred upon it. The ECSC Treaty expired on 23 July 2002 and the Commission therefore no longer had competence either to impose fines under Article 65 CS or indeed to find infringements of that provision, since it was no longer in force.

111 First of all, the applicant submits that, in accordance with the principle of the lawfulness of penalties, a person cannot be punished for an action which, when judgment is given, is no longer unlawful. That principle means that there can be no punishment unless the action in question was unlawful not only when it was committed but also when it was formally punished. The Commission was therefore not entitled to penalise the applicant on the basis of Article 65 CS.

112 Next, in accordance with the principle of the lawfulness of penalties and the principle of conferred powers enshrined in the first paragraph of Article 5 EC, the Commission cannot, the applicant submits, found the imposition of a fine on the ‘mismatched’ application of Article 23 of Regulation No 1/2003 and Article 65 CS, there being no reference to that latter provision in the regulation.

113 Lastly, the lawfulness of EU acts must be assessed in the light of international law and, in particular, Article 70 of the Vienna Convention on the Law of Treaties of 23 May 1969, under which a convention between States that has expired can no longer serve as the basis for obligations on the part of those who were parties to or subject to it or establish jurisdiction for its bodies. Accordingly, the Commission would have been entitled to apply Article 65 CS retroactively only if there had been a transitional provision relating to the ECSC Treaty provisions on competition, which there was not. Contrary to the Commission’s submission, the EC Treaty and the ECSC Treaty constitute separate legal orders.

114 Moreover, the Commission cannot rely on the ‘general legal principle of the hierarchy that places the lex generalis over the lex specialis’ or on the Communication of 18 June 2002.

115 In the context of its fourth plea, the applicant maintains that the procedure which led to the adoption of the first decision was conducted on the basis of Regulation No 17, then Regulation No 1/2003. However, those regulations provide no framework for the continuation under a procedure based on the EC Treaty of a procedure initiated under the ECSC Treaty, nor do they allow for the adoption of a decision concerning infringements of the ECSC Treaty, since they do not cover such infringements. In the absence of any legal rule to that effect, the continuation of the procedure and the use, in the context of a procedure under the EC Treaty, of documents obtained pursuant to the provisions of the ECSC Treaty constitute a misuse of powers and an abuse of procedure.

– The choice of the legal basis for the first decision

116 It should be pointed out that the Community Treaties established a new legal order for the benefit of which the States have limited their sovereign rights in ever wider fields and the subjects of which comprise not only Member States but also their nationals (see, to that effect, Case 26/62 Van Gend & Loos [1963] ECR 1, Case 6/64 Costa [1964] ECR 585, at 593, Opinion 1/91 [1991] ECR I-6079, paragraph 21, SP and Others v Commission, cited in paragraph 22 above, paragraph 70, and Case T-24/07 ThyssenKrupp Stainless v Commission [2009] ECR II-2309, paragraph 63).

117 Within that legal order, the institutions have conferred powers only. For that reason, Community measures refer in their preamble to the legal basis which enables the institution concerned to act in the field in question. The choice of the appropriate legal basis has constitutional significance (see SP and Others v Commission, cited in paragraph 22 above, paragraph 71, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 64 and the case-law cited).

118 In the present case, it must be observed that the preamble to the first decision contains references to provisions of the ECSC Treaty, namely Articles 36 CS, 47 CS and 65 CS, but also to the EC Treaty, to Regulation No 17, in particular Article 11 thereof, to Articles 7(1), 18 and 23(2) of Regulation No 1/2003 and to Commission Regulation (EC) No 2842/98 of 22 December 1998 on the hearing of parties in certain proceedings under Articles [81 EC] and [82 EC] (OJ 1998 L 354, p. 18).

119 It is also important to point out that, in the statement of reasons for the first decision, the Commission indicated, in recital 1, that ‘[t]he ... decision [established] an infringement of Article 65(1) [CS] and [was] adopted on the basis of Article 7(1) of Regulation No 1/2003’. In recital 3 of the first decision, the Commission added that ‘[b]y the ... decision [it imposed] fines on the undertakings to which it [was] addressed pursuant to Article 23(2) of Regulation No 1/2003’.

120 In recital 350 of the first decision, the Commission accordingly stated that it considered that ‘Article 7(1) and 23(2) of Regulation No 1/2003 [represented] the appropriate legal bases which [empowered] it to adopt [the] decision’ and that, ‘[o]n the basis of Article 7(1), [it had established] an infringement of Article 65(1) [CS] and [required] the addressees of the ... decision to put an end to it, and on the basis of Article 23(2) it [had imposed] fines upon them’ (see also recital 361 of the first decision).

121 That being so, it must be held that the legal basis of the first decision, by which the Commission found that there had been an infringement of Article 65(1) CS and imposed a fine on the applicant, is to be found in Article 7(1) of Regulation No 1/2003 as regards the finding of the infringement, and in Article 23(2) of Regulation No 1/2003 as regards the imposition of the fine.

– The Commission’s power to find and penalise, on the basis of Regulation No 1/2003, an infringement of Article 65(1) CS after the expiry of the ECSC Treaty

122 First of all, it must be recalled that the provision which forms the legal basis of an act and empowers the Union institution to adopt the act in question must be in force at the time when the act is adopted (Case C-269/97 Commission v Council [2000] ECR I-2257, paragraph 45, Joined Cases C-201/09 P and C-216/09 P ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others [2011] ECR I-2239, paragraph 75, Case C-352/09 P ThyssenKrupp Nirosta v Commission [2011] ECR I-2359, paragraph 88, SP and Others v Commission, cited in paragraph 22 above, paragraph 118, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 74). That is indisputably the case in so far as concerns Article 7(1) and Article 23(2) of Regulation No 1/2003, which form the legal basis of the first decision.

123 Secondly, it is important to emphasise that, contrary to the applicant’s assertion, the Community Treaties established a single legal order in which, as is reflected in Article 305(1) EC, the ECSC Treaty constituted a specific regime derogating from the rules of general application established by the EC Treaty (see Case T-405/06 ArcelorMittal Luxembourg and Others v Commission [2009] ECR II-771, paragraph 57, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 75 and the case-law cited).

124 Contrary to the applicant’s assertions, by virtue of Article 305(1) EC, the ECSC Treaty thus constituted a lex specialis derogating from the lex generalis of the EC Treaty (Case 239/84 Gerlach [1985] ECR 3507, paragraphs 9 to 11, Opinion 1/94 [1994] ECR I-5267, paragraphs 25 to 27, SP and Others vCommission, cited in paragraph 22 above, paragraph 111, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 76, confirmed on appeal by ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraphs 70 and 73).

125 It follows that the rules of the ECSC Treaty and all the provisions adopted in implementation of that treaty remained in force as regards the functioning of the common market, notwithstanding the supervening EC Treaty (Gerlach, cited in paragraph 124 above, paragraph 9, Joined Cases C-74/00 P and C-75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I-7869, paragraph 100, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 77, confirmed on appeal by ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraphs 70 and 73).

126 Nevertheless, in so far as matters were not the subject of provisions in the ECSC Treaty or of rules adopted under it, the EC Treaty and the provisions adopted for its implementation could, even before the expiry of the ECSC Treaty, apply to products covered by the ECSC Treaty (Case 328/85 Deutsche Babcock [1987] ECR 5119, paragraph 10, Falck and Acciaierie di Bolzano v Commission, cited in paragraph 125 above, paragraph 100, judgment of 25 October 2007 in Case T‑94/03 Ferriere Nord v Commission, not published in the ECR, paragraph 83, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 78, confirmed on appeal by ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraphs 70 and 73).

127 Pursuant to Article 97 thereof, the ECSC Treaty expired on 23 July 2002. Consequently, on 24 July 2002, the scope of the general scheme resulting from the EC Treaty was extended to the sectors which were initially governed by the ECSC Treaty (ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above, paragraph 58, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 79, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraphs 59 and 63, and ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraphs 70 and 73).

128 Although the change from the legal framework of the ECSC Treaty to that of the EC Treaty has led, since 24 July 2002, to a change of legal bases, procedures and applicable substantive rules, that change is part of the unity and continuity of the Community legal order and its objectives (Case T-25/04 González y Díez v Commission [2007] ECR II-3121, paragraph 55, ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above, paragraph 59, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 80, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraphs 60 and 63, and ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraphs 71 and 73).

129 In this connection, it must be observed that the introduction and maintenance of a system of free competition, within which the normal conditions of competition are safeguarded and which is at the origin of the rules on State aid and cartels between undertakings, is one of the essential objectives of both the EC Treaty and the ECSC Treaty (ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above, paragraph 60, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 81 and the case-law cited, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraphs 60 and 63, and ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraphs 71 and 73).

130 In that context, although the rules of the ECSC and the EC Treaties governing the sphere of collusive conduct between undertakings diverge to a certain extent, it must be emphasised that the concepts of agreements and concerted practices within the meaning of Article 65(1) CS correspond to those on collusive conduct and concerted practices within the meaning of Article 81 EC and that both provisions have been interpreted in the same way by the EU judicature. Thus, the pursuit of the objective of undistorted competition in the sectors which initially fell within the common market in coal and steel is not suspended by the fact that the ECSC Treaty has expired, since that objective is also pursued in the context of the EC Treaty, by the same institution, namely the Commission, the administrative authority responsible for implementing and developing competition policy in the general interest of the European Community (ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above, paragraph 61, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 82 and the case-law cited, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraphs 60 and 63, and ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraphs 71 and 73).

131 The continuity of the Community legal order and the objectives which govern its functioning thus require that, in so far as it succeeds the European Coal and Steel Community and in its own procedural framework, the European Community ensures, in respect of situations which came into being under the ECSC Treaty, compliance with the rights and obligations which applied eo tempore to both Member States and individuals under the ECSC Treaty and the rules adopted for its application. That requirement applies all the more in so far as the distortion of competition resulting from non-compliance with the rules on agreements and collusive conduct between undertakings is liable to extend its effects to a time after the expiry of the ECSC Treaty when the EC Treaty applies (see ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above, paragraph 63, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 83 and the case-law cited, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraphs 62 and 63, and ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraphs 72 and 73).

132 The Court of Justice has also pointed out that the succession of the ECSC, EC and FEU Treaties ensures, in order to guarantee free competition, that any conduct corresponding to the factual elements set out in Article 65(1) CS, whether taking place before or after 23 July 2002, could be and still can be penalised by the Commission (ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraphs 65 to 67 and 77, and ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraphs 55 to 57 and 65).

133 Moreover, it follows from the case-law that, in accordance with a principle common to the legal systems of the Member States whose origins may be traced back to Roman law, when legislation is amended, unless the legislature expresses a contrary intention, the continuity of the legal system must be ensured, and that that principle applies to amendments to the primary law of the European Union (Case 23/68 Klomp [1969] ECR 43, paragraph 13, and ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraph 63).

134 There is no indication that the EU legislature wished it to be possible for concerted practices prohibited under the ECSC Treaty entirely to escape the application of penalties after that treaty expired (ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraph 64).

135 First, the Court of Justice has pointed out that the Council and the representatives of the governments of the Member States had indicated that they were ready to adopt all necessary measures to cope with the consequences of the expiry of that treaty. Secondly, it has emphasised that the Commission had stated that it had to put forward proposals for transitional provisions only if such a step was thought to be necessary, and that, having regard to the general principles of law applicable, it had considered that there was no such necessity in the field of the law on cartels (ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraph 75).

136 Consequently, the appellant cannot derive any valid argument from the lack of transitional provisions in this field (see, to that effect, ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraph 76).

137 That being so, it would be contrary to the objectives and the coherence of the Treaties and irreconcilable with the continuity of the legal order of the European Union if the Commission were not to have jurisdiction to ensure the uniform application of the rules deriving from the ECSC Treaty which continue to produce effects even after the expiry of that treaty (see, to that effect, Case C-119/05 Lucchini [2007] ECR I-6199, paragraph 41).

138 It follows from the foregoing that, contrary to the applicant’s contention, Regulation No 1/2003 and, more particularly, Article 7(1) and Article 23(2) thereof, must be interpreted as enabling the Commission to find and penalise, after 23 July 2002, cartels in the sectors falling within the scope of the ECSC Treaty ratione materiae and ratione temporis, even though those provisions of Regulation No 1/2003 do not expressly refer to Article 65 CS (see ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above, paragraph 64, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 84 and the case-law cited, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraph 74, and ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraphs 72, 73 and 84).

139 It must, therefore, be held in this connection that the applicant’s argument that the Communication of 18 June 2002 was not capable of forming a legal basis for the Commission’s application of Article 65 CS is of no relevance, since the Commission’s competence in this case is not based on that communication, but on the provisions of Regulation No 1/2003 referred to above (see, to that effect, ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 71). Moreover, the arguments by which the applicant seeks to establish that the ‘automatic, informal continuation ... of [an ECSC] procedure as an EC procedure’ constitutes a misuse of powers and an abuse of procedure must accordingly be rejected also.

140 In addition, the application, within the EU legal order, of rules of the EC Treaty in a field which was originally governed by the ECSC Treaty must take effect in conformity with the principles governing the temporal application of the law. In this connection, it is settled case-law that, while procedural rules are generally held to apply to all disputes pending at the time when such rules enter into force, that is not the case with substantive rules. The latter must, in order to ensure observance of the principles of legal certainty and the protection of legitimate expectations, be interpreted as applying to situations existing before their entry into force only in so far as it is clear from their wording, objectives or general scheme that such an effect must be given to them (Joined Cases 212/80 to 217/80 Meridionale Industria Salumi and Others [1981] ECR 2735, paragraph 9, Case 21/81 Bout [1982] ECR 381, paragraph 13, Case T-42/96 Eyckeler & Malt v Commission [1998] ECR II-401, paragraph 55, ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above, paragraph 65, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 85, confirmed on appeal by ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraph 79).

141 From that point of view, as regards the question of the substantive provisions applicable to a legal situation which was definitively established before the expiry of the ECSC Treaty, the continuity of the EU legal order and the requirements relating to the principles of legal certainty and the protection of legitimate expectations require the application of substantive provisions drawn from the ECSC Treaty to the facts which fall within their scope of application ratione materiae and ratione temporis. The possibility that, by reason of the expiry of the ECSC Treaty, the regulatory framework in question is no longer in force at the time when the assessment of the factual situation is carried out does not alter that situation since the assessment concerns a legal situation which was definitively established at a time when substantive provisions adopted under the ECSC Treaty were applicable (ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above, paragraph 66, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 86, confirmed on appeal by ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraph 79; see also, to that effect, Ferriere Nord v Commission, cited in paragraph 126 above, paragraph 96).

142 In the present case, as regards the substantive rules, it must be observed that the first decision concerns a legal situation which had definitively come into being before the ECSC Treaty expired on 23 July 2002, the infringement spanning the period from 6 December 1989 to 4 July 2000 (see paragraph 39 above). In the absence of any retroactive effect of the substantive competition law applicable since 24 July 2002, it must be held that Article 65(1) CS is the substantive rule applicable and actually applied by the Commission in the first decision, bearing in mind that it follows precisely from the lex generalis nature of the EC Treaty by comparison with the ECSC Treaty, enshrined in Article 305 EC, that the specific regime resulting from the ECSC Treaty and from the rules enacted for its implementation is, in accordance with the principle lex specialis derogat legi generali, alone applicable to situations which came into being prior to 24 July 2002 (see, to that effect, ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above, paragraph 68, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 89, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraph 77, and ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraph 79).

143 The applicant cannot, therefore, maintain that, in accordance with the principle that offences and punishments are to be strictly defined by law, there can be no punishment unless the action in question was unlawful not only when it was committed but also when it was formally punished. Nor can it claim that the Commission could have penalised the undertakings in question under Article 81 EC after demonstrating that the conditions for applying that provision were satisfied in fact and law.

144 Moreover, the Court has pointed out that the principle that offences and punishments are to be strictly defined by law, as enshrined in particular in Article 49(1) of the Charter of Fundamental Rights of the European Union, requires that EU rules define offences and penalties clearly (see ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraph 80 and the case-law cited).

145 In so far as the Treaties defined clearly, before the material time, the infringements and the nature and extent of the penalties which could be imposed in respect of them, the above principles do not aim to guarantee to undertakings that subsequent amendments to the legal bases and procedural rules will enable them to escape all penalties relating to their past infringements (ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraph 70, and ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraph 83).

146 It must be observed that a diligent undertaking in the applicant’s position could not at any time have been unaware of the consequences of its conduct or count on the fact that the change from the legal framework of the ECSC Treaty to that of the EC Treaty would have the consequence of allowing it to escape all penalties for infringements of Article 65 CS committed in the past (ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraph 73, and ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraph 86).

147 Moreover, the first decision was adopted on the basis of Article 7(1) and Article 23(2) of Regulation No 1/2003, following a procedure carried out in accordance with Regulation No 17 and Regulation No 1/2003. The provisions concerning the legal basis and the procedure followed up to the adoption of the first decision fall within the scope of procedural rules for the purposes of the case-law referred to in paragraph 140 above. Since the first decision was adopted after the expiry of the ECSC Treaty, the Commission was right to apply the rules contained in Regulation No 1/2003 (see ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 123 above, paragraph 67, and ThyssenKrupp Stainless v Commission, cited in paragraph 116 above, paragraph 87 and the case-law cited, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 122 above, paragraphs 74 and 77, and ThyssenKrupp Nirosta v Commission, cited in paragraph 122 above, paragraph 90; see also, to that effect, Ferriere Nord v Commission, cited in paragraph 126 above, paragraph 96).

148 The second and fourth pleas must therefore be rejected.

The fifth plea, alleging infringement of Article 65 CS, an inadequate statement of reasons and distortion of the facts

149 The applicant claims that the first decision is vitiated by an infringement of Article 65 CS, an inadequate statement of reasons and distortion of the facts.

150 First of all, the applicant argues that, despite the similarities between Article 65 CS and Article 81 EC, those provisions are not interchangeable. Whereas, under Article 81 EC, an anti-competitive agreement may be the subject of legal proceedings if there is so much as an attempt to conclude an agreement, an agreement that is not reflected in the market, even as a mere tendency, does not appear to fall within the scope of Article 65 CS. However, in the first decision, the Commission failed to adduce evidence of any objective effects on the market for reinforcing bars.

151 That argument must be rejected. Indeed, it is clear from the case-law that Article 65(1) CS prohibits agreements which ‘tend’ to prevent, restrict or distort normal competition. It follows that that provision prohibits agreements the purpose of which is to restrict competition but the anti-competitive effects of which have not been established. Since the Commission found, in recital 399 of the first decision, that the agreement had been designed to fix prices on the basis of which the restriction or control of production and/or sales was also agreed, it was not obliged to demonstrate that there had been an adverse effect on competition in order to establish an infringement of Article 65(1) CS (Case C-198/99 P Ensidesa v Commission [2003] ECR I-11111, paragraphs 59 and 60, and Case T-141/94 Thyssen Stahl v Commission [1999] ECR II-347, paragraph 277) (see also recital 463 of the first decision). In any event, contrary to the applicant’s claim, the Commission did examine, in the interests of completeness, the effects of the agreement and concluded, on the basis of the facts and matters set out in recitals 513 to 524 of the first decision, that the agreement had had actual effects. In order to dispute that conclusion, in Case T‑472/09, the applicant merely argues, in the context of the present plea, that purchasers of reinforcing bars, in particular the national association of iron millers (‘Ansfer’), never learned of, or suspected the cartel. The fact that purchasers of reinforcing bars were unaware of the cartel cannot, however, prove that the agreement had no effects on the market, as the applicant alleges.

152 Secondly, the applicant maintains that, in the first decision, the Commission failed to address the distinction between an agreement and a concerted practice. That distinction is crucial, inasmuch as, while it may be unnecessary to consider the actual effects of a given anti-competitive agreement, that is not so in the case of a concerted practice, which presupposes that the collusion translates into actual market conduct attributable to the undertakings supposedly belonging to the cartel.

153 Next, the alleged agreements to which the first decision refers can in no case be regarded as agreements reflecting a genuine, common intention on the part of the cartel participants, including the applicant, to conduct themselves in a specific fashion dictated by the agreement itself. There is nothing in the Commission’s file to establish the existence of an agreement between the parties, signed or otherwise, of such a kind as to implicate the applicant, even indirectly.

154 Lastly, as regards concerted practices, in order for there to be an infringement, an objective element is necessary, that is to say, concerted conduct on the common market on the part of the undertakings participating in the cartel. It is important to distinguish between the two constituent elements of a concerted practice, namely the conduct, behaviour or practice on the market, and the prior collusion. There will be an infringement only if the restrictive effects of the agreement manifestly alter competition, failing which there will be nothing more than an attempt to engage in a concerted practice, which, as such, is covered by neither Article 81 EC nor Article 65 CS.

155 In the first decision, the Commission took no interest in the actual conduct of the undertakings on the market, as if it had been dealing with a formal agreement, rather than alleged, informal collusion. However, in the present case, there was neither a written agreement nor any indirect evidence of the cartel’s existence.

156 First of all, as regards, the applicant’s argument that the Commission failed to address the ‘vitally important’ distinction between an agreement and a concerted practice, it must be observed that the Commission stated in the first decision that the cartel essentially involved agreements or concerted practices relating to the base price from 15 April 1992 to 4 July 2000 (and, until 1995, relating to payment terms) and agreements or concerted practices relating to the ‘extras’ from 6 December 1989 to 1 June 2000.

157 In recitals 403 and 405 of the first decision, it explained the concepts of an agreement and a concerted practice, within the meaning of Article 65(1) CS and, in recital 407, clarified the fact that it was not necessary, especially in the case of a long and complex infringement, for it to characterise the behaviour as belonging exclusively to one or other form of unlawful conduct. Drawing on the case-law, the Commission concluded, in recitals 409 and 410 of the first decision, that an agreement might, therefore, at the same time constitute an agreement and a number of concerted practices and that Article 65 CS did not establish any particular category for a complex infringement suc