Judgment of the Court of First Instance (Second Chamber, extended composition) of 11 March 1999. - Thyssen Stahl AG v Commission of the European Communities. - ECSC Treaty - Competition - Agreements between undertakings, decisions by associations of undertakings and concerted practices - Price-fixing - Market sharing - Systems for the exchange of information. - Case T-141/94.



European Court reports 1999 Page II-00347



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

1 ECSC - Agreements, decisions and concerted practices - Administrative proceedings - Principle of ex proprio motu investigation - Commission under an obligation to investigate - Limits

(ECSC Treaty, Art. 65)

2 ECSC - Agreements, decisions and concerted practices - Administrative proceedings - Observance of the rights of the defence - Whether the Commission is obliged to reopen the oral procedure following an internal investigation after the hearing - No such obligation

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

3 ECSC - Agreements, decisions and concerted practices - Administrative proceedings - Similarities between the statement of objections and the decision finding an infringement - Observance of the rights of the defence

(ECSC Treaty, Art. 15)

4 Acts of the institutions - Drafting procedure - Commission decision - Obligation on the Commissioners - Accordance between the decision adopted and the decision notified

5 Acts of the institutions - Rules of Procedure of the Commission - Authentication of acts adopted - Documents `annexed' to the minutes - Meaning

(1993 Rules of Procedure of the Commission, Art. 16, first para.)

6 ECSC - Agreements, decisions and concerted practices - Prohibited - Infringement - Proof thereof

(ECSC Treaty, Art. 65)

7 ECSC - Agreements, decisions and concerted practices - Agreements between undertakings - Concept - Common intentions as to future market conduct

(ECSC Treaty, Art. 65(1); EC Treaty, Art. 85(1))

8 ECSC - Agreements, decisions and concerted practices - Concerted practice - Concept - Coordination and cooperation incompatible with the obligation for each undertaking to determine its market conduct independently - System for the exchange of information

(ECSC Treaty, Arts 4(d) and 65(1); EC Treaty, Art. 85(1))

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

(ECSC Treaty, Art. 65(1); EC Treaty, Art. 85(1))

10 ECSC - Article 65 of the Treaty - Interpretation - Protection of residual competition

(ECSC Treaty, Art. 65)

11 ECSC - Prices - Price lists - Compulsory publication - Purpose - Compatible with the prohibition of agreements, decisions and concerted practices

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

12 ECSC - Agreements, decisions and concerted practices - Prohibited - System for the exchange of information - Appreciable influence on the conduct of participant undertakings - Anti-competitive

(ECSC Treaty, Art. 65(1))

13 ECSC - Agreements, decisions and concerted practices - Price-fixing agreements - Encouragement from the Commission - Encouragements misconstrued - Consequences

(ECSC Treaty, Art. 65(1))

14 ECSC - Agreements, decisions and concerted practices - Prohibited - Justification put forward - Toleration or laxity on the part of the Commission - Not permissible

(ECSC Treaty, Art. 65(1) and (4))

15 Actions for annulment - Pleas in law - Misuse of powers - Meaning - Decision imposing fines for infringement of the competition rules - Vitiated by misuse of powers only in exceptional circumstances

(ECSC Treaty, Arts, 3, 4, 33 and 65(1) and (5))

16 Acts of the institutions - Statement of reasons - Obligation - Scope - Decision imposing fines for infringement of the competition rules - Desirable that the method of calculating the fine be disclosed

(ECSC Treaty, Arts 15 and 65(1))

17 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Aggravating circumstances - Recidivism (where an undertaking has already been penalised for similar infringements) - Concept

(ECSC Treaty, Art. 65(5))

18 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Financial difficulties of the undertaking concerned - May be taken into consideration - Whether obligatory - No such obligation

(ECSC Treaty, Art. 65(5))

19 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Whether the anti-competitive effects of an infringement are to be taken into account - Limits

(ECSC Treaty, Art. 65(5))

20 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Possibility of raising the level of fines

(ECSC Treaty, Art. 65(5))

21 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Cases in which the fine is fixed by the Community judicature - Unlimited jurisdiction

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

22 ECSC - Agreements, decisions and concerted practices - Fines - Interest payable in cases of postponed payment - Effect of actions pending - No effect

(ECSC Treaty, Art. 39)

Summary

1 Having regard to the principle of ex proprio motu investigation, when the Commission finds itself facing allegations of importance for the defence of undertakings concerned by a proceeding pursuant to Article 65 of the ECSC Treaty and when, in the case of allegations that a Commission department encouraged those undertakings to implement the practices of which they are accused, the Commission is therefore, with regard to the conduct of its own departments, in a privileged position, compared with those undertakings, to establish whether those allegations are true or false, it follows from the principles of sound administration and equality of arms that it is under an obligation to examine seriously that aspect of the case-file in order to determine whether or not those allegations are well founded and, if so, to what extent. However, it is for the Commission, not the undertakings, to decide how to conduct such an examination.

2 In proceedings pursuant to Article 65 of the ECSC Treaty, the guarantee of the rights of the defence afforded by the first paragraph of Article 36 of the Treaty does not require the Commission to reply to all the arguments of the party concerned, or to carry out further investigations or to hear witnesses put forward by the party concerned, where it considers that the preliminary investigation of the case has been sufficient.

Where a hearing has provided the undertakings concerned with an opportunity to set out their position in detail, the mere fact that they produced certain documents after the hearing and that the Commission then decided to open an internal investigation is not, in itself, such as to oblige the Commission to reopen the oral procedure after that investigation has been concluded.

In such cases, the rights of defence of the undertakings concerned are sufficiently respected where the Commission informs them of the results of the investigation, indicating that the documents which they have provided do not justify a second hearing; and their procedural rights are sufficiently guaranteed by their right to bring an action before the Court of First Instance.

3 The reproduction, in a decision finding that the competition rules have been infringed, of the text of certain passages in the statement of objections indicates in itself only that the Commission has maintained its point of view. In the absence of any other relevant evidence, such similarity between texts does not establish that the Commission failed, when assessing the case, to give proper consideration to the arguments which the party concerned set out in its defence.

4 The operative part and reasoning of a decision notified to the person or persons to whom that decision is addressed must correspond to those of the decision adopted by the college of Commissioners, exception being made for any corrections merely of spelling or grammar which may still be made to the text of an act after its formal adoption by that college.

The fact that a decision has been adopted in the form of two documents, the second of which contains a number of amendments, some handwritten, to the first, is irrelevant where it has not been possible to identify any substantive difference between the version of the decision adopted by the college and the version notified to addressees. Likewise, the fact that in some language versions the two documents have inconsistent page numbering or different character fonts is irrelevant where the intellectual component and the formal component of those documents, read in conjunction, corresponds to the version of the decision notified to addressees.

5 The purpose of the first paragraph of Article 16 of the Commission's 1993 Rules of Procedure, under which `[i]nstruments adopted by the Commission in the course of a meeting or by written procedure shall be annexed, in the authentic language or languages, to the [minutes] of the meeting at which they were adopted or at which note was taken of their adoption', is to ensure that the Commission has duly adopted the instrument in the form notified to the party to whom it is addressed.

Since the first paragraph of Article 16 of the 1993 Rules of Procedure does not define how instruments adopted in the course of a meeting are to be `annexed' to the minutes - in contrast to Article 16 of the Commission's Rules of Procedure, as subsequently amended, which provides that the instruments in question are to be attached to the minutes `in such a way that they cannot be separated' - it can be assumed that, when the minutes are received by the Court of First Instance, accompanied by the documents constituting the adopted act, in the same container (which Commission officials state to have received as such from the Commission's Secretariat-General), those documents are `annexed' to the minutes in the sense that they have been placed with those minutes, without being physically attached to them.

In those circumstances, and regard being had to the presumption of validity which Community measures enjoy, those documents must therefore be regarded as having been authenticated by the signatures of the President and the Secretary-General on the first page of the minutes.

6 Attendance by an undertaking at meetings involving anti-competitive activities suffices to establish its participation in those activities, in the absence of proof capable of establishing the contrary.

7 The common desire expressed by undertakings to conduct themselves on the market in a particular manner in regard to prices constitutes an agreement within the meaning of Article 65(1) of the ECSC Treaty. There is no reason to interpret the concept of `agreement' in Article 65(1) of the ECSC Treaty differently from the concept of `agreement' in Article 85(1) of the EC Treaty.

8 The concept of concerted practice must be construed having regard to the purpose of Article 65(1) and the legal framework of the ECSC Treaty. Admittedly, the steel market is an oligopolistic market, characterised by the system of Article 60 of the Treaty which ensures - through the compulsory publication of price lists and transportation charges - publicity for the prices charged by the various undertakings. However, the resulting immobility or parallelism of prices are not, in themselves, contrary to the Treaty if they result, not from an agreement - even tacit - between the parties concerned, but from the interplay of the strengths and strategies of independent and opposed economic units on the market. It follows that the idea that every undertaking must determine independently the market policy which it intends to pursue, without collusion with its competitors, is inherent in the ECSC Treaty and particularly in Articles 4(d) and 65(1) thereof.

The prohibition by Article 65(1) of the ECSC Treaty of `concerted practices' in principle has the same purpose as the parallel prohibition of `concerted practices' in Article 85(1) of the EC Treaty. More particularly, it seeks to ensure the effectiveness of the prohibition under Article 4(d) of the Treaty by bringing under that prohibition a form of coordination between undertakings which, without having reached the stage where an agreement properly so-called has been concluded, knowingly substitutes practical cooperation between the undertakings for the risks of normal competition under the Treaty.

Where an undertaking reveals to its competitors - during one of a series of regular meetings at which most of them are present - what its future market conduct will be in regard to prices, calling on them to adopt the same conduct, and thus acts with the express intention of influencing their future competitive activities, and where that undertaking can reasonably count on its competitors complying in large measure with that request or, at least, on their bearing it in mind when deciding on their own commercial policy, the undertakings in question are in those circumstances substituting practical cooperation between themselves for the risks of normal competition under the Treaty, and such conduct must be classified as a concerted practice within the meaning of Article 65(1) thereof.

Undertakings also engage in a concerted practice within the meaning of that provision where they actually take part in a scheme designed to eliminate uncertainty as to their future market conduct and necessarily implying that each of them takes into account the information obtained from its competitors. It is not necessary, therefore, to demonstrate that such exchanges of information led to a specific result or were put into effect on the market in question.

9 In so far as Article 65(1) of the ECSC Treaty refers to agreements `tending' to distort normal competition, that expression encompasses the formula `have as their object' found in Article 85(1) of the EC Treaty. Consequently, in order to establish an infringement of Article 65(1) of the Treaty, it is not necessary to demonstrate that there was an adverse effect on competition.

10 While it is true that the oligopolistic character of the markets covered by the ECSC Treaty may, to some extent, weaken the effects of competition, that consideration cannot justify an interpretation of Article 65 authorising undertakings to behave in such a way as to reduce competition even further, particularly through price-fixing. In view of the consequences which the oligopolistic structure of the market may have, it is all the more necessary to protect residual competition.

11 The purpose of the compulsory publication of prices under Article 60(2) of the ECSC Treaty is, first, as far as possible to prevent prohibited practices; second, to enable purchasers to learn exactly what prices will be charged and be able themselves to check whether any discrimination has taken place; and, third, to enable undertakings to have an accurate knowledge of the prices of their competitors so as to enable them to align their prices.

The fact that the provisions of Article 60 tend to restrict competition does not prevent application of the prohibition of agreements laid down in Article 65(1) of the Treaty. The prices which appear in the price lists must be fixed by each undertaking independently, without any agreement - even tacit - between them.

12 Article 65(1) of the ECSC Treaty is based on the principle that every trader must determine independently the policy which he intends to follow on the common market.

A system for the exchange of information concerning the participant undertakings' orders and deliveries on the main Community markets, broken down by undertaking and Member State - where such information is up-to-date, intended solely for producers party to the arrangement (to the exclusion of consumers and other competitors), and having regard to the homogenous nature of the products concerned and the degree of market concentration - appreciably influences the behaviour of the participant undertakings and substitutes practical cooperation between them for the normal risks of competition.

13 No provision in the ECSC Treaty authorises anti-competitive pricing agreements and neither the Council, the Commission nor the undertakings may ignore the provisions of Article 65(1) of the Treaty or exempt themselves from their obligation to comply with them.

It follows that, even on the assumption that price agreements concluded within the Eurofer/Scandinavia group were concluded under the arrangements limiting trade between the Community and certain Scandinavian countries (Sweden, Norway and Finland) and that the Commission and/or the authorities of those countries encouraged or tolerated them, at least indirectly, such agreements none the less infringed Article 65(1) of the Treaty in so far as they fixed prices on the Danish market.

14 The provisions of Article 65(4) of the ECSC Treaty, to the effect that agreements or decisions prohibited under Article 65(1) are `automatically void', have an objective content and are binding both on undertakings and the Commission, which cannot exempt those undertakings. In those circumstances, toleration or administrative laxity cannot alter the fact that a breach of Article 65(1) is an infringement of the Treaty.

This is particularly so when such toleration (if assumed to have been established) is practised by the Commission Directorate-General responsible for industrial affairs, not that responsible for competition matters. Should undertakings have the slightest doubt as to whether their conduct is lawful, they must contact the departments responsible for competition matters in order to clarify the situation.

15 A measure may amount to a misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken with the exclusive purpose, or at any rate the main purpose, of achieving an end other than that stated or of evading a procedure specifically prescribed by the ECSC Treaty for dealing with the circumstances of the case.

The prosecution and punishment of infringements in competition matters are a legitimate objective of Commission action, in accordance with the fundamental provisions of Articles 3 and 4 of the ECSC Treaty. If the commission of such infringements has actually been proved and it has been established that the fines have been calculated in an objective and proportionate way, the decision imposing such fines, in accordance with Article 65(5) of the Treaty, cannot be regarded as being vitiated by misuse of powers except in exceptional circumstances.

In that connection, neither the co-existence of parallel negotiations between the Commission and the industry concerning the restructuring of the European steel industry, nor the `coincidence' of the failure of those negotiations with the adoption of a decision finding that the main undertakings operating in that sector have infringed the competition rules constitutes per se evidence of misuse of powers.

16 The statement of reasons required under Article 15 of the ECSC Treaty must enable the person concerned to ascertain the matters relied upon to justify the measure adopted so that, if necessary, he can defend his rights and verify whether the decision is well founded; secondly, it must enable the Community judicature to review the legality of that measure. So far as a decision imposing fines on several undertakings for a breach of Community competition rules is concerned, the scope of the obligation to provide reasons must, in particular, be assessed in light of the fact that the gravity of the infringements must be determined by reference to a variety of factors such as the particular circumstances of the case, its context and the dissuasive effect of fines, there being no binding or exhaustive list of criteria which must be applied. Furthermore, the Commission enjoys a margin of discretion when fixing the amount of each fine and cannot be regarded as being obliged to apply a precise mathematical formula for that purpose.

It is desirable for undertakings - in order to be able to define their position in full knowledge of the facts - to be able to determine in detail, in accordance with any system which the Commission might consider appropriate, the method of calculation of the fine imposed upon them without being obliged, in order to do so, to bring court proceedings contesting the decision.

This applies a fortiori where the Commission has used detailed arithmetical formulas to calculate the fines. It is desirable in such cases that the undertakings concerned - and, if need be, the Court of First Instance - be in a position to check that the method employed and the steps followed by the Commission are free of error and compatible with the provisions and principles applicable in regard to fines, and in particular with the principle of non-discrimination.

However, such figures, provided in the course of proceedings by the Commission at the request of the Court of First Instance, do not constitute an additional a posteriori statement of reasons for a decision imposing fines, but rather the translation into figures of the criteria set out in that decision where these are themselves capable of being quantified.

17 Recidivism, as understood in a number of national legal systems, implies that a person has committed fresh infringements after having been penalised for similar infringements.

The fact that the undertaking concerned has already been penalised - by means of an earlier decision - for similar infringements cannot be taken into account as an aggravating circumstance, justifying an increase in the fine, in so far as it relates to infringements committed before that decision was adopted.

18 In determining the amount of the fines to impose on steel undertakings for infringement of the competition rules, the Commission is in principle entitled to take account of the undertakings' financial difficulties while maintaining fines at a level which appears appropriate. However, recognition of an obligation requiring the Commission to take account of an undertaking's loss-making financial situation would be tantamount to conferring an unjustified competitive advantage on the undertakings least well adapted to the conditions of the market.

19 In so far as it is unnecessary, in order to find that there has been an infringement of Article 65(1) of the ECSC Treaty, to establish that the conduct in question actually had an anti-competitive effect, the effect which an agreement or concerted practice may have had on normal competition is not a conclusive criterion in assessing the proper amount of the fine. Factors relating to the intentional aspect, and thus to the object of a course of conduct, may be more significant than those relating to its effects, particularly where they relate to infringements which are intrinsically serious, such as price-fixing and market-sharing.

However, the assessment of the effects of an infringement may be relevant, in regard to fines, where the Commission bases its decision expressly on an effect and is unable to prove it or to provide good reasons why it should be taken into account.

In cases where the Commission has encouraged the undertakings to exchange their views on the economic situation of the market and future tendencies, particularly in regard to prices, the effects of the infringements cannot be determined simply by comparing the situation resulting from the anti-competitive agreements with that which would have existed had there been no contact whatever between the undertakings; rather, the situation resulting from the anti-competitive agreements should be compared with that which had been envisaged and accepted by the Commission.

20 The fact that the Commission has penalised certain types of infringement in the past by imposing fines at a particular level cannot prevent it from raising that level within the limits indicated in Article 65(5) of the ECSC Treaty if that is necessary to ensure the effectiveness of Community competition policy.

21 By its nature, the fixing of a fine by the Court of First Instance, in the exercise of its unlimited jurisdiction, is not an arithmetically precise operation. Moreover, the Court is not bound by the Commission's calculations, but must carry out its own assessment, taking all the circumstances of the case into account.

22 Under Article 39 of the ECSC Treaty, actions brought before the Court of First Instance do not have suspensory effect. It follows that the Commission cannot be required to treat in the same way an undertaking which, whether or not it has brought an action, pays the fine on its normal due date - where appropriate by making use of the arrangements to pay by instalments at the preferential interest rate which, as here, may have been offered to it by the Commission - and an undertaking which wishes to postpone that payment until a definitive judgment has been delivered. Exceptional circumstances apart, application of default interest at the normal rate must be regarded as justified in this latter case.

Parties

In Case T-141/94,

Thyssen Stahl AG, a company incorporated under German law, established in Duisburg (Germany), represented, during the written procedure, by Jochim Sedemund and Frank Montag, and, during the oral procedure, by Frank Montag and Barbara Balke, Rechtsanwälte, Cologne, with an address for service in Luxembourg at the Chambers of Aloyse May, 32 Grand-Rue,

applicant,

v

Commission of the European Communities, represented initially by Julian Currall and Norbert Lorenz, of its Legal Service, and Géraud Sajust de Bergues, a national civil servant on secondment to the Commission, and subsequently by Jean-Louis Dewost, Director-General of its Legal Service, Julian Currall and Guy Charrier, a national civil servant on secondment to the Commission, acting as Agents, assisted by Hans-Joachim Freund, Rechtsanwalt, Frankfurt am Main, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, also of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION, principally, for the annulment of Commission Decision 94/215/ECSC of 16 February 1994 relating to a proceeding pursuant to Article 65 of the ECSC Treaty concerning agreements and concerted practices engaged in by European producers of beams (OJ 1994 L 116, p. 1),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

(Second Chamber, Extended Composition),

composed of: C.W. Bellamy, acting as President, A. Potocki and J. Pirrung, Judges,

Registrar: J. Palacio González, Administrator,

having regard to the written procedure and further to the hearing on 23, 24, 25, 26 and 27 March 1998,

gives the following

Judgment

Grounds

The facts giving rise to the action

A - Preliminary observations

1 The present action seeks the annulment of Commission Decision 94/215/ECSC of 16 February 1994 relating to a proceeding pursuant to Article 65 of the ECSC Treaty concerning agreements and concerted practices engaged in by European producers of beams (OJ 1994 L 116, p. 1, hereinafter `the Decision'), by which the Commission found that seventeen European steel undertakings and one of their trade associations had participated in a series of agreements, decisions and concerted practices designed to fix prices, share markets and exchange confidential information on the market for beams in the Community, in breach of Article 65(1) of the ECSC Treaty, and imposed fines on fourteen undertakings operating within that sector for infringements committed between 1 July 1988 and 31 December 1990.

2 The applicant is the largest steel-producing subsidiary of the Thyssen Group. In 1989/1990 it had a turnover of DM 8.241 billion. Its sales of beams within the Community in 1990 amounted to DM 187.5 million (ECU 91 million).

3 Ten other parties to which the Decision was addressed have also brought actions before the Court. They are: NMH Stahlwerke GmbH (`NMH'), in Case T-134/94; Eurofer ASBL (`Eurofer'), in Case T-136/94; ARBED SA (`ARBED'), in Case T-137/94; Cockerill-Sambre SA (`Cockerill-Sambre'), in Case T-138/94; Unimétal - Société française des aciers longs SA (`Unimétal'), in Case T-145/94; Krupp Hoesch Stahl AG (`Krupp Hoesch'), in Case T-147/94; Preussag Stahl AG (`Preussag'), in Case T-148/94; British Steel plc (`British Steel'), in Case T-151/94; Siderúrgica Aristrain Madrid SL (`Aristrain'), in Case T-156/94; and Empresa Nacional Siderúrgica SA (`Ensidesa'), in Case T-157/94.

4 Since the eleven cases were joined for the purposes of measures of inquiry and the oral procedure by order of the Court of 10 December 1997, reference will be made in the present judgment to certain documents produced in the parallel cases. Likewise, since the applicants in these cases raised a number of arguments in joint submissions at the hearing, reference will be made to `the applicants'.

B - Relations between the steel industry and the Commission from 1970 to 1990

The crisis in the 1970s and the creation of Eurofer

5 From 1974 onwards, a fall in demand, giving rise to problems of excess supply and capacity and low prices, severely affected the European steel industry.

6 On 1 January 1977, the Commission adopted, on the basis of Article 46 of the ECSC Treaty, the `Simonet Plan', under which each undertaking was to give unilateral voluntary commitments to adjust its deliveries to the levels proposed in the forward programmes published each quarter, pursuant to point 2 of the third paragraph of Article 46 of the ECSC Treaty. This system failed to stabilise the market and was replaced in 1978 by the `Davignon Plan', which supplemented, in particular, the unilateral voluntary commitments with guide and minimum prices (the `Eurofer I' agreement).

7 The unilateral voluntary commitments which the undertakings gave to the Commission were discussed beforehand by them within the Eurofer trade association, which was established in 1977 with the encouragement of the Commission. In reality, the Commission relied very extensively on Eurofer to manage the crisis in the steel industry, to the extent that a letter of 13 July 1978 from Mr Davignon, a Member of the Commission, to the chairman of Eurofer refers to `joint management of the anti-crisis [measures] for which the Commission and the producers have opted' (application in Case T-151/94, appendix 3, document 2).

The quota system established from 1980 to 1988

8 In view of the continued deterioration of the situation on the steel market, the Commission adopted Decision No 2794/80/ECSC of 31 October 1980 establishing a system of steel production quotas for undertakings in the iron and steel industry (OJ 1980 L 291, p. 1). In that decision, the Commission declared that there was a manifest crisis within the meaning of Article 58 of the ECSC Treaty and imposed mandatory production quotas for most steel products, including beams.

9 That crisis regime may be described in the following terms. The Commission fixed a quarterly objective for Community production for different product categories and allocated to each undertaking a production quota and a quota for deliveries within the Community (`I' quotas). It was further agreed that each undertaking would be allocated a delivery quota for each of the national markets (`i' quotas). Eurofer was given the task of dividing up the `I' quota of each undertaking into `i' quotas within the framework of the Eurofer II to Eurofer V agreements. Where necessary, the Commission was to intervene in the event of disputes between undertakings (see the arbitration of 2 June 1982 by Mr Davignon in regard to the `i' quotas of Italsider, appendix 3, document 11, to the application in Case T-151/94).

10 By a letter of 17 January 1983 (application in Case T-151/94, appendix 3, document 6), Messrs Davignon and Andriessen, Members of the Commission, issued a formal notice to Eurofer, the terms of which provide as follows:

`The Commission appreciates the cooperation which undertakings and their associations have brought to the success of the anti-crisis measures, including cooperation on pricing policy. It considers that this activity is an essential element in its policy for steel and would like to see it continue.

However, it wishes to draw the attention of the associations, and in particular Eurofer, to the fact that they must carry out their activities in strict compliance with the framework and limits specified by Article 48 of the ECSC Treaty.

The Commission stresses that it cannot accept that steel undertakings or their associations should anticipate or circumvent the decisions which the Commission takes in drawing up pricing policy, or that the measures which it takes and the recommendations which it drafts as part of its anti-crisis policy should be used as a pretext for concluding agreements or adopting decisions contrary to the Treaty. Such agreements or decisions fall under Article 65, are entirely without legal effect, and would have to be prosecuted by the Commission.

...'.

11 By letter of 8 February 1983, the chairman of Eurofer replied as follows to Messrs Davignon and Andriessen (application in Case T-151/94, appendix 3, document 7):

`... we would like to remind you that, in the field of quantities, the agreements on restriction of production and deliveries have been reached at the urgent request of the European Commission and of the Council. The Commission has been kept informed of how they operate in full detail and we have made up our minds to carry on acting in that way.

In the field of prices, the Commission and the Council have constantly insisted on the necessity of an increase designed to allow steel undertakings sufficient income ...

The Commission has been kept meticulously informed of all the efforts made with a view to reaching the goal which it has set for itself, and we are resolved to continue down this road in the future.

In these circumstances, if our activities should at any stage risk going beyond the Commission's interpretation of the provisions of the Treaty of Paris, we rely on you to inform us of that fact immediately.'

12 In view of the fact that the state of manifest crisis had established itself on a long-term basis, the quota measures adopted by the Commission were extended and supplemented on numerous occasions, in particular by the adoption, between 1984 and 1986, of a system of minimum prices for beams and other products (Commission Decision No 3715/83/ECSC of 23 December 1983 fixing minimum prices for certain steel products (OJ 1983 L 373, p. 1)). The Commission also adopted Decision No 3483/82/ECSC of 17 December 1982 concerning the requirement for Community undertakings to declare the quantities of certain steel products delivered (OJ 1982 L 370, p. 1, hereinafter `Decision No 3483/82'), establishing a `monitoring system' under which each undertaking was required to inform the Commission of its deliveries for each country.

13 At the beginning of 1984, the Commission reinforced the quota system by adopting Decision No 234/84/ECSC of 31 January 1984 on the extension of the system of monitoring and production quotas for certain products of undertakings in the steel industry (OJ 1984 L 29, p. 1). The ninth recital in the preamble to that decision refers to a declaration of the Council of 22 December 1983 stating that `the stability of traditional patterns of deliveries of steel products within the community is an essential factor which must be preserved if the restructuring of the steel industry is to be carried out within a competitive context compatible with the solidarity imposed by the production quota system'. Consequently, Article 15B of that decision provides that, where a Member State submits a complaint in this connection, the Commission shall, if it finds that such complaint is justified, request the undertakings which are alleged to have caused the confirmed disruptions to give a commitment in writing that, during the following quarter, they will correct the imbalance in their traditional deliveries. If an undertaking refuses to accede to this principle of solidarity, the Commission may reduce that part of its quota which may be delivered in the common market.

14 The policy of stabilising traditional flows and the efforts to maintain prices at an acceptable level were the subject of extensive contact between the Commission and Eurofer, as evidenced in particular by:

- a Eurofer note of 2 July 1984 setting out the explanations provided at a meeting between representatives of the Commission and of the industry held in Brussels on 27 June 1984 (application in Case T-151/94, appendix 3, document 8), which states as follows in regard to the implementation of Article 15B of Decision No 234/84:

`The Commission established the Art. 15B system in answer to the concern of the national Governments. It cannot, by any means, replace the small "i" system of a Eurofer IV Agreement. On the contrary, the Commission needs Eurofer for market evaluations and for the settlement of all the details. Without Eurofer, the Commission would be in extreme difficulty. ... Generally speaking, the Commission is interested only in a broad analysis of the situation, without going into minor details. ... For the future, the Commission is prepared to consider a system based on quotas, but would then need full support from Eurofer';

- the minutes of a meeting between the Commission and Eurofer held on 16 December 1985 in the presence of Commission Member Narjes (application in Case T-151/94, appendix 3, document 10), which state as follows with regard to traditional flows:

`The Commission expressed its deep concern about recent market developments. It regretted that Eurofer V had not yet been concluded and underlined the responsibility of the producers as regards prices. ... The Commission urged the participants to re-examine ways of cooperation between them, because it considered that Eurofer played an essential role in the implementation of Article 58. It intended to define the criteria for the application of Article 15b as soon as possible, in order to cope with the situation should Eurofer fail, or to facilitate a private arrangement';

- the minutes of a meeting of 10 March 1986 between Mr Narjes and Eurofer (application in Case T-151/94, appendix 3, document 13), which state as follows with regard to the Spanish market:

`Narjes recalled the Commission decision concerning the limitation of deliveries to Spain. ... As far as the burden sharing was concerned, he was in favour of an internal agreement between Eurofer producers';

- the minutes of a meeting held on 16 May 1986 between Mr Narjes and Eurofer delegates (application in Case T-151/94, appendix 3, document 14), which state as follows:

`The Commission stressed the need to rapidly harmonise the published prices in the Community to the same level and to avoid differences between published prices and market prices. The sector rebates should correspond to the reality. Confirmation was given of the readiness of the French steel industry to raise the price but also of the necessity to be supported by the penetrants in this respect. Eurofer expressed the hope that the Eurofer V Agreement would bring the appropriate basis for a general price recovery'.

15 At the same period, the Commission concluded a series of international agreements with the Kingdom of Sweden, the Kingdom of Norway and the Republic of Finland designed to ensure stability of traditional flows between those countries and the Community (known as the `arrangements' system): see the Commission's letters, lodged by the parties at the hearing, of 4 March 1986, 13 February 1987 and 21 January 1988 to the Swedish authorities, of 4 March 1986, 11 March 1987 and 10 February 1988 to the Norwegian authorities, and of 4 March 1986, 10 April 1987 and 12 February 1988 to the Finnish authorities, exchanged respectively within the framework of the Agreement of 22 July 1972 between the Member States of the European Coal and Steel Community and the European Coal and Steel Community, of the one part, and the Kingdom of Sweden, of the other part (OJ 1973 L 350, p. 76), the Agreement of 14 May 1973 between the Member States of the European Coal and Steel Community and the European Coal and Steel Community, of the one part, and the Kingdom of Norway, of the other part (OJ 1974 L 348, p. 17), and the Agreement of 5 October 1973 between the Member States of the European Coal and Steel Community and the European Coal and Steel Community, of the one part, and the Republic of Finland, of the other part (OJ 1974 L 348, p. 1).

16 A similar arrangement was applied to the Kingdom of Spain, for a three-year transitional period, by Protocol No 10 to the Act of Accession. The Commission thus fixed, for each of the years 1986, 1987 and 1988, the level of deliveries to the Community markets, apart from Portugal, of steel products originating in Spain. The application of those specific transitional measures came to an end on 31 December 1988.

Events preceding the end of the manifest crisis regime on 30 June 1988

17 From 1985 onwards, the Commission began to prepare for the end of the crisis regime and a return to normal market conditions. A document drawn up by the Commission's Directorate-General for the Internal Market and Industrial Affairs (`DG III') during 1985 (Document III/534/85/FR) (application in Case T-151/94, appendix 3, document 5) states that `the quota system was based largely on the voluntary system which had been operated by Eurofer' and stresses how important it was that `some agreement on the future should be reached [before] the mid-point of the coming year because, if this is not done, there will be a battle for market position in the second half of the year which could well have disastrous effects on prices and on company revenue.' In conclusion, that document states that `Eurofer must therefore be encouraged to accept its responsibilities and formulate its propositions on how the steel industry should emerge from a period of protection to the circumstances of a free market'.

18 In its communication to the Council on the introduction of a system of production quotas under Article 58 of the ECSC Treaty after 31 December 1985 (COM(85) 509, Annex 14 to the application in Case T-145/94), the Commission describes in detail a transitional period prior to the resumption of normal competition. Taking the view that the worst of the crisis was practically over, it concluded that:

`... restructuring in the Community steel industry is not complete. ... A period of transition is thus necessary. Limited to a maximum of three years, it will allow the industry to move progressively from the extremely rigid controls currently applied to a fully competitive market in compliance with the objectives of the ECSC Treaty. ... the quota system proposed from 1 January 1986 will ... be the last before a return to a competitive market. ... the Commission does not intend to include in the next Decision the provisions of Article 15B of Decision 234/84/ECSC in their present form. ... On the other hand, it does intend to continue, during the first phase of the transition period, with the statistical monitoring of flows of steel products between Member States on the basis of the production certificates and accompanying documents. These documents will make it possible to check whether the traditional flows between the Member States are subject to serious disturbances. If the statistical monitoring shows that the flows are disturbed, the Commission would immediately examine whether the firms concerned have launched a drive to recruit new customers, contrary to the rules of the Treaty, in particular the rules on prices.'

19 In its Decision No 3485/85/ECSC of 27 November 1985 on the extension of the system of monitoring and production quotas for certain products of undertakings in the steel industry (OJ 1985 L 340, p. 5), the Commission indicated that, owing to an improvement in market conditions:

`... the quota system can be dismantled completely over a two-year, or at most three-year, transition period. At its meeting on 25 July 1985 the Council said that an orderly return to a market allowing free competition between Community steelmakers was needed as soon as possible.'

20 The minutes of the meeting of 16 May 1986 between the Commission and Eurofer (application in Case T-151/94, appendix 3, document 14), drafted by Eurofer, state, under the heading `Implementation of Article 58 in 1987': `As regards the future after 1987, the Commission representatives stated that they for their part did not yet have an opinion on the matter'. Those minutes also reveal that, in a meeting after the Commission representatives had left, the Eurofer delegates reviewed various possibilities from their perspective:

`An initial discussion showed that a choice was to be made between three possibilities:

- full liberty and, in such a case, how to cooperate in the best way;

- continuation of Article 58 and, in such a case, how to proceed with the Commission;

- no Article 58, but a private arrangement.

In such a case, what kind of arrangement (production, deliveries) and what coverage (crude steel, some products, etc.).

Each member agreed that anyhow the objective was to set up a price level which corresponded to profitability for a large number of companies.

Different kinds of opinions were expressed, one, based on the existence of over-capacities for some years to come, considered that quantity arrangements were unavoidable, another based on the experience of the past, doubted the ability of all companies to accept adaptations necessary for the conclusion of a private arrangement after a long period of artificial measures'.

21 In its Decision No 3746/86/ECSC of 5 December 1986 amending Decision No 3485/85 (OJ 1986 L 348, p. 1), the Commission explained: `The inclusion of Article 15B became necessary at the height of the crisis in the steel industry. At the present time there is no justification for maintaining this provision. It should therefore be deleted'.

22 In its communication to the Council on steel policy, submitted on 18 September 1987 (COM(87) 388 final/2) (OJ 1987 C 272, p. 3), the Commission stated inter alia as follows:

`... the Commission is not prepared to prolong the quota system - which everyone recognises must be updated - unless it is accompanied by closure incentives and firm commitments from the firms and governments concerned.

...

Although crisis conditions persist for flat products and heavy sections, the Commission, aware that the quota system itself can be an impediment to the restructuring of the industry, will implement such a system only if it receives firm commitments from companies for a satisfactory level of closures carried out over a period not to exceed three years.

...

In particular:

...

- it will terminate the system in the course of 1988 if by 1 August 1988 the firms have not made an additional effort. ...'

23 On 8 October 1987 the Commission commissioned a group of three `Wise Men' (Messrs Colombo, Friderichs and Mayoux) to ascertain whether, in three categories of products (including beams), undertakings were prepared to enter into commitments for a sufficient and rapid reduction of the production capacity judged to be excessive.

24 The report of the `Three Wise Men' (OJ C 9 of 14 January 1988, p. 6) stated that:

`It is obvious that, having been protected by a quota system for seven years, and having become accustomed to the system being extended, the companies are not prepared to give adequate undertakings regarding closures in order to justify extending the system. ...

However, in view of the international economic situation, it may be foreseen that the current situation of comparatively high prices will not last long, and it is certain that over-capacity will again weigh heavily on the market, forcing the steelmakers to restructure and close plants down.

The Commission must therefore act firmly, but with a sense of its responsibilities.

The current quota system cannot be maintained unless firm undertakings are given by the companies on capacity reductions. On the other hand, if market forces are suddenly allowed to operate freely, the fall in prices which would undoubtedly follow could affect all companies, and hence make the proposed restructuring more difficult.'

25 The Report concludes:

`As a final point, we must again emphasise the extreme gravity of the steel crisis, which is much worse than most in the industry admit.

This crisis demands a resolute and unequivocal stance from the Community authorities to make the industry face up to its responsibilities.

It is a matter of urgency that steel companies should be restructured to meet world competition and become fully competitive in a market which will be increasingly open.'

26 It was also during 1987 that the Commission abandoned its views regarding the maintenance of `traditional flows'. In Annex I to its abovementioned communication to the Council of 18 September 1987, it thus expressed its view that `the preservation of the traditional flows of trade in steel products between Member States is inconsistent with the Community objective of achieving an open internal market by 1992'.

27 The Community's new steel policy was set out in the Commission's communication on steel policy, submitted to the Council on 16 June 1988 (COM(88) 343 final) (OJ 1988 C 194, p. 23). Outlining the measures to be adopted, the Commission stated:

`The Treaty of Paris is based on the principle of free market competition as the normal situation, and Article 5 empowers the Commission to exert direct influence upon production only when circumstances so require. ... The Treaty stipulates that competition is to take place under normal conditions.

Furthermore, it must be borne in mind that completion of the internal market in 1992 is also a crucial objective for the steel market. Preparing for the 1992 deadline requires a radical change of strategy on the part of entrepreneurs, whose thinking is still all too often dominated by national market considerations'.

28 The Commission concluded:

`The steel market has improved to such an extent that the quota system is no longer justified. Furthermore, the system has proved inadequate for inciting firms to complete the restructuring process ... the Commission believes that structural adjustment must continue under the influence of normal market forces'.

29 During its 1255th meeting on 24 June 1988, the Council noted that the Commission intended to bring the quota system to an end, in respect of all steel products, on 30 June 1988. Referring to the accompanying measures and market-monitoring measures envisaged by the Commission (monthly production and delivery statistics, forward programmes, consultation of interested parties), the Council stressed that `no-one must use the monitoring system in order to circumvent Article 65 of the ECSC Treaty' (see the extract from the draft minutes of the 1255th meeting of the Council, Annex 3 to the statement of defence in Case T-151/94).

30 On 4 May 1988, the Commission also published a press release (IP/88/261) (see appendix 5, document 4, to the application in Case T-151/94) concerning the inspection which it had just completed as part of the Stainless Steel case (see paragraph 36 below). That press release states in particular that:

`This is the first cartel inspection in the steel sector which the Commission has conducted in thirteen years. At a time when the Commission's official quota system has already been terminated for some steel products and when proposals have been made to end the quota system by 30 June 1988, it is clear that the Commission cannot tolerate any substitution of the Community system by unofficial and illegal arrangements by the industry itself'.

31 The crisis regime officially came to an end, so far as beams were concerned, on 30 June 1988. The Eurofer V Agreement also came to an end on that date. However, the monitoring system for deliveries between Member States introduced by Decision No 3483/82 was retained until November 1988.

The monitoring system implemented with effect from 1 July 1988

32 Although the manifest crisis regime came to an end on 30 June 1988, it is apparent from an internal memorandum of DG III dated 24 October 1988, produced by the defendant in compliance with the order of the Court of 10 December 1997, that the Council and Commission had agreed on the need to facilitate undertakings in adapting to changes in demand. To that end, it had been agreed that the Commission would continue to monitor the market by means of three measures:

- the collection of monthly statistics on production and deliveries of certain products;

- monitoring of developments on the market for those products within the framework of quarterly forward programmes;

- regular consultation with undertakings on the situation and trends in the market.

33 The Commission implemented that policy in particular by its Decision No 2448/88/ECSC of 19 July 1988 introducing a surveillance system for certain products of undertakings in the steel industry (OJ 1988 L 212, p. 1), under which each undertaking was required to inform the Commission of its deliveries. That system expired on 30 June 1990 and was replaced by an individual and voluntary information scheme.

34 Undertakings thus continued to maintain regular and close contacts with DG III, in the course of which market parameters (such as production, deliveries, stocks, prices, imports and exports) were discussed. Those contacts took place in the following contexts:

(a) official quarterly meetings between representatives of producers, customers and traders, and those of the Commission, at which, in accordance with Article 46 of the ECSC Treaty, the forward programmes were discussed. Those meetings took place, in particular, on 4 May 1988, 1 September 1988, 3 November 1988, 1 February 1989, 28 April 1989, 1 September 1989, 7 November 1989, 7 February 1990, 3 May 1990, 4 September 1990 and 5 November 1990;

(b) consultation meetings, limited to a small number of representatives of the industry, whether or not belonging to Eurofer, and of the Commission, which took place, in particular, on 27 October 1988, 26 January 1989, 28 April 1989, 27 July 1989, 26 October 1989, 25 January 1990 and 27 July 1990;

(c) restricted meetings, limited to a very small number of representatives of the industry, whether or not belonging to Eurofer, and of the Commission, held on 8 December 1988, 21 March 1989, 15 June 1989 and 13 December 1989;

(d) `steel lunches', which brought together representatives of Eurofer and of the Commission in an informal setting during consultation meetings and restricted meetings.

35 The main purpose served by these meetings was to provide the Commission with information from the industry which was necessary for the application of Article 46 of the Treaty and the surveillance system established by Decision No 2448/88. They brought together officials from DG III (in particular, Messrs Ortún, Kutscher, Evans, Drees, Aarts and Vanderseypen), the chairman of the CDE, the chairmen of Eurofer's products committees, a number of representatives of other steel associations and members of Eurofer's staff. The industry representatives provided the Commission with general information concerning the economic situation of each product. The general and product-specific information exchanged on those occasions related to actual consumption, apparent consumption, prices, orders, deliveries, imports, exports and the state of stocks. A summary of the consultation meetings, better known as `speaking notes', was, as a rule, submitted by Eurofer to DG III a few days after the meeting in question.

The `Stainless Steel' decision of 18 July 1990

36 On 18 July 1990 the Commission adopted Decision 90/417/ECSC relating to a proceeding under Article 65 of the ECSC Treaty concerning an agreement and concerted practices engaged in by European producers of cold-rolled stainless steel flat products (OJ 1990 L 220, p. 28) (`the Stainless Steel decision'), by which it imposed fines ranging from ECU 25 000 to ECU 100 000 on a number of steel undertakings, including British Steel, Thyssen Edelstahlwerke AG (the applicant's sister company) and Ugine Aciers de Châtillon et Gueugnon, a subsidiary of Unimétal, for having infringed Article 65(1) of the Treaty by concluding a quota and price agreement on 15 April 1986.

The Commission's reflections on the future of the ECSC Treaty after 1990

37 The Commission began a process of reflection on the future of the ECSC Treaty during 1990, as is shown by a draft note of 23 October 1990 from Mr Bangemann, the Commission Member responsible for industrial policy, to the Members of the Commission on this matter (Annex 10 to the application in Case T-156/94). In that document, the Commission favoured the option that the ECSC Treaty should expire as scheduled in 2002, `while making use of all the flexibility which it offers in order to adapt, so far as possible, its application to the position of the two sectors and progressively organising their phasing-in by the EEC Treaty in 2002' (see also the communication from the Commission to the Council and the European Parliament of 15 March 1991 on the future of the ECSC Treaty (SEC(91) 407 final) (appendix 3, document 1, to the application in Case T-151/94)).

38 In its notice of September 1991 on ECSC competition policy (IV/832/91) (Annex 5 to the reply in Case T-151/94), the Commission proposed to `ensure that ECSC and EEC competition practices are brought into line as far as possible in the future.' Likewise, in its Twentieth Report on Competition Policy, published in 1991, the Commission (in point 122) stated inter alia that `the time has come to bring the ECSC competition rules as far into alignment as possible with those of the Rome Treaty'.

C - The administrative procedure before the Commission

39 On 16, 17 and 18 January 1991 the Commission, acting on the basis of individual decisions adopted pursuant to Article 47 of the Treaty, carried out inspections in the offices of seven undertakings and two associations of undertakings. Further inspections were carried out on 5 March, 7 March and 25 March 1991. Additional information was provided by some of the undertakings and associations concerned on the basis of requests made by the Commission pursuant to Article 47 of the ECSC Treaty.

40 On 6 May 1992 the Commission sent a written statement of objections to the undertakings and associations concerned, including the applicant. The applicant replied to that statement by letters of 18 August and 20 December 1992.

41 The parties were also given the opportunity to present their cases at a hearing held in Brussels between 11 and 14 January 1993, the minutes of which were circulated to them on 8 July and 8 September 1993. On that occasion, having regard to the numerous references made by the parties present to certain contacts allegedly maintained by DG III with the beams producers during the period covered by the statement of objections, the Hearing Officer requested them to produce to him all the evidence which they held in that connection. The applicant replied to that request by letter of 16 February 1993.

42 By letter of 22 April 1993 the Hearing Officer informed the parties concerned that he did not intend to hold a second hearing.

43 On 15 February 1994, that is to say, the day before the Decision was adopted, the negotiations then under way between the Commission and the representatives of the steel industry designed to restructure that industry through voluntary reductions in production capacity were broken off through lack of success.

44 According to the minutes of the 1189th meeting of the Commission (morning and afternoon) produced by the defendant at the Court's request, the Decision was definitively adopted during the afternoon session on 16 February 1994.

45 At midday on 16 February 1994, Mr Van Miert, the Commission Member responsible for competition matters, gave a press briefing at which he announced that the Commission had just adopted the Decision and indicated the level of the fines imposed on the applicants British Steel, Preussag and ARBED. Those amounts did not correspond to the amounts indicated in the Decision. He also set out in detail a number of criteria applied in determining the fines and replied to journalists' questions. In particular, he denied that there was any connection whatever between the adoption of the Decision and the failure, on the previous day, of the negotiations to secure voluntary reductions in production capacities.

46 During a debate in the European Parliament on 24 February 1994, a number of members questioned the reasons which had led the Commission to adopt the Decision on the day after the negotiations on restructuring the industry had collapsed. Mr Van Miert defended the Commission's position and stressed that the two matters were quite separate.

D - The Decision

47 The Decision, which the applicant received on 3 March 1994 under cover of a letter of 28 February 1994 from Mr Van Miert (`the Letter'), contains the following operative part:

`Article 1

The following undertakings have participated, to the extent described in this Decision, in the anti-competitive practices listed under their names which prevented, restricted and distorted normal competition in the common market. Where fines are imposed, the duration of the infringement is given in months except in the case of the harmonisation of extras where participation in the infringement is indicated by "x".

...

Thyssen

(a) Exchange of confidential information through the Poutrelles Committee and the Walzstahl-Vereinigung (30)

(b) Price fixing in the Poutrelles Committee (30)

(c) Price fixing in the German market (3)

(d) Price fixing in the Italian market (3)

(e) Price fixing in the Danish market (30)

(f) Market sharing, "Traverso system" (3 + 3)

(g) Market sharing, France (3)

(h) Market sharing, Italy (3)

(i) Harmonisation of extras (x)

...

Article 2

Eurofer has infringed Article 65 of the ECSC Treaty by organising an exchange of confidential information in connection with the infringements committed by its members and listed in Article 1.

Article 3

The undertakings and associations of undertakings mentioned in Articles 1 and 2 shall henceforth bring to an end the infringements referred to in Articles 1 and 2 to the extent that they have not already done so. To this end, the undertakings and associations of undertakings shall refrain from repeating or continuing any of the acts or behaviour specified in Article 1 or as the case may be Article 2 and shall refrain from adopting any measures having equivalent effect.

Article 4

For the infringements described in Article 1 which took place after 30 June 1988 (31 December 1989 (1) in the case of Aristrain and Ensidesa) the following fines are imposed:

...

Thyssen Stahl AGECU 6 500 000

...

Article 5

The fines imposed pursuant to Article 4 shall be paid within three months of the date of notification of this Decision ...

On the expiry of that period interest shall automatically be payable at the rate charged by the European Monetary Cooperation Fund on its ecu operations on the first working day of the month in which this Decision was adopted, plus 3.5 percentage points, i.e. 9.75 %.

Fines in excess of ECU 20 000 may, however, be paid in five equal annual instalments:

- the first to be paid within three months of the date of notification of this Decision;

- the second, third, fourth and fifth instalments to be paid respectively one, two, three and four years after the date of notification of this Decision. Each instalment shall be increased by the interest, calculated on the total amount remaining to be paid by applying the interest rate used by the European Monetary Cooperation Fund in its operations in ecu in the month preceding the due date of each annual payment. This facility is granted on condition that by the date provided for in the first indent, a bank guarantee acceptable to the Commission, covering the remaining principal and interest has been presented.

In the case of late payment this interest rate shall be increased by 3.5 percentage points.

...

Article 6

This Decision is addressed to:

...

- Thyssen Stahl AG

...'.

48 After reciting the provisions of Article 5 of the Decision, the Letter provides as follows:

`If you appeal to the courts of the European Communities, the Commission will not recover the debt as long as the case is before these courts, on condition that:

- you accept that your debt, between the moment of its exigibility and the moment of payment which should take place in the month following the delivery of the final verdict, will bear interest at the following rates:

- in case you have chosen to pay in one time, at the rate of 7.75 %,

- in case you have chosen to pay in annual instalments, the rate for the first instalment shall be 7.75 % and for the successive instalments, the rate mentioned in Article 5 for each instalment, increased by one and a half points;

- and you provide the Commission not later than the date of expiry mentioned in Article 5, first indent, of the Decision with a guarantee acceptable by the Commission covering the debt both as regards the principal and as regards the interest. ...'

Procedure before the Court of First Instance, developments following the bringing of the action, and forms of order sought by the parties

49 The present action was brought by application lodged at the Court Registry on 8 April 1994.

50 By letter of 7 September 1994 addressed to the Registry, Aristrain, the applicant in Case T-156/94, asked whether the Commission had, in the case in point, complied with its obligations under Article 23 of the ECSC Statute of the Court of Justice (`Article 23') concerning the transmission of documents. Upon being requested to submit its observations on that request, the Commission replied in essence, by letter of 12 October 1994, that in its view it had complied with the requirements of Article 23.

51 By letter of 25 October 1994, the Court Registry requested the Commission to fulfil its obligations under Article 23. The Commission lodged with the Registry a total of approximately 11 000 documents relating to the Decision under cover of a letter dated 24 November 1994, in which it stated in particular that the undertakings in question should not be given access to the documents containing business secrets or to the Commission's own internal documents.

52 Following an informal meeting with the parties on 14 March 1995, the Court of First Instance (Third Chamber, Extended Composition) requested those parties, by a letter from the Registry of 30 March 1995, to define in writing their position regarding the issues of confidentiality thus raised, and also regarding possible joinder of the cases. In view of the incomplete replies given by the parties, the Court addressed a second series of questions to them, by letter from the Registry of 21 July 1995 (25 July 1995 in the case of British Steel). In addition, the Court requested the defendant to define its position regarding a fresh application by British Steel, dated 14 July 1995.

53 In their replies to the questions put by the Court, received between 6 and 15 September 1995, the applicants stated in particular that they wished to be given access to the Commission's internal documents, in the light of a list of those documents annexed to a letter which the defendant had produced before the Court on 25 June 1995.

54 By order of 19 June 1996 in Cases T-134/94, T-136/94, T-137/94, T-138/94, T-141/94, T-145/94, T-147/94, T-148/94, T-151/94, T-156/94 and T-157/94 NMH Stahlwerke and Others v Commission [1996] ECR II-537 (`the order of 19 June 1996'), the Court of First Instance (Second Chamber, Extended Composition, to which the Judge-Rapporteur had in the interim been assigned) ruled on the applicants' right of access to the documents in the file sent by the defendant emanating, first, from the applicants themselves and, second, from third parties not involved in the present proceedings which the Commission had, in the interests of those parties, classified as confidential. However, the Court reserved its decision on the applicants' requests for access to the documents in that file which the defendant had classified as internal documents, and on their applications for the production of documents not appearing in that file; it ordered the defendant to explain in detail and specifically the reasons why it considered that certain documents classified by it as `internal' among the documents contained in that file could not, in its view, be communicated to the applicants.

55 The defendant acceded to that request by the Court by letters dated 11, 12 and 13 September 1996. In those letters, the defendant proposed that the cases in point be referred to the Court sitting in plenary session pursuant to Article 14 of its Rules of Procedure. Upon being requested to submit their observations on that proposal, the applicants replied by letters addressed to the Court and dated 4 to 18 October 1996. The applicants in Cases T-134/94, T-137/94, T-138/94, T-148/94, T-151/94 and T-157/94 opposed such a reference.

56 By order of 10 December 1997 in Cases T-134/94, T-136/94, T-137/94, T-138/94, T-141/94, T-145/94, T-147/94, T-148/94, T-151/94, T-156/94 and T-157/94 NMH Stahlwerke and Others v Commission [1997] ECR II-2293 (`the order of 10 December 1997'), the Court of First Instance (Second Chamber, Extended Composition) ruled on the applicants' applications for access to the documents classified by the Commission as `internal', ordering that certain documents submitted to the Court under Article 23 concerning the contacts between DG III and the steel industry during the infringement period taken into account in the Decision for the purpose of fixing the amount of the fines and certain documents from the Directorate-General for External Relations (DG I) relating to the contacts established between the Commission and a number of national Scandinavian authorities be put on the case-files. The Court also adopted certain measures of inquiry, ordering the Commission to produce its own minutes or notes relating to the meetings held between DG III and the representatives of the steel industry between July 1988 and November 1990. Finally, the Court ordered that the cases be joined for the purposes of the inquiry and the oral procedure, without referring them to the Court sitting in plenary session.

57 Upon hearing the report of the Judge-Rapporteur, the Court decided to open the oral procedure and to put various written questions to the parties on the basis of Article 64 of the Rules of Procedure. In particular, it requested the defendant, by letter sent by the Registry on 26 November 1997, to produce the text of the definitive minutes of the Commission's meeting of 16 February 1994 (morning and afternoon) in so far as they related to the adoption of the contested Decision. In that letter, the Court also called on the Commission to indicate, for each applicant and for the undertakings Norsk Jernverk and Inexa Profil AB:

- the turnover figure it had taken into account in imposing the fine on each undertaking;

- the different rates which it had applied to turnover in order to calculate the fine for each undertaking concerned;

- the arguments or considerations, set out in detail for each undertaking, which it had taken into account in regard to the different circumstances, aggravating or mitigating, for the purpose of obtaining a final figure for the fine.

58 The defendant replied to those letters of the Court by letter of 19 January 1998, which was lodged at the Court Registry on 22 January 1998. Under cover of that letter, it forwarded to the Court two documents entitled `Draft minutes of the 1189th meeting of the Commission held in Brussels (Breydel) on Wednesday 16 February 1994 (morning and afternoon)' and `Special draft minutes of the 1189th meeting of the Commission held in Brussels (Breydel) on Wednesday 16 February 1994 (morning and afternoon)', but argued that these two documents were confidential and should not be divulged to the applicants.

59 By letter sent by the Registry on 27 November 1997, the Court also called on the applicant to specify to what extent it was maintaining its allegation that it did not have access to certain incriminating documents during the administrative procedure. The applicant replied to that request by letter of 19 January 1998.

60 On 14 January 1998 the Court held an informal meeting with the parties with a view to planning the smooth conduct of the hearing. In particular, it pointed out to the parties that they were entitled to access to the case-file sent to the Court pursuant to Article 23 to the extent indicated in the orders of 19 June 1996 and 10 December 1997 and in accordance with the arrangements to be determined by the Registry. The Court also requested the parties to inform it, after having had access to the file, to which specific additional documents they intended to refer at the hearing.

61 The applicants ARBED, Aristrain, Cockerill-Sambre, British Steel, Ensidesa, Preussag and Unimétal inspected that Court file and obtained a copy of the documents which they considered necessary for their defence. By letter of 9 February 1998, Ensidesa submitted observations on a number of the documents in question.

62 By letters sent by the Registry on 30 January 1998, the Court put a number of additional questions to the Commission and Eurofer concerning the system of monthly exchange of information on orders and deliveries established by Eurofer and described in the Decision as `fast bookings'. Those parties replied by letters of 18 February and 23 February 1998 respectively.

63 By letter sent by the Registry on 6 February 1998, the Court also put a number of additional questions to the defendant concerning the method used in this case for calculating the fines. The Commission replied by letter of 20 February 1998, lodged at the Registry on 24 February 1998.

64 By order of 16 February 1998, the Court (Second Chamber, Extended Composition) ordered that only the document entitled `Draft minutes of the 1189th meeting of the Commission held in Brussels (Breydel) on Wednesday 16 February 1994 (morning and afternoon)', which had been lodged with the Registry on 22 January 1998, should be placed on the file and communicated to the applicants.

65 By letters of 13 February and 19 February 1998, the applicants jointly requested that measures of inquiry be adopted concerning, in particular, the calculation of the fines and the production of documents linked to the adoption of the Decision. The Commission replied to those requests by letter of 2 March 1998.

66 By letter sent by the Registry on 11 March 1998, the Court requested the defendant, in the first place, to amplify its replies of 19 January and 20 February 1998 to the questions put by the Court by specifying, for each applicant, the precise arithmetical calculations making it possible to understand exactly how the amounts of the fines had been determined, and, second, to produce the definitive minutes of the Commission meeting (morning and afternoon) at which the Decision was adopted, in addition to its annexes in so far as they related to the Decision. The defendant replied to that request by letter of 19 March 1998 and lodged with the Registry the definitive minutes of the Commission meeting of 16 February 1994 together with the annexes thereto.

67 By order of 23 March 1998 the Court ordered that Messrs Ortún and Vanderseypen, officials with DG III, as well as Mr Kutscher, a former official of DG III, should be heard as witnesses concerning the contacts established between DG III and the steel industry during the period of infringement taken into account for the purpose of determining the fines, that is to say, from 1 July 1988 to the end of 1990.

68 During the hearing held from 23 to 27 March 1998, the parties submitted oral argument and replied to the questions put by the Court (Second Chamber, Extended Composition), composed of Judges Kalogeropoulos, President, Briët, Bellamy, Potocki and Pirrung. The applicants submitted joint pleadings on a number of issues. The Court heard, in an expert capacity, Professor Steindorff, former Secretary-General of the German delegation at the negotiations which preceded the signing of the ECSC Treaty. The Court also heard, as witnesses, Messrs Ortún, Vanderseypen and Kutscher, as well as, at the request of Preussag, that undertaking's representatives Messrs Mette and Kröll. The Court also viewed a video recording, made by Aristrain, of the press briefing held by Mr Van Miert on 16 February 1994.

69 A number of new documents were lodged during the hearing at the request of the Court or with its authorisation. The Court also called on the Commission to produce certain documents concerning its relations with the Scandinavian national authorities during 1989 and 1990. Those documents were lodged with the Registry under cover of a Commission letter dated 11 May 1998.

70 The oral procedure was closed at the end of the hearing on 27 March 1998. Since two members of the Chamber were prevented from taking part in the judicial deliberations following the expiry of their mandate on 17 September 1998, the Court's deliberations were continued by the three judges whose signatures the present judgment bears, in accordance with Article 32 of the Rules of Procedure.

71 The applicant claims that the Court should:

- annul Articles 1, 3 and 4 of the Decision in so far as they concern the applicant;

- in the alternative, reduce to an appropriate amount the fine imposed on it by Article 4 of the Decision;

- in the alternative, annul the Letter in so far as it fixes a rate of interest which differs from that indicated in Article 5 of the Decision;

- order the Commission to pay the costs.

72 The defendant submits that the Court should:

- dismiss the action;

- order the applicant to pay the costs.

The claim for annulment of Article 1 of the Decision

73 In support of its claim for annulment of Article 1 of the Decision, the applicant puts forward a number of arguments, which may be grouped as follows. It first raises a series of arguments alleging infringement of its procedural rights. Second, it raises a number of arguments alleging that the Commission breached substantive requirements during the administrative procedure. In a third series of arguments, the applicant submits that Article 65(1) of the Treaty has been infringed (see paragraphs 171 and 172 below).

A - Infringement of the applicant's procedural rights

Failure to forward all the documents to which the Decision refers

Summary of the applicant's arguments

74 The applicant submits that, in so far as the Decision relies on several documents which are also mentioned in the statement of objections, which were neither attached nor forwarded at a later stage in the administrative procedure, the Commission infringed the applicant's rights of defence. The applicant points out that, by letter of 20 December 1992 and during the administrative hearing, it objected to the failure to forward most of those documents.

75 In its reply, the applicant acknowledges that `most of the documents covered by the [present] head of complaint ... were forwarded to it on 19 January 1993' and adds that it `is abandoning this head of complaint inasmuch as it relates to the documents in question'.

76 Asked by the Court to specify to what extent and in respect of which documents it maintained this plea, the applicant indicated, by letter lodged with the Registry on 19 January 1998, that it was abandoning the plea in so far as it had submitted that the documents mentioned in paragraph 17 of the application had not been forwarded to it before the Decision was adopted. However, it was maintaining the plea in so far as it had criticised the Commission for failing to forward those documents to it with the statement of objections, thereby preventing it from using them during the administrative hearing.

Findings of the Court

77 The rights of the defence invoked by the applicant are, in this case, guaranteed by the first paragraph of Article 36 of the ECSC Treaty, according to which the Commission must, before imposing a pecuniary sanction provided for in that Treaty, give the party concerned an opportunity to submit its comments. Regarding compliance with that guarantee in the present case, a distinction must be drawn between the documents in respect of which the applicant had already raised the objection of non-submission in its letter of 20 December 1992 and those in respect of which that objection was expressed for the first time in the application.

- The documents in respect of which the applicant raised the issue of non-submission in its letter of 20 December 1992

78 It is clear from Annex 3 to the statement of objections that a copy of the documents relating to the applicant was sent to it with the Commission's letter of 6 May 1992. A number of documents relied on in the applicant's letter of 20 December 1992 are mentioned in Annex 3.

79 In Annex 2 to the statement of objections, the Commission also provided the applicant with a list of all the documents constituting the file for the present case, indicating those to which it was prepared to allow the applicant access. All of the documents relied on in the applicant's letter of 20 December 1992, with the exception of a set of documents dealing with the exchange of information through Eurofer, which were forwarded to the applicant by Commission letter of 14 July 1992, were classified, in Annex 2 to the statement of objections, as `accessible' or, in the case of a number of internal British Steel documents, as `partially accessible' to the applicant. Regarding this latter category, the applicant has not disputed that the objections are based exclusively on the accessible passages.

80 On 5 June 1992, the applicant was given access to the file in accordance with the arrangements indicated in the Commission's letter of 6 May 1992. It was thus able to obtain a copy of all the documents classified by the Commission as `accessible' or `partially accessible'.

81 In its reply of 18 August 1992 to the statement of objections, the applicant did not complain of any failure to forward documents, with the single exception of `the document cited in paragraph 266' of that statement of objections (p. 5 of the letter of reply). It was only in its letter of 20 December 1992, that is to say more than seven months after the statement of objections, that the applicant provided the Commission with a list of the documents which it claimed had not been forwarded to it.

82 During the administrative hearing from 11 January to 14 January 1993, the Hearing Officer indicated that a copy of the documents mentioned in the applicant's letter of 20 December 1992 might (again) be forwarded to it, and he called on the applicant to ascertain whether, in the light of those documents, its reply to the statement of objections ought to be amended, adding that he would then consider whether the entire case ought to be re-examined (minutes of the hearing, p. 176).

83 On 19 January 1993, a representative of the applicant signed an acknowledgement of receipt, which reads as follows:

`Following your access to files June 5, 1992, your letter dated December 20, 1992, and your request at the hearing January 12, 1993, the documents, listed in the abovementioned letter, have been given to the undersigned as of this date. All of these documents were available either in the appendix 3 to the statement of objections or in the files you consulted on June the 5th, 1992.'

84 It appears, however, from the Commission's statement in defence that, contrary to what that acknowledgement of receipt would suggest, five documents mentioned in the applicant's letter of 20 December 1992 were not given to it on 19 January 1993. Those five documents were none the less classified as `accessible' in the list joined as Annex 2 to the statement of objections, with the exception of one (a British Steel file note concerning a meeting held on 14 September 1988, cited in recital 172 of the Decision) which was not used against the applicant.

85 Although it wrote to the Hearing Officer on 16 February 1993 regarding the contacts established between DG III and the steel industry, and although it received the minutes of the meeting no later than 8 September 1993, the applicant did not return to the issue of file access.

86 The Court takes the view that, in those circumstances, the applicant has failed to establish that it was not enabled, during the administrative procedure, effectively to make its views known on the documents referred to in its letter of 20 December 1992.

87 It follows that the arguments which the applicant draws from an alleged failure to forward the documents referred to in the Decision must be rejected in so far as they concern the documents which the applicant mentions in its letter of 20 December 1992.

- The documents whose non-submission was first raised in the application instituting proceedings

88 This category covers only a limited number of documents, that is to say: the delivery tables, dated 3 December 1990, cited in Annex 1, point 26, to the Decision; the Peine-Salzgitter hand-written note mentioned in recital 63 of the Decision; all of the documents mentioned in recital 115 of the Decision; and the fax of 3 December 1990 from the head of Eurofer's legal department to that association (recital 140 of the Decision).

89 With regard to the documents appended to the statement of objections according to Annex 3 thereto, that is to say all the abovementioned documents with the exception of the first, it must be pointed out that the applicant did not take issue with their non-submission in its letter of 20 December 1992. It must therefore be assumed that they were in fact appended to the statement of objections. In any event, those documents were also included in Annex 2 to that statement, as being documents which were accessible to the applicant in the Commission's files.

90 So far as the delivery tables dated 3 December 1990 are concerned, they were not used against the applicant and do not contain any evidence exonerating it. Moreover, the applicant did not contest those documents after obtaining access to them during the judicial proceedings, following the order of 19 June 1996.

91 It follows that the applicant's arguments alleging a failure to forward the documents referred to in the Decision must be rejected in their entirety.

Infringement of the `principle of ex proprio motu investigation' and of the right to procedural fairness

92 In its first head of complaint, the applicant criticises the defendant for not having verified in detail, despite the requests made during the administrative procedure, the extent to which officials in DG III had encouraged the undertakings to implement the practices of which the Decision accuses them or the extent to which they took part in such practices. The assertion in recital 312 of the Decision that the Commission carried out a thorough investigation in this regard is, the applicant argues, questionable in view of the terse reply given, in recitals 312 and 315 of the Decision, to the detailed presentation made by the applicant in its requests. Moreover, that assertion is gainsaid by the exchange of internal correspondence between DG III and the Directorate-General for Competition (DG IV) annexed by the Commission to its statement in defence.

93 The applicant points out that at no time did the officials in DG IV responsible for the present case themselves inspect the files of DG III concerning meetings between the representatives of the undertakings and the Commission. In the applicants' joint pleadings at the hearing, more specific criticism was levelled at the defendant's failure, in the course of the administrative procedure, to examine the 26 internal DG III notes concerning the meetings held with steel producers between July 1988 and November 1989 and the documents concerning the contacts between the Commission and the Swedish authorities, which were later produced in compliance with the order of 10 December 1997, and at its failure to collect witness statements from Messrs Ortún, Kutscher and Vanderseypen.

94 Under a second head of complaint, the applicant criticises the Commission for not having made the results of its investigation available to the undertakings and for having failed to give them an opportunity, guaranteed by the rights of the defence, to set out their views in this regard before the Decision was adopted, whether by holding a second hearing or by providing the undertakings with an opportunity to submit written observations.

95 The Court notes at the outset that the heads of complaint alleging infringement of the principle of ex proprio motu investigation and of the applicant's procedural rights, in particular to the effect that the Commission refused to conduct fresh hearings, are formally distinct from the question whether the defendant was justified in forming the view that the documents which the applicants produced after the hearing did not corroborate their allegations. That question will be examined at a later stage (see Part D below, which deals with the Commission's involvement in the infringements of which the applicant is accused).

96 With regard, first, to the complaint of infringement of the principle of ex proprio motu investigation, the Court notes that the Commission found itself facing allegations of importance for the defence of the undertakings in question, as, moreover, it recognised in recital 312 of the Decision, and that, with regard to the conduct of its own departments, it was in a privileged position, compared with those undertakings, to establish whether those allegations were true or false.

97 In those circumstances, the Court holds that it follows from the principles of sound administration and equality of arms that the Commission was under an obligation to examine seriously this aspect of the case-file in order to determine the extent to which the allegations in question were or were not well founded. However, it was for the Commission, and not for the applicants, to decide how to conduct such an examination.

98 It appears from the case-file that, by Note No 002793 of 22 July 1991 (Annex 2 to the statement in defence), thus before the statement of objections was sent, Mr Temple Lang, Director of Directorate D `Cartels, Abuse of Dominant Positions, and Other Distortions of Competition III' of DG IV, wrote as follows to Mr Ortún, Director of Directorate E `Internal Market and Industrial Affairs III' of DG III:

`I wish ... to clarify the extent to which information was exchanged between DG III and CDE Eurofer during the meetings for preparation of the steel forward programmes. Could you set out for me:

- the method used to calculate the Community figures for crude steel and product categories when they were published;

- statistics received by DG III during meetings with the CDE delegation, as well as the extent to which they were aggregated and their frequency.

Did you hear any reference, during your meetings, to a "Traverso method", which appears to have the purpose of adapting demand and deliveries by national markets for the various categories of products?'

99 In his reply Note No 10018 of 12 September 1991 (Annex 3 to the statement in defence), Mr Ortún stated inter alia as follows for Mr Temple Lang's attention:

`2. Regarding the information received from Eurofer, apart from a copy of the rapid Eurofer statistics concerning orders and deliveries of which you are aware, we received forecasts in the form annexed ... The data were also aggregated at the EEC level.

I would also point out that DG III had also taken care (while the system of forecasts on a product basis was at an early stage) to publish only production (and not delivery) forecasts, to round them off and to change their definition ... with a view to distancing itself from the definitions adopted by Eurofer.

3. The meetings with the CDE took place within the framework of the meetings of the group of surveillance experts, as a rule every three months, in order to comment on the market situation. These meetings have recently become more occasional in nature. The last meeting, at which the attached [speaking] note was handed to me, dates from 19 July 1991. I consider these meetings to be useful for ensuring a regular monitoring of the market ...

4. With regard to the so-called "Traverso" method, I must admit that none of my present colleagues had heard any reference [to this] ...'

100 The file which the Commission submitted to the Court pursuant to Article 23 also contains a note of 27 January 1993 from Mr Ehlermann, the Director-General of DG IV, to Mr Perissich, the Director-General of DG III (document No 9729, made accessible to the applicant under the order of 10 December 1997), which is worded as follows:

`In the case in question, my departments consulted your departments, in particular during the preparation of the statement of objections and in regard to the written replies of certain undertakings which refer to the action of DG III.

It follows from the hearing which took place between 11 January and 14 January 1993, which representatives of your departments attended, that the parties attach the utmost importance in their respective defences to the argument that the Commission, in this case DG III, was aware of the practices complained of, in particular through the "speaking notes" drafted by the industry.

The Hearing Officer refused the parties, and their representatives who so requested, access to the files of DG III, but suggested to them that they forward to DG IV, within two weeks of the conclusion of the hearing, any documents in their possession which might, at least in their opinion, exonerate them.

So far as this particular point is concerned, I should be very grateful if you could check once more whether you have in your archives any documents of this type (whether correspondence between the undertakings and the Commission or documents originating with the undertakings and made available to the Commission's departments) and, if so, send me copies of them with your comments'.

101 Mr Perissich replied to Mr Ehlermann by Note No 001836 of 12 February 1993 (Annex 4 to the statement in defence). He attached to his note that of 12 September 1991 from Mr Ortún, along with the annexes thereto, and pointed out:

`As you can confirm in the annexes, the very general nature of the information in these "speaking notes" did not in any case give my departments grounds to suspect that they might be the result of practices contrary to the ECSC Treaty.

The purpose of those meetings with Eurofer was always confined to a continuous study of market trends, as provided for under Article 46.1 of the Treaty.

If you so wish, we could send you the speaking notes relating to other quarters. The archives of DG III do not contain any other document which could, in my opinion, have any bearing on this case'.

102 Mr Temple Lang also forwarded to Mr Ortún, by note of 18 February 1993 (document No 9763 on the file sent by the Commission to the Court under Article 23, made available to the applicant pursuant to the order of 10 December 1997), the documents (speaking notes) sent to DG IV by the applicants Preussag and Unimétal following the hearing, requesting Mr Ortún to examine them and to let him know his views `on the significance to be attached to the information which they contain in regard to the practices of beam producers which are the subject of complaint'. Mr Temple Lang also sent to Mr Ortún, by note of 22 February 1993 (document No 9764 on the file sent by the Commission to the Court under Article 23, made available to the applicant pursuant to the order of 10 December 1997), the documents sent by the applicants Cockerill-Sambre, TradeARBED and British Steel, with a request for comments.

103 Mr Ortún sent his comments to Mr Temple Lang by note of 5 May 1993 (document No 9769 on the file sent by the Commission to the Court under Article 23, made available to the applicant pursuant to the order of 10 December 1997), confirming, in substance, the earlier comments of DG III.

104 The Commission's file (see Annex 5 to the statement in defence) also contains a confidential note of 19 February 1993 from Mr Ortún to Mr Schaub (DG IV), which is set out as an `argument in response to accusations' intended to `reply to the producers' assertions that DG III knew of, or was even involved [in the] practices investigated by the Commission (DG IV)'.

105 With regard to the alleged involvement of DG III in exchanges of information concerning quantities and monitoring, that note states as follows:

`Meetings with commercial experts of Eurofer, extended to include non-Eurofer independent operators, were held within the context of Decision No 2448/88 on the market surveillance instituted at the end of the quota system and up to the end of June 1990.

The aggregated production and delivery results of the undertakings were submitted to the participants for their comments and for comparison with the forecasts made within the framework of the Steel Forward Programme (Programme Prévisionnel Acier - PPA). Trends in external trade in the same products were also analysed in order to complete the assessment of the market.

These meetings also made it possible to collect, for purposes of the PPA, information on future market trends (in particular exports) for those products which were the subject of surveillance. At no time during those meetings was any reference made to the possibility of organising the market on an individual product basis.

The "speaking notes" which the representative of the CDE (generally, Mr Traverso) used during those meetings were drafted previously within Eurofer without any officials from DG III being present. The fact that DG III received those speaking notes outside these "monitoring" meetings cannot in any event constitute approval of practices contrary to the ECSC Treaty.

...

It was only at the end of monitoring and for practical reasons that "steel lunches" replaced this type of meeting. The purpose served by these contacts with Eurofer was always confined to the "continuous study of market trends" as provided for under Article 46.1 of the Treaty. It should also be pointed out that, to that end, our departments have developed contacts with all interested parties: associations of independent producers, traders and consumers'.

106 Dealing with DG III's alleged knowledge of the concerted pricing practices, that note states that:

`(a) regarding prices, the speaking notes in question above were always confined to indicating a trend in very general indicators (for example, flat products over their entire range) relating to the past and an estimate of developments expected over the following quarter.

Here too, the very general nature of the information did not allow our departments in any case to suspect practices contrary to the ECSC Treaty.

(b) Harmonisation of extras

Decisio