Judgment of the Court of First Instance (First Chamber) of 13 December 2001. - Krupp Thyssen Stainless GmbH and Acciai speciali Terni SpA v Commission of the European Communities. - ECSC Treaty - Competition - Agreements, decisions and concerted practices - Alloy surcharge - Price fixing - Rights of the defence - Duration of the infringement - Fine - Guidelines on the method of setting fines - Cooperation during the administrative procedure - Principle of equal treatment. - Joined cases T-45/98 and T-47/98.



European Court reports 2001 Page II-03757



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

1. Procedure - Measures of organisation of procedure - Request for the production of documents - Obligations of the person making the request

(Rules of Procedure of the Court of First Instance, Art. 64(3)(d) and (4))

2. Procedure - ECSC - File transmitted by an institution to the Community judicature under Article 23 of the Statute of the Court of Justice - Right of access - Access to internal documents - Conditions

(ECSC Statute of the Court of Justice, Art. 23)

3. ECSC - Decision imposing a fine or periodic penalty payment - Administrative procedure - Access to the file - Purposes - Limits - Confidential documents

(ECSC Treaty, Art. 36, first para.)

4. ECSC - Decision imposing a fine or periodic penalty payment - Administrative procedure - Access to the file - Inapplicability of principles governing judicial procedure - Consequence

(ECSC Treaty, Art. 36, first para.)

5. ECSC - Community competition rules - Infringements - Attribution of responsibility - Natural or legal person responsible for the operation of the undertaking at the material time - Exception - Strict interpretation - Consequence

(ECSC Treaty, Arts 36, first para., and 65)

6. ECSC - Decision imposing a fine or periodic penalty payment - Administrative procedure - Operative part and reasoning of decision - Changes after notification to addressee - Not permissible

(ECSC Treaty, Art. 15, second para.)

7. ECSC - Prices - Price lists - Compulsory publication - Purposes - Connection with principle of prohibition of anti-competitive conduct

(ECSC Treaty, Arts 60 and 65(1))

8. Actions for annulment - Action brought by an undertaking under the ECSC Treaty - Pleas in law - Pleas involving matters of public policy - Absence or inadequacy of reasons stated - Consequences

(ECSC Treaty, Art. 33, second para.)

9. Acts of the institutions - Statement of reasons - Obligation - Appraisal - Purposes - ECSC decision

(ECSC Treaty, Art. 15)

10. ECSC - Agreements, decisions and concerted practices - Prejudicial to competition - Anti-competitive object - Sufficient to establish the existence thereof

(ECSC Treaty, Art. 65(1))

11. ECSC - Agreements, decisions and concerted practices - Prohibited - Scope - Agreements relating to fixing of part of the final price - Included

(ECSC Treaty, Art. 65(1))

12. ECSC - Agreements, decisions and concerted practices - Prohibited - Cartels continuing to produce their effects after their formal termination - Application of Article 65 of the ECSC Treaty

(ECSC Treaty, Art. 65; EC Treaty, Art. 85 (now Art. 81 EC))

13. ECSC - Community competition rules - Infringements - Gravity - Appraisal - Factors relating to the intentional aspect of conduct more significant than those relating to its effects - Committed intentionally - Meaning

(ECSC Treaty, Art. 65)

14. ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Attitude of the undertaking during the administrative proceeding - Appraisal of the extent of the cooperation afforded by each of the undertakings involved in the cartel - Observance of the principle of equal treatment - Difference of treatment based on the order in which the undertakings each admitted the facts - Not permissible

(ECSC Treaty, Art. 65(5))

15. ECSC - Agreements, decisions and concerted practices - Concerted practices - Meaning - Criteria of coordination and cooperation - Interpretation

(ECSC Treaty, Art. 65(1))

16. ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Attitude of the undertaking during the administrative proceeding - Absence of an express statement that it was not contesting the Commission's allegation of a concerted practice - Not conducive to facilitating the Commission's task of finding infringements

(ECSC Treaty, Art. 65(5))

Summary

1. Under Article 64(3)(d) and (4) of the Rules of Procedure of the Court of First Instance, the adoption of measures of organisation of procedure may be proposed by the parties at any stage of the procedure and they may consist of requests that documents or any papers relating to the case be produced. However, to enable the Court to determine whether it is conducive to the proper conduct of the procedure to order the production of certain documents, the party requesting production must not only identify the documents requested but also provide the Court with at least minimum information indicating the utility of those documents for the purposes of the proceedings.

( see paras 30-31 )

2. The purpose of Article 23 of the ECSC Statute of the Court of Justice, concerning the transmission to the Community judicature of documents relating to the case before it, is to enable the Community judicature to review the legality of the contested decision whilst ensuring that the rights of the defence are observed, and not to guarantee unconditional and unlimited access for all parties to the administrative file.

In particular, in the course of the proceedings before the Court internal Commission documents are not to be communicated to the applicants unless the circumstances of the case are exceptional and the applicants make out a plausible case for the need to do so.

( see paras 33-34 )

3. For the purpose of applying the competition rules of the EC Treaty, the purpose of access to the file is in particular to enable the addressees of a statement of objections to acquaint themselves with the evidence in the Commission's file, so that they can express their views effectively, on the basis of that information, on the conclusions reached by the Commission in its statement of objections. It follows that the Commission has an obligation to make available to the undertakings to which a statement of objections has been addressed all documents, whether in their favour or otherwise, which it had obtained during the course of the investigation, with the exception of confidential documents, such as the internal documents of the Commission.

Those considerations are equally valid for the purpose of applying the competition rules of the ECSC Treaty.

( see paras 45-46 )

4. Just as the general principles of Community law governing, in competition cases, the right of access to the Commission's file during the administrative procedure do not apply, as such, to the procedure before Court, the provisions governing the procedure before the Court cannot be applied to the administrative procedure before the Commission. Therefore, the Commission is not obliged to make internal documents available during the administrative procedure.

( see paras 47-48 )

5. It falls, in principle, to the legal or natural person managing the undertaking in question when the infringement of the Community competition rules was committed to answer for that infringement, even if, when the decision finding the infringement was adopted, another person had assumed responsibility for running the undertaking.

That is not the case, however, when the person subsequently managing the undertaking in question makes a statement accepting responsibility for the conduct for which his predecessor was criticised. Such a statement, which in particular takes account of economic considerations specific to concentrations of undertakings, implies that the legal person within whose sphere of responsibility the business of another legal person was brought after the date of the infringement deriving from that business should be required to be answerable for it, even though, in principle, it is incumbent upon the natural or legal person running the undertaking concerned at the time of the infringement to answer for it.

However, in so far as it constitutes an exception to the principle that a natural or legal person may be penalised only for acts imputed to it individually, such a statement must be interpreted strictly. In particular, unless he gives some indication to the contrary, the person making such a statement cannot be presumed to have waived the right to exercise his rights of defence and, in particular, his right to be heard regarding the acts imputed to his predecessor in the statement of objections notified to the latter.

( see paras 57, 62-64 )

6. The operative part and reasoning of the decision imposing a fine for infringement of the competition rules, as notified to the addressee or addressees of the decision, must correspond to those of the decision adopted by the College of Commissioners, exception being made for any corrections merely of spelling and grammar which may still be made to the text of an act after its formal adoption by that college.

( see para. 73 )

7. The purpose of the compulsory publication of price lists and conditions of sale under Article 60(2) of the ECSC Treaty is, first, as far as possible to prevent prohibited practices; second, to enable purchasers to learn exactly what prices will be charged and be able themselves to check whether any discrimination has taken place; and, third, to enable undertakings to have accurate knowledge of the prices of their competitors so as to enable them to align their prices. However, the prices on the lists must be fixed by each undertaking independently, without any agreement, even tacit, between them. In particular, the fact that the provisions of Article 60 tend to restrict competition does not prevent application of the prohibition of agreements under Article 65(1) of the ECSC Treaty.

( see paras 116-117 )

8. In an action for annulment, a plea alleging absence of reasons or inadequacy of the reasons stated for the adoption of a Community act involves a matter of public policy which must be raised by the Community judicature of its own motion and, consequently, may be raised by the parties at any stage of the procedure.

( see para. 125 )

9. The statement of reasons required by Article 15 of the ECSC Treaty must, first, be such as to enable the person concerned to ascertain the matters relied upon to justify the measure adopted so that, if necessary, he can defend his rights and verify whether the decision is well founded and, secondly, enable the Community judicature to exercise its power of review of legality. The requirement of a statement of reasons must be viewed in the context of the circumstances of the case, in particular the terms of the measure in question, the nature of the reasons relied on and the context in which the measure was adopted.

( see para. 129 )

10. The Commission is not obliged to demonstrate that there was an adverse effect on competition in order to establish an infringement of Article 65(1) of the ECSC Treaty provided that it has established the existence of an agreement or concerted practice intended to restrict competition.

( see para. 154 )

11. The prohibition of agreements and concerted practices which directly or indirectly fix prices also extends to agreements relating to the fixing of a part of the final price.

( see para. 157 )

12. With regard to cartels which are no longer in force, it is sufficient, for Article 85 of the EC Treaty (now Article 81 EC), and by analogy Article 65 of the ECSC Treaty, to be applicable that they continue to produce their effects after they have formally ceased to be in force. The same applies a fortiori where, as in this case, the effects of the agreement lasted until adoption of the Decision finding the infringement, without the agreement having been formally brought to an end.

( see para. 181 )

13. The gravity of infringements of the competition rules falls to be determined by reference to numerous factors including, in particular, the specific circumstances and context of the case and the deterrent character of the fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up. In that connection, factors relating to the intentional aspect, and thus to the object of a course of conduct, may be more significant than those relating to its effects, particularly where they relate to infringements which are intrinsically serious, such as price-fixing. In particular, an infringement of the competition rules may be regarded as having been committed intentionally if the undertaking could not have been unaware that the object of its conduct was the restriction of competition. It is not therefore necessary for an undertaking to have been aware that it was infringing those rules.

( see paras 198-200 )

14. As regards appraisal of the cooperation shown by undertakings during an administrative procedure initiated in relation to a prohibited agreement, the Commission is not entitled to disregard the principle of equal treatment, a general principle of Community law which, according to settled case-law, is infringed only where comparable situations are treated differently or different situations are treated in the same way, unless such difference of treatment is objectively justified

In that regard, the mere fact that one of the undertakings participating in the cartel was the first to acknowledge the contested facts in response to the questions put by the Commission cannot constitute an objective reason for treating them differently. The appraisal of the extent of the cooperation shown by undertakings cannot depend on purely random factors, such as the order in which they are questioned by the Commission. The extent of the cooperation provided by the undertakings concerned must be regarded as comparable, in so far as those undertakings provided the Commission, at the same stage of the administrative procedure and in similar circumstances, with similar information concerning the conduct imputed to them.

( see paras 237, 245-246 )

15. The criteria of coordination and cooperation necessary for determining the existence of a concerted practice are to be understood in the light of the concept inherent in the Treaty provisions on competition, according to which each trader must determine independently the policy which he intends to adopt on the common market and the conditions which he intends to offer to his customers.

( see para. 264 )

16. A reduction of a fine is justified only if the conduct of the undertaking concerned enabled the Commission to establish the infringement more easily and, where relevant, bring it to an end. However, in the absence of an express statement that it is not contesting the Commission's allegation of a concerted practice, an undertaking does not facilitate the Commission's task of finding and bringing to an end infringements of Community competition law.

( see para. 270 )

Parties

In Joined Cases T-45/98 and T-47/98,

Krupp Thyssen Stainless GmbH, established in Duisberg, Germany, represented by M. Klusmann, O. Lieberknecht and K. Moosecker, lawyers, with an address for service in Luxembourg,

Acciai Speciali Terni SpA, established in Terni, Italy, represented by L. G. Radicato di Brozolo, lawyer, with an address for service in Luxembourg applicants,

applicants,

v

Commission of the European Communities, represented by W. Wils and K. Leivo, acting as Agents, assisted by H.-J. Freund and A. dal Ferro, lawyers, with an address for service in Luxembourg,

defendant,

APPLICATION for the annulment of Commission Decision 98/247/ECSC of 21 January 1998 relating to a proceeding under Article 65 of the ECSC Treaty (Case IV/35.814 - Alloy Surcharge) (OJ 1998 L 100, p. 55),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (First Chamber),

composed of: B. Vesterdorf, President, M. Vilaras and N.J. Forwood, Judges,

Registrar: G. Herzig,

having regard to the written procedure and further to the hearing on 11 October 2000,

gives the following

Judgment

Grounds

Facts

1 Krupp Thyssen Nirosta GmbH (KTN), a company incorporated under German law, came into being on 1 January 1995 as a result of a merger between Thyssen Stahl AG and Fried. Krupp AG Hoesch Krupp (Krupp), which manufactured stainless steel flat products resistant to acids and high temperatures. On 16 September 1997 its name was changed to Krupp Thyssen Stainless GmbH (KTS).

2 Acciai Speciali Terni SpA (AST), a company incorporated under Italian law, whose principal activities include the production of stainless steel flat products, was set up on 1 January 1994 when the steel-making activities of the Italian group ILVA were split up into three undertakings with a view to subsequent sale. On 21 December 1994 the Commission authorised the joint acquisition of AST by Krupp, Thyssen Stahl, AFL Falck, Tadfin SpA and FI.RE. Finanziaria SpA (Riva group) (Commission Decision 95/421/EC of 21 December 1994 declaring a concentration to be compatible with the common market (Case No IV/M.484 - Krupp/Thyssen/Riva/Falck/Tadfin/AST, OJ 1995 L 251, p. 18). In December 1995 Krupp increased its share in AST from 50% to 75% and then acquired all the shares in AST on 10 May 1996 (Commission Decision of 2 May 1996 declaring a concentration to be compatible with the common market (Case No IV/M.740 - KRUPP (II), OJ 1996 C 144, p.3). Those shares were then transferred to KTN, which had become KTS.

3 Stainless steel is a type of special steel whose main property is resistance to corrosion. This resistance is achieved by the use of different alloying materials (chrome, nickel, molybdenum) in the production process. Stainless steel is used in the form of flat products (plates or coils, cold or hot rolled) or long products (bars, wire rod, sections, hot rolled or finished). Flat products account for 82% of sales of finished stainless steel products. Most of those products are ECSC products within the meaning of Article 81 of the Treaty.

4 On 16 March 1995, following reports in the specialised press and complaints from consumers, the Commission, under Article 47 of the Treaty, asked a number of stainless steel producers for information concerning the application by those producers of a general price increase known as the alloy surcharge.

5 The alloy surcharge is a price supplement which is calculated on the basis of the prices of alloying materials and is added to the basic price for stainless steel. The cost of the alloying materials used by stainless steel producers (nickel, chromium and molybdenum) forms a very large proportion of the total production costs. The prices of those materials are extremely volatile.

6 The methods used for calculation of the alloy surcharge have varied depending on the period and the producer. In the course of inspections carried out under Article 47 of the ECSC Treaty and in certain letters to the Commission, the producers of stainless steel flat products stated that they had used the same formula for calculating the alloy surcharge, with the exception of the reference values (or trigger values), since 1988. However, in 1991, following a drop in the prices of alloying materials below the trigger values, the producers applied a zero alloy surcharge.

7 On the basis of the information obtained, and particularly copies of circulars sent by the producers concerned to their customers announcing a change to the bases used to calculate the alloy surcharge, the Commission served a statement of objections on 19 undertakings on 19 December 1995. The replies given by those undertakings prompted the Commission to undertake further investigations under Article 47 of the ECSC Treaty.

8 In December 1996 and January 1997, after the Commission had carried out a number of inspections, lawyers or representatives of a number of undertakings, including Krupp and AST, informed the Commission of their wish to cooperate. For that purpose, statements were sent to the Commission: on 17 December 1996 by Compañía Española para la Fabricación de Aceros Inoxidables SA (Acerinox), ALZ NV, Avesta Sheffield AB (Avesta), KTN and Usinor SA (Usinor or Ugine, and on 10 January 1997 by AST.

9 On 24 April 1997 the Commission served a new statement of objections replacing the statement of 19 December 1995 on those undertakings and on Thyssen Stahl.

10 On 21 January 1998 the Commission adopted Decision 98/247/ECSC relating to a proceeding pursuant to Article 65 of the ECSC Treaty (Case IV/35.814 - Alloy surcharge) (OJ 1998 L 100, p. 55, hereinafter the Decision).

11 According to the Decision, the prices for alloys and stainless steel fell sharply in 1993. When nickel prices started to rise in September 1993, producers' profits were considerably reduced. To remedy this, the producers of stainless flat products, other than Outokumpu, agreed, at a meeting held in Madrid on 16 December 1993 (hereinafter the Madrid meeting), to increase their prices on a concerted basis by changing the parameters for calculating the alloy surcharge. To that end they decided to apply, as from 1 February 1994, an alloy surcharge based on the method last used in 1991, taking for all producers the September 1993 prices as reference values, when the price of nickel had reached its historical low.

12 Thus, according to the Decision, producers calculated the amount of the alloy surcharge to be applied in a given month (M) in the different Community currencies as follows: they calculated the average price of nickel, ferro-chromium and molybdenum in the two months preceding the month before the month of calculation (in other words, M-2 and M-3). Then they compared the values thus obtained with the reference values (or trigger values) since February 1994, namely: ECU 3 750/tonne for nickel, ECU 5 532/tonne for molybdenum and ECU 777/tonne for chromium. Under that system, if the difference between the average prices and the reference values is positive, a price supplement is added to the basic price of the steel concerned for the month M. If it is negative, no increase is applied. There is thus no negative alloy surcharge. Such a situation occurred between 1991 and 1993, when alloy prices fell below the trigger values then applicable and producers applied a zero alloy surcharge. The amounts reflecting a positive difference are multiplied by the percentage of each alloy in the quality of steel concerned.

13 According to the Decision, the alloy surcharge calculated on the basis of the newly determined reference values was applied by all producers for their sales in Europe as from 1 February 1994, except in Spain and Portugal. In Spain the new alloy surcharge was applied in June 1994, Acerinox having indicated at the Madrid meeting that the immediate application of the new alloy surcharge in Spain would not help to increase demand and would not have a positive effect on Spanish industry which was in the depths of a severe crisis. However, Acerinox too applied the new alloy surcharge as from 1 February 1994 in the other Member States, and Denmark in particular. According to the Decision, that agreement led to a virtual doubling of stainless steel prices between January 1994 and March 1995.

14 The operative part of the Decision contains the following provisions:

Article 1

[Acerinox], ALZ NV, [AST], [Avesta], Krupp Hoesch Stahl AG ([KTN] as from 1 January 1995), Thyssen Stahl AG ([KTN] as from 1 January 1995) and [Ugine] infringed Article 65(1) of the ECSC Treaty, in the case of [Avesta] from December 1993 to November 1996 and, in the case of the other undertakings, up to the date of this Decision, namely by modifying and by applying in a concerted fashion the reference values used to calculate the alloy surcharge, such practice having both the object and the effect of restricting and distorting competition within the common market.

Article 2

The following fines are hereby imposed in respect of the infringements described in Article 1:

[Acerinox] ECU 3 530 000

ALZ NV ECU 4 540 000

[AST] ECU 4 540 000

[Avesta] ECU 2 810 000

[KTN] ECU 8 100 000

[Usinor] ECU 3 860 000

Article 3

...

Article 4

[Acerinox], ALZ NV, [AST], [KTN] and [Usinor] shall immediately put an end to the infringements referred to in Article 1 and shall inform the Commission within three months of being notified of this Decision of the measures they have taken to that end.

The undertakings referred to in Article 1 shall refrain from repeating the acts or conduct specified in the said Article and from adopting any measure having an equivalent effect.

15 By fax of 21 January 1998 the Commission notified the operative part of the Decision to the applicants. By decision of 2 February 1998 the Commission replaced by other numbers the bank account number appearing in the first paragraph of Article 3 of the operative part of the Decision notified on 21 January 1998 into which the fines imposed were required to be paid (the decision of 2 February 1998). On 5 February 1998, the Decision, thus amended, was formally notified to its addressees.

Procedure

16 By applications lodged at the Registry of the Court of First Instance on 11 March 1998 (Case T-45/98) and 13 March 1998 (Case T-47/98) KTS and AST instituted the present proceedings. Acerinox also brought proceedings against the Decision (Case T-48/98).

17 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (First Chamber) decided to open the oral procedure. As a measure of organisation of procedure, it asked the Commission to answer a number of written questions.

18 The parties presented oral argument and answered the questions put to them by the Court at the hearing on 11 October 2000.

19 After the views of the parties were heard on the matter, the Court of First Instance decided that the present cases should be joined for the purposes of the judgment in accordance with Article 50 of the Rules of Procedure.

Forms of order sought

20 The applicant in Case T-45/98 claims that the Court of First Instance should:

- Annul the Decision, as amended by the defendant's decision of 2 February 1998, in so far as it concerns the applicant;

- In the alternative, cancel the fine imposed on the applicant by Article 2 of the Decision and annul the combined provisions of Article 4 and Article 1 of the Decision;

- In the further alternative, reduce the fine imposed on the applicant by Article 2 of the Decision and annul the combined provisions of Article 4 and Article 1 of the Decision;

- Grant its request for measures of organisation of procedure;

- Order the Commission to pay the costs.

21 The Commission contends that the Court of First Instance should:

- Dismiss the action;

- Reject the request for measures of organisation of procedure;

- Order the applicant to pay the costs.

22 The applicant in Case T-47/98 claims that the Court of First Instance should:

- Annul the Decision in so far as it concerns the applicant;

- In the alternative, annul Articles 2 and 4 of the Decision in so far as they relate to the applicant;

- In the further alternative, reduce the fine imposed on the applicant;

- Adopt the measures of organisation of procedure applied for;

- Order the Commission to pay the costs.

23 The Commission contends that the Court of First Instance should:

- Dismiss the action as unfounded;

- Order the applicant to pay the costs.

The requests for measures of organisation of procedure relating to Commission internal documents

Arguments of the parties

24 During the written procedure, KTS and AST asked the Court to order the Commission to produce its internal documents relating to the Decision in so far as they might show that the Commission was aware of the application of the alloy surcharge. In support of their applications, they maintain that, because price lists were regularly notified to Commission officials in accordance with the ECSC Treaty, those officials were or should have been aware of the use of the single formula for calculation of the alloy surcharge.

25 AST adds that access to those documents would also enable it to contest the allegation in paragraph 50 of the Decision that the price concertation dated not from 1993 but from 1988.

26 Furthermore, KTS, after consulting the file forwarded to the Registry on 17 December 1998 by the Commission, requested, by letter lodged at the Registry on 10 June 1999, that, by way of measure of organisation of procedure, the Commission should be called on to prepare a complete list of the documents contained in folders XIX to XXII and to indicate, in each case, the reasons for which those documents could not be disclosed to it. In support of its application, KTS claims that such a measure is necessary to enable it to check whether those folders contained relevant documents which might justify its being granted access to them.

27 The Commission replies that it had no knowledge either of the single method of calculating the alloy surcharge or of the conditions for applying it, which were never notified to it, as the undertakings concerned merely notified to it the alloy surcharges applied by them respectively. Moreover, it is inappropriate to seek access to internal documents to verify the statement in paragraph 50 of the Decision that the infringement dated from about 1988 since, in the absence of adequate evidence, the Decision indicates that the infringement commenced in December 1993, the date of the Madrid meeting.

28 As regards KTS's application submitted by letter of 10 June 1999, the Commission, in the observations which it lodged at the Registry on 25 August 1999, requested that it be rejected on the grounds, first, that it is not required to supply a detailed list of its internal documents to which access is not authorised and, second, that it is not required to specify, for each document, the overriding reasons for which access to those parts of the file must be refused to the undertakings concerned. It contends, in that connection, that the order of the Court of First Instance of 10 December 1997 in Joined Cases T-134/94, T-136/94, T-137/94, T-138/94, T-141/94, T-145/94, T-147/94, T-148/94, T-151/94, T-156/94, and T-157/94 NMH Stahlwerke and Others v Commission [1997] ECR II-2293 (hereinafter the Beams II order) does not impose any such obligation on it.

Findings of the Court

29 Article 64(1) of the Rules of Procedure of Court of First Instance provides [t]he purpose of measures of organisation of procedure shall be to ensure that cases are prepared for hearing, procedures carried out and disputes resolved under the best possible conditions.

30 According to Article 64(2)(a) and (b) of those rules, the purpose of measures of organisation of procedure is, in particular, to ensure efficient conduct of the written and oral procedure and to facilitate the taking of evidence and also to determine the points on which the parties must present further argument or which call for measures of inquiry. Under Article 64(3)(d) and (4) of those rules, the adoption of such measures may be proposed by the parties at any stage of the procedure and they may consist of requests that documents or any papers relating to the case to be produced.

31 However, to enable the Court to determine whether it is conducive to the proper conduct of the procedure to order the production of certain documents, the party requesting production must not only identify the documents requested but also provide the Court with at least minimum information indicating the utility of those documents for the purposes of the proceedings (Case C-185/95 P Baustahlgewebe v Commission [1998] I-8417, paragraph 93).

32 As regards, first, the requests for access to internal Commission documents in the course of the proceedings before the Court, it must first be borne in mind that Article 23 of the ECSC Statute of the Court of Justice, which is applicable to the Court of First Instance by virtue of the first paragraph of Article 46 thereof, requires the defendant to transmit to the Community Court all the documents relating to the case before the Court and not just the documents which the defendant itself considers relevant in the light of the factual and legal arguments raised by the parties. Accordingly, the Commission was under an obligation - which it fulfilled - to forward to the Court all the documents relating to the administrative procedure prior to adoption of the Decision, including its internal documents.

33 However, the purpose of Article 23 of the Statute of the Court of Justice is to enable the Community judicature to review the legality of the contested decision whilst ensuring that the rights of the defence are observed, and not to guarantee unconditional and unlimited access for all parties to the administrative file (Beams II order, paragraph 32).

34 In particular, according to settled case-law internal documents are not to be communicated to the applicants unless the circumstances of the case are exceptional and the applicants make out a plausible case for the need to do so (order of the Court of Justice of 18 June 1986 in Joined Cases 142/84 and 156/84 BAT and Reynolds v Commission [1986] Rec. p. 1899, paragraph 11, Case T-35/92 Deere v Commission [1994] ECR II-957, paragraph 31, and the Beams II order, paragraphs 35 and 36).

35 In the circumstances of this case, the arguments of KTS and AST that access to the internal documents of the Commission would enable them to show that the Commission was or should have been aware of the use of the calculation method for the alloy surcharge by the stainless steel producers are not based on any sound evidence, nor do they show the existence of exceptional circumstances within the meaning of the case-law cited above.

36 As stated by the Commission in paragraph 61 of the Decision, in response to a similar argument put forward in the administrative procedure, the undertakings concerned disclosed to it only the amounts of the alloy surcharges applied by each of them. However, they never disclosed the calculation method itself or the conditions for its application. That finding, which is not contested, shows to be entirely unfounded the claim that the Commission was aware of the infringement at issue, which, moreover, derived not from the use of a single method for calculation of the alloy surcharge incorporating variable calculation rates but from the introduction into that calculation method, as from the same date and by all the undertakings concerned, of the same reference values for the alloying materials (chrome, nickel and molybdenum) with a view to securing a price increase.

37 As regards AST's argument that access to the Commission's internal documents would enable it to contest the accusation that concertation began in 1988, it is entirely irrelevant, since in its Decision the Commission treated the concertation as dating back to December 1993, in the absence of adequate evidence (paragraphs 50 and 56 of the Decision).

38 Consequently, it must be held that KTS and AST have neither made out a plausible case nor demonstrated the existence of exceptional circumstances such as to justify an exception to the general rule that internal Commission documents are not available to applicants. Since they have thus failed to show that the measures applied for would be useful, the application must be rejected.

39 As regards, second, the separate application by KTS for production of a list of Commission internal documents, it must be pointed out that KTS made that application solely to establish whether the documents concerned were ones to which it considered that it should have access. Since that argument is also insufficient to prove the utility of the measure applied for, the application cannot be upheld.

40 It follows that the applications for measures of organisation of procedure relating to Commission internal documents must be rejected.

The claim for annulment of Article 1 of the Decision

I - The pleas alleging breach of the rights of the defence

A - Access to the file

Arguments of the parties

41 The applicants maintain that they did not have sufficient access to the file during the administrative phase, particularly in the case of documents classified as internal. In particular, KTS claims that the Commission likewise failed to give it any indication as to the content of the documents kept from it. As regards the other internal documents which were placed in the file after 8 November 1995, the Commission likewise failed to give any information as to the number, importance and content of those documents, or even a list of them.

42 According to the applicants, the Commission did not comply with the case-law of the Court of First Instance on that point (order of the Court of First Instance of 19 June 1996 in Joined Cases T-134/94, T-136/94, T-137/94, T-138/94, T-141/94, T-145/94, T-147/94, T-148/94, T-151/94, T-156/94 and T-157/94 NMH Stahlwerke and Others v Commission [1996] ECR II-537, hereinafter the Beams I order, paragraphs 62 to 78, and the Beams II order, paragraphs 30 to 39). Access to those Commission internal documents is relevant in order to demonstrate the complicity of Commission staff who were, or should have been, aware of the use of the method for calculating the alloy surcharge by the stainless steel producers. According to KTS, it is also contrary to the principle of economy of procedure for its right of access to Commission internal documents to be exercisable only at the stage of court proceedings and not during the administrative phase.

43 The Commission contends that the applicants are not entitled to be granted access to its internal documents (Case T-7/89 Hercules Chemicals v Commission [1991] ECR II-1711, paragraph 54). As regards the Beams I and Beams II orders, the Commission states that they concerned the scope of Article 23 of the Statute of the Court of Justice and in particular the question of the conditions under which applicants may have access to its internal documents in the context of proceedings before the Court.

Findings of the Court

44 It must be borne in mind, at the outset, that the general principles of Community law governing the right of access to the Commission file are intended to ensure effective exercise of the rights of the defence, including the right to be heard (Case C-51/92 P Hercules Chemicals v Commission [1999] ECR I-4325, paragraph 76), which, in the case of competition proceedings initiated under the ECSC Treaty, is provided for in the first paragraph of Article 36 of that Treaty, according to which the Commission, before taking a decision imposing one of the pecuniary sanctions provided for in that Treaty, must allow the person concerned an opportunity to submit his observations.

45 For the purpose of applying the competition rules of the EC Treaty, it is clear from settled case-law that the purpose of access to the file is in particular to enable the addressees of a statement of objections to acquaint themselves with the evidence in the Commission's file, so that they can express their views effectively, on the basis of that information, on the conclusions reached by the Commission in its statement of objections (C-310/93 P BPB Industries and British Gypsum v Commission [1995] I-865, paragraph 21, Baustahlgewebe v Commission, cited above, paragraph 89, and Case C-51/92 P Hercules Chemicals v Commission, cited above, paragraph 75).

46 It follows that the Commission has an obligation to make available to the undertakings to which a statement of objections has been addressed all documents, whether in their favour or otherwise, which it had obtained during the course of the investigation, with the exception of confidential documents, such as the internal documents of the Commission (Case T-65/89 BPB Industries and British Gypsum v Commission [1993] II-389, paragraph 29, as confirmed by the judgment of the Court of Justice in BPB Industries and British Gypsum v Commission, cited above, paragraph 25; see also the judgment of 17 December 1991 in Hercules Chemicals v Commission, cited above, paragraph 54, Case T-221/95 Endemol v Commission [1991] ECR II-1299, paragraph 66). Those considerations are equally valid for the purpose of applying the competition rules of the ECSC Treaty.

47 In this case, it must be held that the applicants, which do not contest having had access to the documents in the file on which the Commission based the Decision, are merely claiming that they should also have had access to the internal documents of the Commission during the administrative procedure. However, as has been stated, the Commission is not obliged to make such documents available during the administrative procedure.

48 That conclusion is not undermined by the argument based on the Beams I and Beams II orders. It must be borne in mind that those orders concern the application of Article 23 of the ECSC Statute of the Court of Justice and, in particular, the conditions for access to internal Commission documents during proceedings before the Court. However, just as the general principles of Community law governing the right of access to the Commission's file during the administrative procedure do not apply, as such, to the procedure before Court (Baustahlgewebe v Commission, cited above, paragraph 90), the provisions governing the procedure before the Court cannot be applied to the administrative procedure before the Commission.

49 KTS's argument that it is contrary to the principle of economy of procedure not to grant access to internal Commission documents until the stage of proceedings before the Court is clearly irrelevant since, as already stated (see paragraphs 29 to 40 above), the conditions imposed by the case-law for such access to be available during the procedure before the Court are not, in any event, fulfilled.

50 It follows that the present plea is unfounded and must therefore be rejected.

B - Infringement of KTS's right to be heard regarding the conduct of Thyssen Stahl

Arguments of the parties

51 KTS maintains that the Commission infringed the first paragraph of Article 36 of the ECSC Treaty on the ground that its right to be heard regarding the conduct imputed to Thyssen Stahl was not observed. It states that KTN, to which it was the successor, acquired as from 1 January 1995 the business of Thyssen Stahl in the stainless steel flat products sector and agreed, as purchaser, to accept liability for any infringements committed by that undertaking.

52 However, KTN never waived the right to be the subject of a new procedure in the event of the Commission imposing a fine on it for the conduct of Thyssen Stahl. It states, in that connection, that, during an inspection at the premises of KTN on 8 October 1996, the Commission did not disclose that the procedure against Thyssen Stahl would concern it as from that time. The Commission even notified the new statement of objections of 24 April 1997 not only to KTN but also to Thyssen Stahl, and the two undertakings expressed their views on it separately. In its reply of 30 June 1997 to the statement objections, KTN also expressly indicated that its views related only to the charges concerning it.

53 The Commission points out that, by letter of 23 July 1997, KTN declared that, following the takeover of Thyssen Stahl's stainless steel flat products business, it accepted liability for any conduct of the latter in respect of products covered by the present procedure and also for the period dating back to 1993.

54 According to the Commission, it was precisely because it conducted a dual administrative procedure that it then asked KTN whether it was prepared to assume liability for the conduct of which Thyssen Stahl was accused. At the date of KTN's statement, Thyssen Stahl had moreover already expressed its views on the statement of objections. Accordingly, in the absence of any indication to the contrary, KTN's statement could relate only to the state of advancement of the procedure at that time, the reference number thereof being expressly mentioned in its statement. Consequently, according to the Commission, that statement was concerned not with the assumption of liability to pay any fine that might be imposed on Thyssen Stahl but with the acceptance of liability for any conduct on the part of Thyssen Stahl relating to stainless steel flat products. That interpretation is confirmed by the fact that, if KTN had answered in the negative the question whether it assumed liability for Thyssen Stahl's conduct, the Commission would merely have imposed a fine on the latter but would not have initiated a new procedure against KTN.

Findings of the Court

55 The rights of the defence on which KTN relies are, in this case, safeguarded by the first paragraph of Article 36 of the ECSC Treaty, pursuant to which, before imposing any pecuniary sanction provided for by the Treaty, the Commission must give the party concerned the opportunity to submit its comments.

56 According to settled case-law, respect for the rights of the defence in all proceedings in which sanctions may be imposed is a fundamental principle of Community law which must be observed in all circumstances, even if the proceedings in question are administrative proceedings. The proper observance of that general principle requires that the undertaking concerned be afforded the opportunity, from the stage of the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents relied on by the Commission in support of its allegations (Joined Cases 100/80 to 103/80 Musique Diffusion Française v Commission [1983] ECR 1825, paragraph 10; see also Case T-30/91 Solvay v Commission, [1995] II-1775, paragraph 59, and the case-law there cited). It follows, in particular, that the Commission may rely only on facts on which the parties concerned have had an opportunity to make known their views (Musique Diffusion Française, paragraph 14).

57 It must also be borne in mind that it falls, in principle, to the legal or natural person managing the undertaking in question when the infringement was committed to answer for that infringement, even if, when the decision finding the infringement was adopted, another person had assumed responsibility for running the undertaking. (see, in particular Case C-279/98 P Cascades v Commission [2000] ECR I-9693, paragraph 78).

58 In this case, it is clear from the file, first, that on 24 April 1997, KTN and Thyssen Stahl were each addressees of the statement of objections and that each of those undertakings replied to it separately by letters from their respective representatives on 30 June 1997. In its reply to the statement of objections, KTN also expressly stated that it was submitting its observations in the name and on behalf of KTN.

59 Second, it is clear that KTN, which was succeeded by the applicant KTS, agreed by its letter of 23 July 1997 to the Commission to be held liable for conduct imputed to Thyssen Stahl for the period from 1993, even though Thyssen Stahl's business in the product sector concerned had not been transferred to it until 1 January 1995.

60 In fact, in its abovementioned letter, KTN expressly stated:

With regard to the abovementioned proceeding [Case IV/35.814 - KTN], you made a request to the legal representative of Thyssen Stahl ... that [KTN] should expressly confirm that it took over liability for any acts done by Thyssen Stahl following the transfer of Thyssen Stahl's stainless steel flat products business, in so far as the stainless steel flat products at issue in these proceedings are concerned, and this also applies to the period dating back to 1993. We hereby expressly give you that confirmation.

61 Finally, in paragraph 102 of the Decision, the Commission inferred from that statement that account should be taken of it in the operative part of the Decision. Consequently, the Commission considered KTN to be responsible for those acts of Thyssen Stahl which were regarded as contrary to Article 65(1) of the ECSC Treaty (Article 1 of the Decision) and therefore imposed on it a fine relating also to the acts imputed to Thyssen Stahl (Article 2 of the Decision). In that connection, the Commission expressed the view, in paragraph 78 of the Decision, that the duration of the infringement imputed to Thyssen Stahl extended from December 1993, the date of the Madrid meeting at which the concertation between the producers of stainless steel flat products commenced, to 21 January 1995, the date on which Thyssen Stahl ceased business in that sector.

62 It must be emphasised that it is undisputed that, in view of the statement made by KTN on 23 July 1997, the Commission was, by way of exception, entitled to impute to KTN liability for the unlawful conduct of which Thyssen Stahl was accused between December 1993 and 1 January 1995. It must be concluded that such a statement, which in particular takes account of economic considerations specific to concentrations of undertakings, implies that the legal person within whose sphere of responsibility the business of another legal person was brought after the date of the infringement deriving from that business should be required to be answerable for it, even though, in principle, it is incumbent upon the natural or legal person running the undertaking concerned at the time of the infringement to answer for it.

63 However, in so far as it constitutes an exception to the principle that a natural or legal person may be penalised only for acts imputed to it individually, such a statement must be interpreted strictly. In particular, unless he gives some indication to the contrary, the person making such a statement cannot be presumed to have waived the right to exercise his rights of defence.

64 However, contrary to what, in essence, the Commission contends, KTN's statement of 23 July 1997 could not be interpreted as implying, in addition, a waiver of its right to be heard regarding the acts imputed to Thyssen Stahl in the statement of objections notified to Thyssen Stahl on 24 April 1997, for which KTN agreed from that time to be held responsible for the purposes of the imposition of any fine.

65 That is particularly true since the statement of objections was sent separately to KTN and Thyssen Stahl and, quite clearly, that statement did not attribute to KTN liability for the acts alleged against Thyssen Stahl.

66 It must therefore be held in this case that the Commission did not give KTN an opportunity to submit its comments on the reality and relevance of the acts imputed to Thyssen Stahl and that, consequently, KTN was not able to exercise its rights of defence in that connection.

67 Accordingly, as is clear from the case-law, the Commission was not entitled to attribute liability for the acts of Thyssen Stahl to KTN or, consequently, to impose a fine on KTN in respect of the acts attributed to Thyssen Stahl when, on that point, the statement of objections was addressed only to the latter (see Joined Cases C-395/96 P and C-396/96 P Compagnie Maritime Belge Transports and Others v Commission [2000] ECR I-1365, paragraph 146).

68 In view of the foregoing, KTN's plea must be declared well founded and therefore Article 1 of the Decision must be annulled to the extent to which it imputes to KTN the infringement of which Thyssen Stahl was accused.

II - The plea alleging a formal defect

Arguments of the parties

69 The applicants maintain that the Decision was not properly adopted, on the ground that it was corrected and amended by the decision of 2 February 1998 without details being given of the errors of law affecting the Decision and without any indication being given whether those errors had been removed, which constitutes an infringement of the Commission's Rules of Procedure.

70 In addition, AST maintains that paragraph 38 and 40 of the Decision were omitted in the copy notified to it, which constitutes a severe formal defect in that AST was thus not in a position to be fully apprised of the Commission's reasoning and to defend itself.

71 Not having had access to the file in the administrative phase of the procedure, the applicants request that measures of organisation of procedure be ordered by the Court for that purpose.

72 The Commission states that the alleged error of law corrected by the decision of 2 February 1998 related to the indication in the first paragraph of Article 3 of the Decision of the numbers of the bank accounts into which the fines imposed were to be paid. It emphasises that, in its letter of 5 February 1998 accompanying the formal notification of the Decision to the applicants and to the other undertakings, that correction was expressly mentioned. Moreover, the Decision, as forwarded to the parties by fax on 21 January 1998, was absolutely identical to the one served on them by letter of 5 February 1998.

Findings of the Court

73 It is clear from the case-law that the operative part and reasoning of the decision notified to the addressee or addressees of the decision must correspond to those of the decision adopted by the College of Commissioners, exception being made for any corrections merely of spelling and grammar which may still be made to the text of an act after its formal adoption by that college (Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555, paragraphs 62 to 70).

74 In this case, the first paragraph of Article 3 of the operative part of the Decision, as forwarded to the parties on 21 January 1998, contained a bank account number for payment of the fines imposed. By its decision of 2 February 1998 the Commission replaced that number by several different account numbers. That change, the only one made by the decision of 2 February 1998, was included in the text of the Decision formally notified to the applicants on 5 February 1998 together with a letter in which the correction made by the College of Commissioners was also expressly mentioned. It is undisputed that no other change was made to the Decision. Consequently, since the Decision, as notified to the applicants, corresponds to the one adopted by the College of Commissioners, the argument alleging irregularities in the adoption of the Decision is unfounded.

75 As regards the alleged omission of paragraphs 38 and 40 of the Decision, as notified to AST, it need merely be stated that it derived from a simple error of numbering to which no importance can be attached because, in the text of the Decision notified to AST, those paragraphs corresponded to the second subparagraphs of paragraph 37 and paragraph 39 respectively.

76 In those circumstances, the present plea must be rejected and there is no reason to grant the request for measures of organisation of procedure.

III - The pleas alleging inadequacy of the statement of reasons, manifest errors of assessment of the facts and errors in law

A - The origin of the infringement

Arguments of the parties

77 The applicants maintain that the Decision is vitiated by errors of assessment and misuse of powers in that it is based on unproven statements concerning the origin of the method of calculating the alloy surcharge that were capable of influencing the appraisal of the infringement penalised by the Decision and the amount of the fine decided upon.

78 The applicants criticise the Commission for indicating, in paragraphs 19, 50 and 56 of the Decision, that a single method for calculating the alloy surcharge had been used by stainless steel producers since 1988 and was the result of concertation, so that the concerted change of the reference values, from 1994, was merely a development of that process. In that connection, they criticise it, in particular, for referring to Commission Decision 90/417/ECSC of 18 July 1990 relating to a proceeding under Article 65 of the ECSC Treaty concerning an agreement and concerted practices engaged in by European producers of cold-rolled stainless steel flat products (OJ 1990 L 220, p. 28).

79 In addition, AST considers that the Commission's statement in paragraph 55 of the Decision that the calculation values included in the alloy surcharge formula can be compared to recommendations within the meaning of the Commission notice concerning agreements, decisions and concerted practices in the field of cooperation between enterprises (Journal Officiel 1968 C 75, p. 3, hereinafter the 1968 notice) was made solely in order to imply that the purpose of the agreement was considerably more serious that it was in fact.

80 In order to examine the matters on which the Commission based all those findings, AST asks the Court to order production of the Commission's internal documents.

81 The Commission replies that no infringement of the competition rules is attributed to the applicants for the period before 1993. Moreover, the appraisal of facts dating back beyond that date had no impact on the assessment of the infringement or calculation of the fine.

Findings of the Court

82 It must be pointed out that the subject-matter of the agreement described, in particular, in paragraph 47 of the Decision was the use with effect from the same date by all the producers of stainless steel flat products of identical reference values in the method for calculating the alloy surcharge, a method that had been used previously, with a view to securing an increase in the price of stainless steel flat products.

83 Moreover, with regard to the duration of the infringement, it is important to note that the Commission stated, in paragraph 50 of the Decision, that although there were indeed reasons for thinking that the agreement originated in 1988, the date on which the undertakings used an identical calculation method for the alloy surcharge, the facts were not sufficiently established on that point. It inferred that the agreement, deriving from a concerted change in the reference values in that calculation method, had commenced at the Madrid meeting in December 1993 and continued until the date on which the Decision was adopted. Accordingly, with regard to the duration of the infringement, the Commission adopted a period of only four years, representing the period between the date of the Madrid meeting and the date of adoption of the Decision, except in the case of Avesta and Thyssen Stahl, for which it considered that the duration of the infringement was shorter (paragraph 78 of the Decision).

84 It follows that, contrary to the applicants' assertion, the fact that the Commission may have considered that the origin of the agreement dated back to 1988, when the undertakings used an identical formula for calculating the alloy surcharge, had no legal repercussions on either the characterisation of the infringement or the calculation of the fine. Consequently, that consideration is not such as to affect the legality of the Decision.

85 The same applies to the reference, in paragraphs 19 and 56 of the Decision, to Decision 90/417/ECSC, which, it must be held, was made only in order to describe the circumstances in which the method for calculating the alloy surcharge was used, and not in order to assess the purpose, effect or duration of the agreement covered by the Decision, or to calculate the fine.

86 The argument that the reference to the 1968 notice sought to establish that the purpose of the agreement was considerably more serious than it in fact was must also be rejected.

87 It must be concluded that the Commission referred to that notice in order to show that, contrary to the assertion of the undertakings concerned, its position on agreements concerning calculation models was necessarily known to them. In paragraphs 62 and 63 of the Decision, it thus observed that, under the 1968 notice, agreements having as their sole object the joint preparation of calculation models are not to be regarded as restricting competition but, that, on the other hand, that is not the case where such models contain specified rates of calculation. Referring, on that point, to its decision-making practice, it stated that models of that kind were comparable to recommendations restricting competition, in so far as such models are liable, by enabling undertakings to calculate their costs, to influence their pricing policy.

88 In this case, AST has not produced any evidence such as to indicate that those findings are not well founded, nor has it demonstrated that the Commission was pursuing any aim other than that of showing that the agreement covered by the Decision restricted competition.

89 Finally, it must be observed that AST has not made out any plausible case or demonstrated the existence of exceptional circumstances such as to justify an exception to the general rule that internal Commission documents are not available to applicants. Consequently, its request for the production of such documents must be rejected.

90 It follows from all the foregoing that the present plea must be rejected.

B - The purpose of the agreement and the characterisation of it

1. The description of the Madrid meeting

Arguments of the parties

91 The applicants maintain that the purpose of the Madrid meeting is incorrectly and imprecisely described in paragraph 44 of the Decision. The description given implies that the undertakings concerned acted in concert regarding not only the introduction and application of the reference values for the alloys covered by the calculation method for the alloy surcharge but also the adoption of an identical calculation method. Such a finding contradicts the statement that the use of an identical method dated back to about 1988.

92 AST adds that the purpose of the agreement is described in a contradictory and imprecise manner. Whilst the wording of paragraph 70 of the Decision is correct, in that it indicates that the purpose of the agreement was only to change the reference values in the method of calculation of the alloy surcharge, without any commitment as to their being maintained thereafter, Article 1 of the operative part nevertheless defines the infringement as deriving not only from the change but also from the application of those values in a concerted manner. However, there is nothing to show that the Madrid meeting was also concerned with maintaining the reference values whose use had been decided upon.

93 The Commission considers that the applicants' arguments concerning the true purpose of the Madrid meeting are unfounded since it did not express any view in the Decision on the adoption of a single method for calculating the alloy surcharge but commented on the use, in the existing calculation method, of identical new reference values for all the undertakings in question. As regards AST's argument, it purports to deny the continuous nature of the infringement.

Findings of the Court

94 It must be pointed out that paragraph 44 of the Decision states:

... the Madrid meeting had a single aim: to secure an across-the-board increase in stainless steel prices to offset the rise in the price of alloys. A discussion took place of the different methods used in the past to calculate the alloy surcharge and, following the meeting, all the undertakings took identical action. They applied to their sales in Europe, except in Spain and Portugal, from 1 February 1994, an alloy surcharge based on the method last used in 1991, taking the September 1993 prices as reference values. ....

95 As is also confirmed by paragraph 45 the Decision, which refers to the reintroduction by the stainless steel producers of the alloy surcharge by deliberately identical methods as to value and date, the Commission's appraisal thus related not to the use of a single calculation method as such, whose origin pre-dated 1993, but to the incorporation in that calculation method of identical reference values for all the undertakings.

96 As already stated (see paragraph 82 above), it inferred, in paragraph 47 of the Decision, that the purpose of the agreement was the use by all the undertakings, as from the same date, of identical reference values in the method of calculating the alloy surcharge, a method used previously, with a view to securing an increase in stainless steel prices.

97 It follows that the Madrid meeting is not described, in the Decision, as relating to the adoption of a method for calculating alloy surcharge but as being concerned with the incorporation in that method of identical reference values for all the producers.

98 As regards AST's argument that the purpose of the agreement is defined in a contradictory and imprecise manner, in so far as there is no proof that it also related to maintenance of the reference values incorporated in the method of calculating the alloy surcharge, it too must be rejected. By stating that the purpose of the agreement was the use of the same reference values in that calculation method, the Commission necessarily took the view that the undertakings concerned were pursuing the aim of actually applying those values. The question whether the Commission has shown, to the requisite legal standard, that that was the case is a matter to be examined in relation to the plea concerning the duration of the infringement (see paragraphs 174 to 184 below).

99 The present plea must therefore be rejected.

2. The alignment of prices and alloy surcharges

Arguments of the parties

100 The applicants consider that the Commission's findings concerning the way the alloy surcharge was applied in practice are irrelevant. They maintain that the Decision is vitiated by a manifested error of assessment of the facts and by an error in law on this point, in so far as it criticises the undertakings for having aligned their prices for stainless steel flat products, outside their national market, on the prices charged by a single producer (third subparagraph of paragraph 39 of the Decision).

101 The applicants claim that Article 60 of the ECSC Treaty expressly provides for a mechanism for the alignment of prices under which, for prices applied outside their national market, producers align their prices on those of the national producer or, in the absence thereof, those of the main supplier. Since the alignment of prices is a result of independent conduct, it has no probative value as evidence to support a finding of the existence of an agreement within the meaning of Article 65 of that Treaty. Accordingly, the statements made by AST, cited in paragraphs 38 and 40 of the Decision, are also irrelevant in so far as they referred only to prices being aligned, and moreover not uniformly aligned, according to paragraph 40 of the Decision.

102 AST also maintains that those views on the alignment of the prices of stainless steel flat products show that the Commission committed a manifest error of assessment regarding the purpose of the agreement by taking the view that it was also concerned with the prices of flat products rather than with the alloy surcharge alone.

103 Finally, the applicants consider that the erroneous and unreasoned nature of the Decision as regards assessment of the conduct of the undertakings on the market is confirmed by the linguistic differences between the German and Italian versions of the Decision. The German version of the Decision indicates in paragraph 39 that the undertakings reached agreement (geeinigt) on the price list of the same producer, whereas according to the Italian version those undertakings aligned themselves (si sono allineate). The German version of the Decision is manifestly incorrect on this point since it does not correspond with AST's statements cited in support of that proposition either. In its reply, KTS states that the Commission itself admits that the expression geeinigt may be misleading, but considers that the Commission does not draw the necessary inferences regarding the contradictory nature of the statement of reasons.

104 The applicants request, in any event, that an expert opinion be obtained under Article 25 of the Statute of the Court of Justice with a view to establishing whether substantial differences exist between the various language versions of the Decision and, in particular, between the German and Italian versions.

105 The Commission replies that the Decision is concerned not with an agreement as to the application of an identical price list for flat products but with an agreement concerning the use, under identical conditions, of the alloy surcharge calculation method. In that context, paragraph 39 of the Decision gives only one example of the way in which the alloy surcharge formula is applied and the question whether the undertakings did or did not agree on the prices for flat products is of no importance, particularly with regard to calculation of the fine. In that connection, it is clear from paragraphs 29 to 36 of the Decision that, following the Madrid meeting, the undertakings decided to apply the alloy surcharge on all markets, both domestic and foreign, as is confirmed, moreover, by the memorandum from AST referred to in paragraph 38 of the Decision. As is clear, also, from paragraph 42 et seq. of the Decision, those arrangements for applying the alloy surcharge meant that every producer was in a position to know in advance the attitude which would be adopted by all the undertakings.

106 In those circumstances, the price alignment mechanism provided for in Article 60 of the ECSC Treaty was not in any way disregarded and paragraph 39 of the German version of the Decision could only have been misleading if considered in isolation.

Findings of the Court

107 It is necessary first to consider whether, as the applicants claim, the Decision was vitiated by errors of assessment regarding its description of the practical arrangements for applying the alloy surcharge, set out in paragraphs 37 to 41 of the Decision.

108 It must be pointed out at the outset that, contrary to their assertion, the Decision does not find against applicants for an infringement deriving from an agreement on the prices of stainless steel flat products but only, as has been stated (see paragraph 82 above), for their participation in an agreement concerning the introduction and application, in a concerted manner, of the same reference values for alloys in the formula for calculating the alloy surcharge.

109 Accordingly, the fact that reference was made in the third subparagraph of Article 39 of the Decision to the alignment by the undertakings concerned of prices for stainless steel flat products, outside their domestic markets, on the basis of the price list applied by one of the producers had no impact on the legal assessment of the infringement carried out by the Commission or on the determination of the fines, a fact which, moreover, the applicants do not dispute.

110 It should next be noted that, in the Decision, the Commission described the practical arrangements for application of the alloy surcharge by reference to circumstances other than those relating to the alignment of prices for stainless steel flat products, which was only one aspect of the context in which concertation took place.

111 The Decision relies principally on an Avesta memorandum of 17 January 1994 describing, following the Madrid meeting, the arrangements for applying the alloy surcharge, which states, in particular, as follows (paragraph 38 of the Decision): We will follow the rules set by the home producer in any given producer market, including applying the surcharge they declare. According to the Decision, that memorandum also stated (paragraph 40 of the Decision): In the national markets in which [Avesta] was neither the domestic producer nor, in markets with no domestic producer, the leading supplier, typically, but not uniformly, [Avesta] would align on the domestic producer or leading supplier as was traditional in the stainless steel industry generally.

112 It is also stated, in paragraph 41 of the Decision, that several producers sent letters to their customers announcing, following the Madrid meeting, changes to the reference values to be used for calculation of the alloy surcharge. In one of those letters, dated 31 January 1994, one of the producers indicates, in particular, that we have no choice but to implement alloy surcharges on all stainless flat products in line with all other manufacturers.

113 In the light of the above evidence, it has not therefore been shown that the Decision, in finding that the undertakings concerned in fact voluntarily aligned the alloy surcharges following the Madrid meeting, is vitiated by errors of assessment.

114 Since, in addition, the Decision clearly set out the Commission's reasoning in reaching that conclusion, the argument that the statement of reasons was inadequate on that point cannot be upheld.

115 It is necessary, second, to consider whether, as claimed by the applicants, the Decision is vitiated by an error of law in that it disregarded the mechanism for the alignment of prices provided for by Article 60 of the ECSC Treaty.

116 In that connection, it must be borne in mind that, according to settled case-law, the purpose of the compulsory publication of prices under Article 60(2) of the Treaty is, first, as far as possible to prevent prohibited practices; second, to enable purchasers to learn exactly what prices will be charged and be able themselves to check whether any discrimination has taken place; and, third, to enable undertakings to have accurate knowledge of the prices of their competitors so as to enable them to align their prices (Case 1/54 France v High Authority [1954] ECR 7, p. 9, and Case 149/78 Rumi v Commission [1979] ECR 2523, paragraph 10).

117 However, the prices on the lists must be fixed by each undertaking independently, without any agreement, even tacit, between them. In particular, the fact that the provisions of Article 60 tend to restrict competition does not prevent application of the prohibition of agreements under Article 65(1) of the ECSC Treaty (France v High Authority, cited above, p. 14, and Case T-141/94 Thyssen Stahl v Commission [1999] II-347, paragraph 312).

118 Moreover, Article 60 of the ECSC Treaty does not provide for any contact between undertakings, prior to the publication of price lists, for the purpose of exchanging information on their future prices. In so far as such contacts prevent price lists being fixed independently, they are liable to distort normal competition within the meaning of Article 65(1) of the Treaty (Thyssen Stahl v Commission, cited above, paragraph 313).

119 In this case, it may indeed be undisputed that, pursuant to Article 60(2)(a) of the ECSC Treaty, the stainless steel producers released themselves from the obligation to publish their prices and conditions of sale by sending details of them regularly to the Commission and that, on that basis, those undertakings each notified the Commission of the amounts of the alloy surcharges which they were going to apply as from 1 February 1994 (paragraph 37 of the Decision).

120 However, the applicants cannot properly invoke the alignment mechanism provided for by the abovementioned provisions since the alignment of the reference values to be used in calculating the alloy surcharge referred to in the documents cited by the Commission in paragraphs 38, 40 and 41 of the Decision resulted not from the publication of price lists but from prior concertation between producers, at the Madrid meeting, whereby it was agreed to adopt identical reference values with a view to facilitating upward harmonisation of the alloy surcharges.

121 It follows that the Commission did not disregard the mechanism for price alignment provided for in Article 60 of the ECSC Treaty and that, therefore, the Decision is not vitiated by any error of law in that respect.

122 As regards the argument concerning differences between the German and Italian versions of the Decision, it need merely be pointed out that the wording used in paragraph 39 of the German version of the Decision regarding alignment of the prices of stainless steel flat products had no influence on the characterisation of the conduct imputed to the undertakings in question which, as already stated, related to the arrangements for applying the method of calculating the alloy surcharge and not to the final price of the abovementioned products. Therefore, the request for an expert opinion must be rejected.

123 It follows from the foregoing considerations that the present plea is unfounded and must be rejected.

3. Inadequacy of the statement of reasons concerning the definition of agreement or concerted practice

Admissibility of the plea

124 The Commission contends that, since this plea was not raised by KTS until the stage of its reply, it is a new plea which must be rejected as inadmissible pursuant to Article 48(2) of the Rules of Procedure of the Court of First Instance.

125 According to the case-law, a plea alleging absence of reasons or inadequacy of the reasons stated involves a matter of public policy which must be raised by the Community judicature of its own motion (Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 67) and, consequently, may be raised by the parties at any stage of the procedure (Case C-166/95 P Commission v Daffix [1997] ECR I-983, paragraph 25).

126 The plea is therefore admissible.

The substance of the plea

Arguments of the parties

127 KTS maintains, in its reply, that the Commission infringed Article 15 of the ECSC Treaty, which requires it to give reasons for its decisions, since it merged the charges concerning a concerted practice and an agreement.

128 The Commission replies that the fact of defining a consensus as an agreement and, in the alternative, as a concerted practice does not constitute an ambiguous statement of reasons within the meaning of the case-law (Case T-1/89 Rhône-Poulenc v Commission [1991] ECR II-867, paragraphs 119 to 124).

Findings of the court

129 The statement of reasons required by Article 15 of the ECSC Treaty must, first, be such as to enable the person concerned to ascertain the matters relied upon to justify the measure adopted so that, if necessary, he can defend his rights and verify whether the decision is well founded and, secondly, enable the Community judicature to exercise its power of review of legality. The requirement of a statement of reasons must be viewed in the context of the circumstances of the case, in particular the terms of the measure in question, the nature of the reasons relied on and the context in which the measure was adopted (Case T-57/91 NALOO V Commission [1996] ECR II-1019, paragraphs 298 and 300).

130 In this case, it is necessary to decide whether the definition of the consensus as an agreement and, in the alternative, as a concerted practice, within the meaning of Article 65(1) of the ECSC Treaty, constitutes a sufficient statement of reasons. To that end, it is necessary to consider whether the Decision adequately explains whether the preconditions for using each of those two terms are fulfilled.

131 As regards the characterisation of the consensus as an agreement, the Decision states that Article 65 of the Treaty is infringed if the parties reach a consensus which limits or is likely to limit their commercial freedom by determining the lines of their mutual action on the market or abstention from action on the market, adding that no contractual sanctions or enforcement procedures are required, nor is it necessary for such a consensus to be made in writing (paragraph 43 of the Decision).

132 With regard to the facts of this case, paragraph 44 of the Decision indicates the elements which show the existence of a consensus between the undertakings concerned. In that connection, it states first that the aim of the Madrid meeting was to secure an across-the-board increase in stainless steel prices to offset the rise in the price of alloys and that, at that meeting, a discussion took place of the different methods used in the past to calculate the alloy surcharge. It then states that, after that meeting, all the undertakings took identical action, consisting of the application to their sales in Europe as from 1 February 1994, except in Spain and Portugal, of an alloy surcharge based on the method used in 1991, taking the September 1993 prices of alloying materials as reference values.

133 Finally, the Decision observes that the consensus was confirmed in the fax from Ugine of 20 December 1993 addressed to all the producers present at the Madrid meeting, and to Outokumpu, which reflects the conclusions of that meeting, giving details of the calculation of the alloy surcharge, including the trigger values, the ECU/USD and USD/ECU rates of exchange for alloying materials (nickel, chrome, molybdenum), the reference months and the standard alloy contents.

134 In that connection, the Decision also mentions that the characterisation of the consensus as an agreement is confirmed by the contents of the circulars referred to in paragraph 41 of the Decision by which the various producers announced to their customers the reintroduction of the alloy surcharge. In one of those letters, dated 28 January 1994, Ugine Savoie UK indicated that ... it has therefore been decided at a European level to reactivate the surcharge system to take into account the increase in alloy costs since September 1993, and this surcharge will be applied generally from 1 February 1994. In another letter, dated 31 January 1994, Thyssen Fine Steels Ltd announced to its customers that we have no choice but to implement alloy surcharges on all stainless flat products in line with all other manufacturers. As in the previous surcharge situation, a clear basis for surcharge has been agreed to account for the changes in relationship between prices and costs.

135 As regards, next, characterisation of the consensus as a concerted practice, the Decision emphasises, in paragraph 45, that in any event, if the definition of the consensus as an agreement is disputed, the reintroduction by the stainless steel producers of the alloy surcharge by deliberately identical methods as to value and date is at the very least and without any doubt a concerted practice. In that connection, it is stated that anti-competitive collusion, by which undertakings inform each other in advance of the attitude each intends to adopt, so that each can regulate its commercial conduct in the knowledge that its competitors would behave in the same way cannot escape the prohibition of concerted practice.

136 Consequently, it is clear from those paragraphs of the Decision that it adequately explained the principal elements of fact and of law which prompted the Commission to take the view that the consensus in question could be defined as an agreement or, in the alternative as a concerted practice within the meaning of Article 65(1) of the ECSC Treaty. In particular, contrary to KTS's claim, the Decision clearly distinguishes between the definitions of agreement and concerted practice by characterising the constituent elements of each of them.

137 It follows that the present plea must be rejected.

C - The effects of the agreement on prices

Arguments of the parties

138 The applicants submit that the Commission has not sufficiently proved the effects of the alloy surcharge formula on the price of stainless steel flat products and, therefore, the alleged restriction of competition. They consider that the reasons given on that point are incorrect and, in any event, inadequate.

139 According to KTS, the Commission merely found, in paragraph 48 of the Decision, that the alloy surcharge might represent up to 25% of the total price of stainless steel. However, that assessment overlooks the fact that, in practice, each customer is free to purchase products on a fixed-price, rather than a variable-price, basis.

140 AST, for its part, states that the alloy surcharge is only one of the components of the final price of stainless steel and takes account of variations in the prices of the alloys only above a certain level. The major part of the final price of stainless steel was not the subject of any agreement.

141 It also considers that the Commission made unreasoned and unsupported allegations. Thus, it did not respond to the argument that the increase in stainless steel prices as from 1994 was largely attributable to the very strong increase demand - about 30% - recorded at that time. Nor did it take account of the fact that the change to the reference values agreed in Madrid ceased to have any effect as from June 1994 since the prices of alloying materials returned to the values originally specified in the calculation formula for the alloy surcharge before they were changed.

142 AST also maintains that, when assessing the restrictive effects of an agreement, account must be taken of the actual application of the new prices to customers and not of the date on which those new prices were notified to the Commission. AST did not start applying the alloy surcharge until April 1994, that is to say more than two months later than the other producers.

143 Finally, the applicants maintain that the contradictory nature of the statement of the reasons on which the Decision was based, regarding the effects of the agreement on prices, is confirmed by the differences between the German and Italian versions of paragraph 49 of the Decision. According to the German version of the Decision, the change to the alloy surcharge reference values was not the cause of the increase in price levels for stainless steel which occurred between January 1994 and March 1995, whereas, according to the Italian version, there was a specific causal link between that increase and the change in the alloy surcharge reference values. Consequently, KTS requests that an expert opinion be obtained under Article 25 of the ECSC Statute of the Court of Justice, and AST seeks the production of any relevant documents pursuant to Article 24 of the Statute of the Court Justice.

144 The Commission replies that the Decision is not vitiated by any error of assessment or any inadequacy of reasoning on that point.

145 In particular, the Decision explained clearly that the alloy surcharge constitutes a component of the final price of the products concerned and that, consequently, the aim of the agreement is to fix a part of the price. The Commission observes that it is not disputed that the alloy surcharge may represent up to 25% of the final price of the products. The information disclosed during the administrative procedure shows, in any event, that, in March 1995, the alloy surcharge accounted for 24% of the final price of cold rolled sheets and 25% of the final price of hot rolled sheets and that, for other steel qualities with a higher nickel content, the price component represented by the alloy surcharge was even higher.

146 KTS's efforts to minimise the economic importance of the infringement are negated by the statements made by KTN during the procedure to the effect that the agreement was intended to cope with a catastrophic economic situation. Moreover, the fact that the Decision does not contain any express indication that customers might buy on a fixed-price rather than a variable-price basis does not mean that the Commission did not take that into account. However, according to the case-law, the Commission is not required to discuss, in a decision, all the points of fact and law relied on by the parties during the administrative procedure.

147 The Commission also contends that the effects of the agreement on the final price of their products were not exaggerated since the Decision indicates, in that connection, that the considerable increase in stainless steel prices cannot be attributed solely to changes in the trigger values for the alloy surcharge, even if there is also a finding that the latter nevertheless made a considerable contribution to it.

148 As regards AST's alleged delay in applying the new reference values, the Commission replies that AST itself officially informed it that the new figure for the alloy surcharge, calculated on the basis of the new reference values, would be applied as from 1 February 1994. In any event, that alleged delay in implementing the agreement cannot detract from its participation in the agreement.

149 The applicants' argument based on the alleged linguistic differences in paragraph 49 of the German and Italian versions of the Decision has no basis. Even if it were accepted that the second sentence of paragraph 49 of the German version of the Decision did not indicate a causal link between application of the method for calculating the alloy surcharge and the price increase which ensued, the fact remains that the next sentence expressly states that although admittedly the increase in the price of stainless steel cannot be attributed (zurückgeführt) only to changes in the trigger levels for the alloy surcharge, the latter nevertheless made a considerable contribution to it.

Findings of the Court

150 Article 65(1) of the ECSC Treaty prohibits [a]ll 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 ..., and in particular those tending:

(a) to fix or determine prices;

...

151 According to settled case-law relating to the application of Article 85 (1) of the EC Treaty, there is no need to take account of the concrete effects of an agreement once it appears that it has as its object the prevention, restriction or distortion of competition within the meaning of that article (Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraph 99, Case C-199/92 P Hüls v Commission [1991] ECR I-4287, paragraph 178, and Case C-235/92 P Montecatini v Commission [1991] ECR I-4539, paragraph 122).

152 Similarly, concerted practices are prohibited, regardless of their effect, when they have an anti-competitive object. Although the very concept of a concerted practice presupposes conduct by the participating undertakings on the market, it does not necessarily mean that that conduct should produce the specific effect of restricting, preventing or distorting competition (Commission v Anic Partecipazioni, paragraphs 123 and 124, Hüls v Commission, paragraphs 164 and 165, and Montecatini v Commission, paragraphs 124 and 125). Also, where the Commission has established to the requisite legal standard that an undertaking has taken part in concertation intended to restrict competition, it does not have to adduce evidence that such concertation had manifested itself in conduct on the market or that it had effects restrictive of competition. On the contrary, it is for the undertaking concerned to prove that the concertation did not have any influence whatsoever on its own conduct on the market (Commission v Anic Partecipazioni, paragraph 126, and 124, and Hüls v Commission, paragraph 167).

153 Those principles also apply to the application of Article 65(1) of the ECSC Treaty. Since that provision refers to agreements tending to distort normal competition, it must be concluded that that expression includes the formula have as their object found in Article 85(1) of the EC Treaty (Thyssen Stahl v Commission, cited above, paragraph 277).

154 It follows that the Commission is not obliged, in order to establish an infringement of Article 65(1) of the ESCS Treaty, to demonstrate that there was an adverse effect on competition, provided that it has established the existence of an agreement or concerted practice intended to restrict competition (Thyssen Stahl v Commission, paragraph 277).

155 In this case, the applicants' various arguments, which merely assert that there has been no adverse effect on competition, must be rejected, in so far as they are based on a misconceived view of the evidential requirements laid down by Article 65(1) of the ECSC Treaty. The applicants do not contest the truth of the findings in paragraphs 47 and 48 of the Decision to the effect that the purpose of the agreement at issue was to restrict competition.

156 However, before examining, for the sake of completeness, the anti-competitive effects of the agreement, the Commission rightly considered that it constituted a cartel caught by the prohibition laid down by Article 65(1) of the ECSC Treaty, since its aim was to fix a component of the final price of stainless steel flat products through the use by the producers concerned, as from the same date, of the same reference values for alloying materials in the method for calculating the alloy surcharge.

157 As is confirmed by the case-law on the application of Article 85(1)(a) of the EC Treaty, the prohibition of agreements and concerted practices which directly or indirectly fix prices also extends to agreements relating to the fixing of a part of the final price (see, in particular, Case T-29/92 SPO and Others v Commission [1995] ECR II-289, paragraph 146). It follows, in particular, that AST's argument that most of the final price of stainless steel was not the subject of an agreement is irrelevant.

158 In this case, the Commission also found, in paragraph 48 of the Decision, that the agreement was liable to affect competition considerably, since, first, the undertakings concerned represented more than 90% of sales of stainless steel flat products and, second, the increase brought about by the alloy surcharge could represent up to 25% of the final price of those products.

159 It must be observed that the applicants do not contest the truth of that assessment. In that connection, KTS merely argues that the portion of the final price accounted for by the alloy surcharge was less than 25% when its customers made fixed-price rather than variable-price purchases. However, apart from the fact that such an argument does not change the fact that the price supplement represented by the alloy surcharge, calculated on the basis of the reference values agreed at the Madrid meeting, was, in principle, likely to represent a substantial part of the final price of the products, KTS does not deny that the alloy surcharge thus calculated actually had an impact on the final price of its products when its customers did not make fixed-price purchases.

160 In any event, it is important to note that the applicants have not demonstrated that the Decision is vitiated by a an error of assessment in so far as it relates to the real effects of the agreement on the market.

161 In particular, there are no grounds for alleging that the Commission exaggerated or, on the contrary, disregarded the effects of the agreement on the final price of the products. In that connection, it took the view, in paragraph 49 of the Decision, including the German version thereof, that the near doubling of the price of stainless steel between January 1994 and March 1995 could not be attributed solely to the change to the reference values for the alloy surcharge but that that change had nevertheless made a considerable contribution to it. Therefore, the argument that the German version of the Decision does not indicate a causal link between the agreement and the price rise must be rejected, and there is no need to grant the applicants' request for an expert opinion or the production of documents.

162 The argument that the change to reference values agreed in Madrid ceased to take effect when the prices of the alloying materials returned to where they stood before they were changed must also be rejected. As the Commission observed in paragraph 70 of the Decision, the fact that the price of an alloy component reached its former reference values is irrelevant since the increase in the price resulting from the alloy surcharge was necessarily higher than if the reference values had not been changed.

163 AST's argument that it applied the new reference values after a time-lapse of two months cannot be upheld. It is undisputed that AST officially informed the Commission that it would apply the new alloy surcharge with effect from 1 February 1994. Moreover, even if it were substantiated, that argument would only prove that the concertation, in which it does not deny having participated, actually influenced its own conduct on the market (see paragraph 151 above).

164 Finally, since the Decision clearly set out the reasoning followed by the Commission, the argument that the statement of reasons was inadequate must be rejected.

165 It follows from all the foregoing that the present pleas must be rejected.

D - The duration of the infringement

Arguments of the parties

166 The applicants maintain that the Commission did not properly assess the duration of the infringement and did not explain its assessment in the Decision, taking the view that the concertation commenced at the Madrid meeting in December 1993 and continued until the day on which the Decision was adopted. According to the applicants, the change to the reference values in the alloy surcharge formula decided on at the Madrid meeting was sporadic rather than continuous.

167 In that connection, they state that, neither during that meeting nor at any later stage was there any discussion concerning the maintenance of those values. It is wrong to take the view that a concerted practice continues until it is expressly brought to an end. In this case, once the price was increased, the undertakings were free to decide on their price levels taking account of market conditions, the latter being the same for all the undertakings.

168 KTS submits, in particular, that, whilst it admitted that the uniform change at the Madrid meeting to the reference values contained in the alloy surcharge formula could be regarded as a concerted practice within the meaning of Article 65(1) of the ECSC Treaty, that concertation was merely sporadic because subsequently it regularly took individual decisions changing the amounts of the alloy surcharges and the final prices. Moreover, with regard to the assessment of the duration of the infringement, the decisive factor is determination not of the alloy surcharge as a component of the final price but of the final price itself, as it is applied on the market. The infringement could not therefore be regarded as ongoing.

169 KTS adds that the Commission was not entitled to rely on its own contacts with other producers after the Madrid meeting. Paragraph 33 of the German version of the Decision contains, in that regard, a translation error which gives the impression that the author of the fax in question was still awaiting information from Krupp concerning the alloy surcharges that Krupp was going to apply (noch keine Informationen), whereas it merely stated that it had no information (we have no current information).

170 AST, for its part, claims that, although the reference values in the alloy surcharge formula were not changed following the Madrid meeting, that fact is attributable not to any agreement to prolong the infringement but to the ECSC system of price transparency and to the parallel conduct of the undertakings concerned.

171 As regards the case-law cited by the Commission, it is irrelevant since it relates to situations in which the agreements penalised continued to produce effects after they came to an end.

172 The Commission replies that, after the Madrid meeting, the alloy surcharge reference values were not changed by the applicants. The only plausible explanation for the maintenance