JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

9 December 2014 ( *1 )

‛Competition — Agreements, decisions and concerted practices — Market for concrete reinforcing bars in bars or coils — Decision finding an infringement of Article 65 CS after the expiry of the ECSC Treaty on the basis of Regulation (EC) No 1/2003 — Fixing of prices and payment terms — Limiting or controlling output or sales — Infringement of essential procedural requirements — Legal basis — Rights of the defence — Fines — Gravity and duration of the infringement — Mitigating circumstances — Taking account of an annulment judgment in a related case’

In Case T‑91/10,

Lucchini SpA, established in Milan (Italy), represented initially by M. Delfino, J.-P. Gunther, E. Bigi, C. Breuvart and L. De Sanctis, and subsequently by J.-P. Gunther, E. Bigi, C. Breuvart and D. Galli, lawyers,

applicant,

v

European Commission, represented initially by R. Sauer and B. Gencarelli, acting as Agents, assisted by M. Moretto, lawyer, and subsequently by M. Sauer and R. Striani, acting as Agent, assisted by M. Moretto,

defendant,

APPLICATION for a declaration of the non-existence of, or for the annulment of Commission Decision C(2009) 7492 final of 30 September 2009 (Case COMP/37.956 — Reinforcing bars, re-adoption), as amended by Commission Decision C(2009) 9912 final of 8 December 2009 and, in the alternative, for the annulment of Article 2 of that decision and, in the further alternative, for a reduction in the amount of the fine imposed on the applicant,

THE GENERAL COURT (Eighth Chamber),

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

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearing on 7 February 2013,

gives the following

Judgment

Legal framework

1. ECSC Treaty provisions

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

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

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

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

2. EC Treaty provisions

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

3. Regulation (EC) No 1/2003

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

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

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

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

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

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

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

Subject-matter of the dispute

12 The present case concerns an application for a declaration of the non-existence of, or for the annulment of Commission Decision C(2009) 7492 final of 30 September 2009 relating to a proceeding under Article 65 CS (Case COMP/37.956 — Reinforcing bars, re-adoption) (‘the first decision’), as amended by Commission Decision C(2009) 9912 final of 8 December 2009 (‘the amending decision’) (the first decision as amended by the amending decision being referred to hereinafter as ‘the contested decision’) and, in the alternative, for the annulment of Article 2 of the contested decision and, in the further alternative, for a reduction in the amount of the fine imposed on the applicant Lucchini SpA.

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

The applicant

14 The applicant is a public limited company whose registered office is in Milan (Italy). Until 20 April 2005, the majority of its share capital was held by natural and legal persons connected, respectively, with the Lucchini family and the Lucchini group, with the remaining shares being held by insurance companies and financial bodies. Since that date, the applicant has been controlled by the Severstal group.

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

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

Background to the dispute

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

18 On 26 March 2002, the Commission opened the administrative procedure and formulated objections under Article 36 CS (‘the statement of objections’). The applicant submitted written observations on the statement of objections. It did not request an oral hearing.

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

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

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

22 By letter of 30 June 2008, the Commission informed the applicant and the other undertakings concerned of its intention to re-adopt the decision, changing the legal basis from that which it had chosen for the 2002 decision. It also stated that, having regard to the limited scope of the judgment in SP and Others v Commission, cited in paragraph 21 above, the re-adopted decision would be based on the evidence presented in the statement of objections and the supplementary statement of objections. The undertakings concerned were allowed a period of time in which to submit their observations.

The first decision

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

‘Article 1

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

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

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

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

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

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

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

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

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

Article 2

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

— [Alfa]: EUR 7.175 million;

— [Feralpi]: EUR 10.25 million;

— [Ferriere Nord]: EUR 3.57 million;

— [IRO]: EUR 3.58 million;

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

— [Leali]: EUR 1.082 million;

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

— [Riva]: EUR 26.9 million;

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

…’

Developments after the notification of the first decision

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

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

The amending decision

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

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

Procedure and forms of order sought by the parties

46 By application lodged at the Registry of the General Court on 19 February 2010, the applicant brought the present action.

47 The applicant claims that the Court should: — as a preliminary and main point, declare the decision non-existent or null and void or, in any event, annul the decision by which the Commission imposed on it, jointly and severally with the company SP SpA, a fine of EUR 14.35 million, on the grounds of the incomplete nature of the decision and breach of essential procedural requirements, lack of competence and an error of law concerning the legal basis, and infringement of the rights of the defence and an error of law; — in the alternative, in any event, annul Article 2 of the decision of 30 September 2009 by which the Commission imposed on it a fine of EUR 14.35 million on the grounds of lack of evidence, in breach of Article 2 of Regulation No 1/2003 and Article 65 of the ECSC Treaty; — in the further alternative, fix its fine at the symbolic sum of EUR 1 000 or, in any event, reduce, by reference to its turnover, the fine imposed by the Commission, on the grounds of the incorrect application of Article 23 of Regulation No 1/2003 and the 1998 Guidelines, having regard to the gravity and duration of the infringement; — in any case, order the Commission to pay the costs.

48 The Commission contends that the Court should: — dismiss the action in its entirety; — order the applicant to pay the costs.

49 On hearing the report of the Judge-Rapporteur, the Court (Eighth Chamber) decided to open the oral procedure in the case.

50 The parties presented oral argument and answered the oral questions put to them by the Court at the hearing on 7 February 2013.

51 At the hearing, the applicant requested, pursuant to Article 48(2) of the Rules of Procedure of the General Court, permission to place on the case-file a document dated 21 December 2012 which showed that it had entered into extraordinary administration. The Commission made no objection to that request and it was granted accordingly. The Commission made observations on the document at the hearing.

Law

52 As a preliminary point, it should be observed that the action comprises three heads of claim, that is to say, an application for a declaration that the contested decision is non-existent or for the annulment of the contested decision, in the alternative, an application for the annulment of Article 2 of the contested decision and, in the further alternative, an application for a reduction in the amount of the fine imposed on the applicant.

53 In support of its action, the applicant puts forward five pleas in law. The first four pleas are put forward in support of its application for a declaration that the contested decision is non-existent or for the annulment of the contested decision and the fifth is put forward in support of its applications for the annulment of Article 2 or for a reduction in the amount of the fine imposed on it.

54 The first plea in law alleges infringement of essential procedural requirements. The second plea alleges a lack of competence on the Commission’s part and an error of law in its choice of legal basis for the contested decision. The third plea alleges infringement of the applicant’s rights of defence and an error of law. The fourth plea alleges a lack of evidence and incorrect application of the substantive law. Lastly, the fifth plea alleges that the amount of the fine is excessive, a lack of evidence and an inadequate statement of reasons, incorrect application of Article 23(2) of Regulation No 1/2003 and of the 1998 Guidelines and breach of the principle of proportionality.

1. Admissibility of the annexes to the reply

55 As a preliminary point, the Commission disputes the admissibility of the documents which the applicant produced as annexes to its reply.

56 It must be observed that the applicant in fact appended 186 annexes to its reply. It argued in this connection, in an accompanying letter which it lodged with its reply, that the production of two annexes, C.8 and C.13, had proved necessary in order for it to respond to the arguments put forward in the defence, ‘in which the Commission [had] asserted that the fact that the first Siderpotenza was controlled by the Leali group did not exclude the applicant’s joint and several liability ... and [had] reconfirmed that Lucchini was liable for the conduct of the companies which, over the years, had managed the branch of the business relating to reinforcing bars, as successor to Lucchini Siderurgica SpA ...’ It also stated that the other annexes, C.7, C.9 to C.12 and C.14 to C.186, were documents that had been sent to it on a CD-ROM, as annexures to the statement of objections, which had been mislaid and of which it had asked the Commission for copies once it had realised that it needed to see them in order to answer the arguments set out in the defence.

57 It must be recalled that, under Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure, an application must indicate the subject-matter of the proceedings and include a brief statement of the grounds relied on. The information given must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to decide the case, if necessary without other supporting information (Case T-340/03 France Télécom v Commission [2007] ECR II-107, paragraph 166).

58 According to consistent case-law it is necessary, for an action to be admissible, that the basic matters of law and fact relied on be indicated, at least in summary form, coherently and intelligibly in the application itself. While the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application (Case C-52/90 Commission v Denmark [1992] ECR I-2187, paragraph 17; orders in Case T-56/92 Koelman v Commission [1993] ECR II-1267, paragraph 21, and Case T-154/98 Asia Motor France and Others v Commission [1999] ECR II-1703, paragraph 49). The annexes may be taken into consideration only in so far as they support or supplement pleas or arguments expressly set out by applicants in the body of their pleadings and in so far as it is possible to determine precisely what are the matters they contain that support or supplement those pleas or arguments (see, to that effect, Case T-201/04 Microsoft v Commission [2007] ECR II-3601, paragraph 99).

59 Furthermore, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (Case T-84/96 Cipeke v Commission [1997] ECR II-2081, paragraph 34, and Case T-231/99 Joynson v Commission [2002] ECR II-2085, paragraph 154).

60 That interpretation of Article 21 of the Statute of the Court of Justice and Article 44(1)(c) of the Rules of Procedure of the General Court also applies to the reply (Microsoft v Commission, cited in paragraph 58 above, paragraph 95) and to pleas in law and complaints referred to in the pleadings (Case T-102/92 Viho v Commission [1995] ECR II-17, paragraph 68, and France Télécom v Commission, cited in paragraph 57 above, paragraph 166).

61 Moreover, Article 44(1) of the Rules of Procedure, relating to the particulars which an application submitted to the Court must contain, provides that an application must state ‘where appropriate, the nature of any evidence offered in support’. Similarly, according to Article 46(1) of the Rules of Procedure, the defence must state the nature of any evidence offered by the defendant.

62 Those provisions, which determine the stage of the proceedings at which the evidence offered must be produced, take into account the adversarial principle, the principle of equality of arms and the right to a fair hearing, in the interests of the sound administration of justice. In that they require the parties to make known the evidence which they offer as soon as they lodge an application or a defence, their purpose is to ensure that the parties are informed of the evidence lodged in support of the arguments put forward and to enable them to prepare an effective defence or reply, in accordance with the abovementioned principles and the right to a fair hearing. Moreover, the lodging of evidence in the initial stage of the proceedings is justified by the need to ensure the sound administration of justice, inasmuch as it enables the case-file to be prepared swiftly and the case to be dealt with expeditiously (Case C‑243/04 P Gaki-Kakouri v Court of Justice [2005], not published in the ECR, paragraph 30, and Joined Cases T‑40/07 P and T‑62/07 P de Brito Sequeira Carvalho v Commission [2009] ECR Staff Cases I‑B‑1-89 and II‑B‑1-551, paragraph 113).

63 Those two provisions are supplemented by Article 48(1) of the Rules of Procedure, which reads as follows: ‘In reply or rejoinder a party may offer further evidence. The party must, however, give reasons for the delay in offering it.’

64 That provision is also an expression of the requirement for a fair hearing and, more specifically, the requirement that the rights of the defence are protected, inasmuch as it authorises the submission of offers of evidence in situations other than those contemplated by Articles 44(1) and 46(1) of the Rules of Procedure (Gaki-Kakouri v Court of Justice, cited in paragraph 62 above, paragraph 32).

65 Since it is an exception to the rules governing the lodging of evidence offered, Article 48(1) of the Rules of Procedure requires parties to give reasons for the delay in offering their evidence. That obligation implies that the court has the power to check the merits of the reasons given for the delay in lodging the evidence offered and, depending on the case, the substance of that evidence, as well as the power to disregard the evidence if the application is not sufficiently well founded (Gaki-Kakouri v Court of Justice, cited in paragraph 62 above, paragraph 33).

66 First of all, it must be observed that the applicant has not given reasons for the delay in presenting Annexes C.1 to C.6. Moreover, those annexes contain tables drawn up by the applicant and observations which the applicant makes on other documents to which it makes only a cursory reference in its reply. Having regard to the case-law mentioned in paragraphs 57 to 60 above, to describe as an annex what are just supplementary written observations of the applicant, amounting merely to an extension of the pleadings, is incompatible with the quality that defines an annex, that is to say, its purely evidential and instrumental function. Annexes C.1 to C.6 must therefore be declared inadmissible.

67 Secondly Annexes C.8 and C.13 cannot be regarded as offers of evidence in rebuttal, since the assertions made by the Commission in paragraphs 81 and 90 of its defence, which those annexes are intended to rebut, are the same as those which it had already made in recital 541 of, and footnote 593 to the contested decision. Recital 541 and footnote 593 summarise the Commission’s central finding regarding the existence of an economic unit comprising the applicant and SP and the legal and economic continuity between Lucchini Siderurgica and the first Siderpotenza and between Lucchini and SP. It follows that Annexes C.8 and C.13 are inadmissible.

68 Thirdly, as the applicant itself has pointed out, Annexes C.7, C.9 to C.12 and C.14 to C.186 were taken from two CD-ROMs containing the documents annexed to the statement of objections which were sent to it along with the statement of objections. Those documents were also mentioned in the contested decision. The reason given by the applicant, namely that it had mislaid the CD-ROMs as a result of the time that had elapsed since it had received them and the restructuring that had taken place within the undertaking cannot, however, justify its delay in offering this evidence, since the applicant could have obtained a copy of the CD-ROMs in good time before lodging its application in this case. It must be emphasised in this connection that the applicant only asked the Commission for copies of the CD-ROMs after it received the defence. It follows that Annexes C.7, C.9 to C.12 and C.14 to C.186 are also inadmissible.

69 In any event, it must be observed that the pleadings make general reference to (a) Annexes C.7, C.10 and C.14, whose content is ‘described in greater detail’ in table 1 in Annex C.1, (b) Annexes C.7, C.5 to C.34, whose content is ‘described in greater detail’ in table 3 in Annex C.3, (c) Annexes C.10, C.14 and C.34 to C.39, whose content is ‘described in greater detail’ in table 5 in Annex C.5 and (d) Annexes C.40 to C.186, whose content is ‘summarised’ in table 6 in Annexe C.6. Consequently, these annexes are also inadmissible in accordance with the case-law mentioned in paragraphs 57 to 60 above.

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

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

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

72 The gravity of the consequences attaching to a finding that an act of an EU institution is non-existent means that, for reasons of legal certainty, such a finding is to be reserved for quite extreme situations (Commission v BASF and Others, cited in paragraph 70 above, paragraph 50, and Hoechst v Commission, cited in paragraph 70 above, paragraph 76).

73 It must immediately be observed in this case that the irregularities to which the applicant refers do not appear to be of such obvious gravity that the contested decision must be regarded as legally non-existent. The reasons are as follows.

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

74 The applicant maintains that the contested decision must be held to be non-existent or must be annulled, since the conformed copy of the first decision that was notified to it was missing its annexes, which suggests that the College of Commissioners had not approved the full act, which would constitute an infringement of the Rules of Procedure of the Commission. The applicant also submits that the amending decision does no more than notify the annexes that were missing from the first decision and that it contains three new articles the numbering of which overlaps with that of the first decision. That creates confusion as to the content of the contested decision and is contrary to the principles of legal certainty and respect for the rights of the defence.

75 More specifically, the applicant asserts, first of all, that the tables that were not appended to the first decision were an essential element of the statement of reasons on which that decision was based. The fact that they were omitted from the first decision should, therefore, lead the Court to hold the contested decision to be non-existent or, at very least, to annul it. According to the applicant, a flaw in the first decision of such gravity could not be remedied by the adoption of the amending decision.

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

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

78 The statement of reasons must, therefore, in principle be notified to the person concerned at the same time as the decision adversely affecting him (Elf Aquitaine v Commission, cited in paragraph 77 above, paragraph 149).

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

80 It is therefore necessary to verify whether, irrespective of the fact that the tables mentioned in paragraph 79 above were not annexed to the first decision, the relevant recitals of the first decision, in which the tables were referred to as support, disclosed in a clear and unequivocal fashion the reasoning followed by the Commission and enabled the applicant to ascertain the reasons for the measure.

81 It must be observed at the outset that, as the Commission points out, all of the tables missing from the first decision had been annexed to the statement of objections.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

100 Tenth, it must be pointed out that, in recital 496 of the first decision (footnote 563 [see footnote 564] to the first decision), the Commission referred generally to ‘the tables annexed to this decision’ in support of its assertion that ‘[t]he information in [its] possession ... [showed] that all the companies involved in this proceeding [had] published price lists during the period in question’. Nevertheless, it must be emphasised that recital 496 of the first decision also refers to recitals 419 to 433 thereof, which ‘list all the occasions where there is evidence that the base price was discussed by the companies (and the trade association)’. The Commission stated, in this connection, that ‘[s]ome of these occasions [had] been mentioned in connection with the question of common intent (see paragraphs (473)-(475))’, that ‘[o]n the other occasions between 1993 and 2000, what took place [had] to be described as consultation’ and that ‘[t]he aim of this consultation was to influence the behaviour of the manufacturers on the market and make manifest the behaviour each of them proposed adopting on the market, basically in connection with fixing the base price’. It is therefore apparent that the series of tables annexed to the first decision was therefore not indispensable to the proper understanding of the objections put forward by the Commission.

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

102 Having regard to the foregoing considerations, it cannot be held that the failure to annex the tables referred to in paragraph 79 above to the first decision prevented the applicant from understanding the objections set out in the first decision.

103 Secondly, the applicant refers to the case-law of the EU courts according to which the operative part and reasoning of the decision notified must correspond to those of the decision adopted by the College of Commissioners, exception being made for any corrections to spelling or grammar which may still be made to an act after its formal adoption by the College of Commissioners. In the present case, the first decision as notified to the applicant was incomplete in that its annexes were missing. It may therefore be supposed that the College of Commissioners did not approve the full act, which constitutes an infringement of the Rules of Procedure of the Commission, in particular a breach of the authentication procedure and of the principle of collegiality.

104 When questioned on this point at the hearing, the applicant stated that it withdrew its plea alleging breach of the authentication procedure for the first decision. As regards the alleged breach of the principle of collegiality, the applicant stated, in substance, that its plea arose from the fact that the College of Commissioners could not have been in a position to adopt a decision in full awareness of the facts.

105 In this connection, it must be held that the failure to annex the tables mentioned in paragraph 79 above to the first decision may entail the unlawfulness of the contested decision only if their absence made it impossible for the College of Commissioners to sanction the conduct referred to in Article 1 of the contested decision in full knowledge of the facts, that is to say, without being misled in a material respect by inaccuracies or omissions (see, to that effect and by analogy, Case T-69/89 RTE v Commission [1991] ECR II-485, paragraphs 23 to 25, Case T-290/94 Kaysersberg v Commission [1997] ECR II-2137, paragraph 88, Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95, Cimenteries CBR and Others v Commission [2000] ECR II-491, paragraph 742, and the judgment of 17 February 2011 in Case T‑122/09 Zhejiang Xinshiji Foods and Hubei Xinshiji Foods v Council, not published in the ECR, paragraphs 104 and 105).

106 Irrespective of the absence of the aforementioned tables, the facts on which the contested decision was based are set out to the requisite legal standard in the text of the decision itself (see paragraphs 81 to 102 above). Consequently, it cannot be claimed that, when it adopted the first decision, the College of Commissioners did not have full knowledge of the facts on which the measure was based. The omission was, therefore, incapable of vitiating the procedure by which the contested decision was adopted and thus calling into question the decision’s legality.

107 Thirdly, the applicant argues that the amending decision does no more than notify the annexes that were missing from the first decision and that it contains three articles the numbering of which ‘overlaps’ with that of the first decision. According to the applicant, the Commission should not have adopted a decision based on a ‘supplemental, incomplete text’ and should have adopted a decision on the basis of the text of the contested decision in its entirety. Moreover, Article 2 of the amending decision, which sets out the addressees of the decision, sits ill with Article 2 of the first decision, which set out the amounts of the fines. That confusion is unacceptable from the point of view of legal certainty and respect for the rights of the defence.

108 First of all, it must be held that the Commission’s power to adopt a particular act necessarily also includes the power to amend that act, on condition that the provisions on the relevant power and the formal requirements and the procedures laid down in that regard in the Treaty are complied with (see, to that effect, the Opinion of Advocate General Tizzano in Case C-27/04 Commission v Council [2004] ECR I-6649, points 134 and 143). It follows that the Commission was entitled to adopt the amending decision in order to append the missing tables as annexes to the contested decision. It must also be emphasised in this connection that, in the introduction to the amending decision, the Commission expressly referred to the first decision, the annexes to which had been omitted when the decision was adopted.

109 Secondly, as regards the applicant’s argument concerning the confusion allegedly created by the operative part of the amending decision, suffice it to observe that it is clear from the operative part of the amending decision that it does not ‘overlap’ with the operative part of the first decision. Article 1 of the amending decision, which alone amends the first decision, sets out precisely the amendments, which concern (a) the wording of the eight footnotes listed and corrected in Article 1 and (b) the addition, as annexes to the contested decision, of the tables annexed to the amending decision. Moreover, Article 2 of the amending decision does no more than list the addressees of the decision.

110 It follows that reading the first decision together with the amending decision does not lead to confusion and, consequently, no breach of the principles of legal certainty and respect for the applicant’s rights of defence arising from such confusion has been established.

111 The first plea in law must therefore be rejected.

The second plea in law, alleging a lack of competence on the Commission’s part and an error of law in its choice of legal basis for the contested decision

112 In the context of its second plea, the applicant submits that the contested decision is unlawful since, once the ECSC Treaty had expired, the Commission no longer had competence to adopt the contested decision on the basis of Article 65(1) CS.

113 In the first place, the expiry of the ECSC Treaty necessarily meant that the Commission no longer had competence to apply its provisions.

114 First, in accordance with Articles 54 and 70 of the Vienna Convention on the Law of Treaties of 23 May 1969, a convention between States that has expired can no longer serve as the basis for obligations or found competence, unless the contracting States express a contrary intention. Article 65(1) CS cannot, therefore, be applied retroactively, ‘even as to its substantive content’, unless there is a specific transitional provision, which there is not.

115 Secondly, the Commission cannot rely on the ‘similarity’ between Article 65 CS and Article 81 EC, which do not completely ‘coincide’, in order to attribute competence to itself and fine the applicant.

116 Thirdly, the combined application of Regulation No 1/2003 and Article 65 CS, when the latter provision is no longer in force, is equally incapable of providing a valid basis for the imposition of fines and infringes the principle of legal certainty as well as the principle of conferred powers and the principle that offences and punishments are to be strictly defined by law (nullum crimen, nulla poena sine lege), since it is indisputably clear from the provisions of Regulation No 1/2003 that, under that regulation, the Commission may only impose fines in respect of infringements of Articles 81 EC and 82 EC. By basing the contested decision on Articles 7 and 23 of Regulation No 1/2003, the Commission once again extended the temporal application of Article 65(1) CS, in clear breach of the powers of the Council, rather than complying with the judgment in SP and Others v Commission, cited in paragraph 21 above, which annulled the 2002 decision.

117 In its reply, the applicant adds that the principles governing the temporal succession of rules cannot in this case justify the application of Article 65 CS to facts arising at a time when that Treaty was in force, since provisions which are no longer in force cannot be applied where to do so would infringe the principle of conferred powers. It also asserts that the Commission was not entitled to initiate fresh proceedings under Regulation No 1/2003 because its powers to bring proceedings and to impose fines were time-barred under Article 25 of that regulation.

118 In the second place, the applicant maintains that, since the FEU Treaty was already in force when the Commission adopted the amending decision, it should have re-adopted the contested decision on the basis of this new Treaty, for reasons connected with the principle of legal certainty and with the principles governing the temporal succession of rules

119 In its rejoinder, the Commission argues, as a preliminary point, that the objection that its powers to establish and fine the infringement in question were time-barred was not put forward in the application and is inadmissible.

120 It is clear from Article 48(2) of the Rules of Procedure that no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure. However, a plea which may be regarded as amplifying a plea put forward previously, whether directly or by implication, in the originating application, and which is closely connected therewith, will be declared admissible (Case T-252/97 Dürbeck v Commission [2000] ECR II-3031, paragraph 39, confirmed on appeal by the order in Case C-430/00 P Dürbeck v Commission [2001] ECR I-8547, paragraph 17). The same applies to a submission made in support of a plea in law (Joynson v Commission, cited in paragraph 59 above, paragraph 156).

121 On the other hand, an objection put forward in the reply that cannot be regarded as amplifying a plea because it rests on factual and legal arguments that are new, and which is based on information that was known to the applicant when it brought its action, must be declared inadmissible (Case T‑474/08 Umbach v Commission [2010], not published in the ECR, paragraph 60).

122 In the present case, it must be held that the objection that the Commission’s power to impose penalties is time-barred was not raised in the application and does not amplify any plea put forward in the application. It is therefore inadmissible.

123 Moreover, the Court must also reject as inadmissible, in accordance with the case-law referred to in paragraph 57 above, the objection which the applicant bases on the entry into force of the FEU Treaty before the amending decision was adopted, which is wholly unsupported.

The choice of the legal basis for the contested decision

125 Within that legal order, the institutions have conferred powers only. For that reason, Community measures refer in their preamble to the legal basis which enables the institution concerned to act in the field in question. The choice of the appropriate legal basis has constitutional significance (see SP and Others v Commission, cited in paragraph 21 above, paragraph 71, and ThyssenKrupp Stainless v Commission, cited in paragraph 124 above, paragraph 64 and the case-law cited).

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

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

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

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

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

130 First of all, it must be recalled that the provision which forms the legal basis of an act and empowers the Union institution to adopt the act in question must be in force at the time when the act is adopted (Case C-269/97 Commission v Council [2000] ECR I-2257, paragraph 45, Joined Cases C-201/09 P and C-216/09 P ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others [2011] ECR I-2239, paragraph 75, Case C-352/09 P ThyssenKrupp Nirosta v Commission [2011] ECR I-2359, paragraph 88, SP and Others v Commission, cited in paragraph 21 above, paragraph 118, and ThyssenKrupp Stainless v Commission, cited in paragraph 124 above, paragraph 74). That is indisputably the case in so far as concerns Article 7(1) and Article 23(2) of Regulation No 1/2003, which form the legal basis of the contested decision.

131 Secondly, it is important to emphasise that the Community Treaties established a single legal order in which, as is reflected in Article 305(1) EC, the ECSC Treaty constituted a specific regime derogating from the rules of general application established by the EC Treaty (see Case T-405/06 ArcelorMittal Luxembourg and Others v Commission [2009] ECR II-789, paragraph 57, and ThyssenKrupp Stainless v Commission, cited in paragraph 124 above, paragraph 75 and the case-law cited).

132 By virtue of Article 305(1) EC, the ECSC Treaty thus constituted a lex specialis derogating from the lex generalis of the EC Treaty (Case 239/84 Gerlach [1985] ECR 3507, paragraphs 9 to 11, Opinion 1/94 [1994] ECR I-5267, paragraphs 25 to 27, SP and Others v Commission, cited in paragraph 21 above, paragraph 111, and ThyssenKrupp Stainless v Commission, cited in paragraph 124 above, paragraph 76, confirmed on appeal by ThyssenKrupp Nirosta v Commission, cited in paragraph 130 above, paragraphs 70 and 73).

133 It follows that the rules of the ECSC Treaty and all the provisions adopted in implementation of that treaty remained in force as regards the functioning of the common market, notwithstanding the supervening EC Treaty (Gerlach, cited in paragraph 132 above, paragraph 9, Joined Cases C-74/00 P and C-75/00 P Falck and Acciaierie di Bolzano v Commission [2002] ECR I-7869, paragraph 100, and ThyssenKrupp Stainless v Commission, cited in paragraph 124 above, paragraph 77, confirmed on appeal by ThyssenKrupp Nirosta v Commission, cited in paragraph 130 above, paragraphs 70 and 73).

134 Nevertheless, in so far as matters were not the subject of provisions in the ECSC Treaty or of rules adopted under it, the EC Treaty and the provisions adopted for its implementation could, even before the expiry of the ECSC Treaty, apply to products covered by the ECSC Treaty (Case 328/85 Deutsche Babcock [1987] ECR 5119, paragraph 10, Falck and Acciaierie di Bolzano v Commission, cited in paragraph 133 above, paragraph 100, judgment of 25 October 2007 in Case T‑94/03 Ferriere Nord v Commission, not published in the ECR, paragraph 83, and ThyssenKrupp Stainless v Commission, cited in paragraph 124 above, paragraph 78, confirmed on appeal by ThyssenKrupp Nirosta v Commission, cited in paragraph 130 above, paragraphs 70 and 73).

135 Pursuant to Article 97 thereof, the ECSC Treaty expired on 23 July 2002. Consequently, on 24 July 2002, the scope of the general scheme resulting from the EC Treaty was extended to the sectors which were initially governed by the ECSC Treaty (ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 131 above, paragraph 58, and ThyssenKrupp Stainless v Commission, cited in paragraph 124 above, paragraph 79, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 130 above, paragraphs 59 and 63, and ThyssenKrupp Nirosta v Commission, cited in paragraph 130 above, paragraphs 70 and 73).

136 Although the change from the legal framework of the ECSC Treaty to that of the EC Treaty has led, since 24 July 2002, to a change of legal bases, procedures and applicable substantive rules, that change is part of the unity and continuity of the Community legal order and its objectives (Case T-25/04 González y Díez v Commission [2007] ECR II-3121, paragraph 55, ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 131 above, paragraph 59, and ThyssenKrupp Stainless v Commission, cited in paragraph 124 above, paragraph 80, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 130 above, paragraphs 60 and 63, and ThyssenKrupp Nirosta v Commission, cited in paragraph 130 above, paragraphs 71 and 73).

137 In this connection, it must be observed that the introduction and maintenance of a system of free competition, within which the normal conditions of competition are safeguarded and which is at the origin of the rules on State aid and cartels between undertakings, is one of the essential objectives of both the EC Treaty and the ECSC Treaty (ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 131 above, paragraph 60, and ThyssenKrupp Stainless v Commission, cited in paragraph 124 above, paragraph 81 and the case-law cited, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 130 above, paragraphs 60 and 63, and ThyssenKrupp Nirosta v Commission, cited in paragraph 130 above, paragraphs 71 and 73).

138 In that context, although the rules of the ECSC and EC Treaties governing the sphere of collusive conduct between undertakings diverge to a certain extent, it must be emphasised that the concepts of agreements and concerted practices within the meaning of Article 65(1) CS correspond to those on collusive conduct and concerted practices within the meaning of Article 81 EC and that both provisions have been interpreted in the same way by the EU judicature. Thus, the pursuit of the objective of undistorted competition in the sectors which initially fell within the common market in coal and steel is not suspended by the fact that the ECSC Treaty has expired, since that objective is also pursued in the context of the EC Treaty, by the same institution, namely the Commission, the administrative authority responsible for implementing and developing competition policy in the general interest of the European Community (ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 131 above, paragraph 61, and ThyssenKrupp Stainless v Commission, cited in paragraph 124 above, paragraph 82 and the case-law cited, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 130 above, paragraphs 60 and 63, and ThyssenKrupp Nirosta v Commission, cited in paragraph 130 above, paragraphs 71 and 73).

139 The continuity of the Community legal order and the objectives which govern its functioning thus require that, in so far as it succeeds the European Coal and Steel Community and in its own procedural framework, the European Community ensures, in respect of situations which came into being under the ECSC Treaty, compliance with the rights and obligations which applied eo tempore to both Member States and individuals under the ECSC Treaty and the rules adopted for its application. That requirement applies all the more in so far as the distortion of competition resulting from non-compliance with the rules on agreements and collusive conduct between undertakings is liable to extend its effects to a time after the expiry of the ECSC Treaty when the EC Treaty applies (see ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 131 above, paragraph 63, and ThyssenKrupp Stainless v Commission, cited in paragraph 124 above, paragraph 83 and the case-law cited, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 130 above, paragraphs 62 and 63, and ThyssenKrupp Nirosta v Commission, cited in paragraph 130 above, paragraphs 72 and 73).

140 The Court of Justice has also pointed out that the succession of the ECSC, EC and FEU Treaties ensures, in order to guarantee free competition, that any conduct corresponding to the factual elements set out in Article 65(1) CS, whether taking place before or after 23 July 2002, could be and still can be penalised by the Commission (ThyssenKrupp Nirosta v Commission, cited in paragraph 130 above, paragraphs 65 to 67 and 77, and ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 130 above, paragraphs 55 to 57 and 65).

141 Moreover, it follows from the case-law that, in accordance with a principle common to the legal systems of the Member States whose origins may be traced back to Roman law, when legislation is amended, unless the legislature expresses a contrary intention, the continuity of the legal system must be ensured, and that that principle applies to amendments to the primary law of the European Union (Case 23/68 Klomp [1969] ECR 43, paragraph 13, and ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 130 above, paragraph 63).

142 There is no indication that the EU legislature wished it to be possible for concerted practices prohibited under the ECSC Treaty entirely to escape the application of penalties after that treaty expired (ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 130 above, paragraph 64).

143 First, the Court of Justice has pointed out that the Council and the representatives of the governments of the Member States had indicated that they were ready to adopt all necessary measures to cope with the consequences of the expiry of that treaty. Secondly, it has emphasised that the Commission had stated that it had to put forward proposals for transitional provisions only if such a step was thought to be necessary, and that, having regard to the general principles of law applicable, it had considered that there was no such necessity in the field of the law on cartels (ThyssenKrupp Nirosta v Commission, cited in paragraph 130 above, paragraph 75).

144 Consequently, the appellant cannot derive any valid argument from the lack of transitional provisions in this field (see, to that effect, ThyssenKrupp Nirosta v Commission, cited in paragraph 130 above, paragraph 76).

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

146 It follows from the foregoing that, contrary to the applicant’s contention, Regulation No 1/2003 and, more particularly, Article 7(1) and Article 23(2) thereof, must be interpreted as enabling the Commission to find and penalise, after 23 July 2002, cartels in the sectors falling within the scope of the ECSC Treaty ratione materiae and ratione temporis, even though those provisions of Regulation No 1/2003 do not expressly refer to Article 65 CS (see ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 131 above, paragraph 64, and ThyssenKrupp Stainless v Commission, cited in paragraph 124 above, paragraph 84 and the case-law cited, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 130 above, paragraph 74, and ThyssenKrupp Nirosta v Commission, cited in paragraph 130 above, paragraphs 72, 73 and 87). The arguments which the applicant puts forward in this connection, by which it seeks to establish that the combined application of Regulation No 1/2003 and Article 65 CS, when the latter provision is no longer in force, is incapable of providing a valid basis for the imposition of fines and infringes the principle of conferred powers, must therefore be rejected.

147 In addition, the application, within the EU legal order, of rules of the EC Treaty in a field which was originally governed by the ECSC Treaty must take effect in conformity with the principles governing the temporal application of the law. In this connection, it is settled case-law that, while procedural rules are generally held to apply to all disputes pending at the time when such rules enter into force, that is not the case with substantive rules. The latter must, in order to ensure observance of the principles of legal certainty and the protection of legitimate expectations, be interpreted as applying to situations existing before their entry into force only in so far as it is clear from their wording, objectives or general scheme that such an effect must be given to them (Joined Cases 212/80 to 217/80 Meridionale Industria Salumi and Others [1981] ECR 2735, paragraph 9, Case 21/81 Bout [1982] ECR 381, paragraph 13, Case T-42/96 Eyckeler & Malt v Commission [1998] ECR II-401, paragraph 55, ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 131 above, paragraph 65, and ThyssenKrupp Stainless v Commission, cited in paragraph 124 above, paragraph 85, confirmed on appeal by ThyssenKrupp Nirosta v Commission, cited in paragraph 130 above, paragraph 79).

148 From that point of view, as regards the question of the substantive provisions applicable to a legal situation which was definitively established before the expiry of the ECSC Treaty, the continuity of the EU legal order and the requirements relating to the principles of legal certainty and the protection of legitimate expectations require the application of substantive provisions drawn from the ECSC Treaty to the facts which fall within their scope of application ratione materiae and ratione temporis. The possibility that, by reason of the expiry of the ECSC Treaty, the regulatory framework in question is no longer in force at the time when the assessment of the factual situation is carried out does not alter that situation since the assessment concerns a legal situation which was definitively established at a time when substantive provisions adopted under the ECSC Treaty were applicable (ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 131 above, paragraph 66, and ThyssenKrupp Stainless v Commission, cited in paragraph 124 above, paragraph 86, confirmed on appeal by ThyssenKrupp Nirosta v Commission, cited in paragraph 130 above, paragraph 79; see also, to that effect, Ferriere Nord v Commission cited in paragraph 134 above, paragraph 96).

149 In the present case, as regards the substantive rules, it must be observed that the contested decision concerns a legal situation which had definitively come into being before the ECSC Treaty expired on 23 July 2002, the infringement spanning the period from 6 December 1989 to 4 July 2000 (see paragraph 37 above). In the absence of any retroactive effect of the substantive competition law applicable since 24 July 2002, it must be held that Article 65(1) CS is the substantive rule applicable and actually applied by the Commission in the contested decision, bearing in mind that it follows precisely from the lex generalis nature of the EC Treaty by comparison with the ECSC Treaty, enshrined in Article 305 EC, that the specific regime resulting from the ECSC Treaty and from the rules enacted for its implementation is, in accordance with the principle lex specialis derogat legi generali, alone applicable to situations which came into being prior to 24 July 2002 (see, to that effect, ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 131 above, paragraph 68, and ThyssenKrupp Stainless v Commission, cited in paragraph 124 above, paragraph 89, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 130 above, paragraph 77, and ThyssenKrupp Nirosta v Commission, cited in paragraph 130 above, paragraph 79).

150 It follows that the applicant cannot maintain that the principle that offences and punishments are to be strictly defined by law requires that the substantive rule on the basis of which a penalty is imposed must be in force not only when the unlawful act is committed but also when the decision imposing the penalty is adopted.

151 Moreover, the Court has pointed out that the principle that offences and punishments are to be strictly defined by law, as enshrined in particular in Article 49(1) of the Charter of Fundamental Rights of the European Union, requires that EU rules define offences and penalties clearly (see ThyssenKrupp Nirosta v Commission, cited in paragraph 130 above, paragraph 80 and the case-law cited).

152 Furthermore, the principle of legal certainty requires that such rules enable those concerned to know precisely the extent of the obligations which are imposed on them, and that those persons must be able to ascertain unequivocally what their rights and obligations are and take steps accordingly (see ThyssenKrupp Nirosta v Commission, cited in paragraph 130 above, paragraph 81 and the case-law cited).

153 In so far as the Treaties defined clearly, before the material time, the infringements and the nature and extent of the penalties which could be imposed in respect of them, the above principles do not aim to guarantee to undertakings that subsequent amendments to the legal bases and procedural rules will enable them to escape all penalties relating to their past infringements (ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 130 above, paragraph 70, and ThyssenKrupp Nirosta v Commission, cited in paragraph 130 above, paragraph 83).

154 It must be observed that a diligent undertaking in the applicant’s position could not at any time have been unaware of the consequences of its conduct or count on the fact that the change from the legal framework of the ECSC Treaty to that of the EC Treaty would have the consequence of allowing it to escape all penalties for infringements of Article 65 CS committed in the past (ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 130 above, paragraph 73, and ThyssenKrupp Nirosta v Commission, cited in paragraph 130 above, paragraph 86).

155 Moreover, the contested decision was adopted on the basis of Article 7(1) and Article 23(2) of Regulation No 1/2003, following a procedure carried out in accordance with Regulation No 17 and Regulation No 1/2003. The provisions concerning the legal basis and the procedure followed up to the adoption of the contested decision fall within the scope of procedural rules for the purposes of the case-law referred to in paragraph 147 above. Since the contested decision was adopted after the expiry of the ECSC Treaty, the Commission was right to apply the rules contained in Regulation No 1/2003 (see ArcelorMittal Luxembourg and Others v Commission, cited in paragraph 131 above, paragraph 67, and ThyssenKrupp Stainless v Commission, cited in paragraph 124 above, paragraph 87 and the case-law cited, confirmed on appeal by ArcelorMittal Luxembourg v Commission and Commission v ArcelorMittal Luxembourg and Others, cited in paragraph 130 above, paragraph 74, and ThyssenKrupp Nirosta v Commission, cited in paragraph 130