3.

In its second submission — infringement of the Treaty and of rules of law relating to its application — the applicant makes a series of complaints which, for the sake of clarity, may be grouped under three headings: (1) errors with regard to the legal basis of the decision; (2) errors with regard to the charge of setting up an undisclosed accounting system intended to camouflage discounts; (3) errors concerning the charge of obstructing the Commission's inspection. Let me begin with the first group. The errors complained of are as follows: (a) the fact that the measure does not specifically indicate which provisions of Decision No 14/64 Krupp is alleged to have infringed, whilst Article 1 of that decision contains a full and detailed list of the documents failure to produce which constitutes an infringement of the rules; (b) the fact that, in contrast to what is provided for in Article 47 of the ECSC Treaty, infringements of the provisions of the said decision do not entail imposition of a pecuniary penalty. In my opinion, both of those complaints are without foundation. With regard to the first one, I would observe that the Commission is not obliged to indicate precisely the specific provision which has been infringed. The documents listed in subparagraphs (a) to (g) of Article 1 of Decision No 14/64 are in fact merely examples of the materials to be placed at the disposal of the inspectors. The legislature is interested in only one thing: that the documents shown to the Commission's officers should include ‘all supporting documents’ (eighth recital in the preamble) and contain ‘the information needed to check effectively’ that the rules relating to prices have been complied with (fourth recital in the preamble); in other words, that they are exhaustive and genuine. The second complaint is expressly contradicted by Article 3 of the decision which provides that: ‘Undertakings which evade their obligations under this decision shall be liable to the penalties provided for in the third paragraph of Article 47 of the Treaty’. As I have said, the errors in the second group concern the charge that the applicant maintained an undisclosed accounting system for the purpose of hiding confidential discounts. According to Krupp, the Commission knew about those discounts. It had in fact approved them in a specific agreement. It was not therefore correct to say that the undertaking had hidden them from it by maintaining a parallel accounting system. I believe that Krupp is to a large extent right. In reply to a question from the Court, the Commission admitted that in the period from 1 January 1980 to 30 June 1981 it authorized undertakings in the steel industry which had been affected by the crisis to offer discounts of identical amount for each group of comparable consumers. The agreement provided, by way of derogation from the provisions of Article 60 of the Treaty, that the discounts should be neither published nor notified. However, the undertakings were to inform the Commission's inspectors of them so that the latter could verify that the rules prohibiting discriminatory practices had been complied with. At the time when the inspection took place therefore, the discounts were lawful. Moreover, it cannot be said that they were of a discriminatory character, as is proved by the fact that the Commission did not see fit to adopt an ad hoc decision addressed to Krupp. Why then does it accuse the applicant of maintaining an undisclosed accounting system? The oral procedure threw some light on that aspect of the case. It emerged in fact that, perhaps because of an excess of compartmentalization in the Commission, the inspectors were unaware of the agreement regarding discounts. Consequently, they regarded them as unlawful and concluded that the accounting system used by Krupp was intended to hide them. That being the case, the reasons for which Krupp adopted that system might well arouse the interest of the German authorities. For the purposes of Community law however the argument which it advances is fully relevant. Finally, let me turn my attention to the errors in the third group. According to the applicant, those errors are as follows: (a) the Commission regarded as an Obstacle' put in the way of its officials something that, during the first phase of the inspection, was no more than a difference of opinion as to the scope of its powers of inspection. The refusal to allow the inspectors into the place where the archives were kept was based on precise provisions of German law; Krupp was therefore entitled to ask the Commission for a decision clarifying that point and the exercise of a right cannot be regarded as an Obstacle'; (b) Krupp in no way obstructed the carrying out of checks during the second phase of the inspection. This is proved by the fact that the inspectors were able to examine all the documents, even though only after a ‘closely contested argument’. The complaint made at (a) is well founded. I shall not go any further into the question of the right of the inspectors to have access to the place in which the archives were kept. That was in fact resolved by the decision of 22 June 1981 which Krupp has complied with, even though reluctantly. On the other hand, let me underline the admissions made by the defendant during the proceedings. It recognizes that undertakings have a right to ask for a decision defining the contents and limits of its powers of inspection (a right, moreover, the existence of which has been recognized by the Court in its judgment of 14 April 1960 in Case 31/59 Acciaierie e Tubificio di Brescia v High Authority [1960] ECR 71). It also declares that the events which led it to adopt the decision of 22 June 1981 are not the subject of the decision of 13 July 1983. It seems to me that is sufficient to conclude that the latter measure should be declared void in so far as it alleges that Krupp obstructed the investigations (Article 1) by refusing to grant the inspectors ‘access to the places in which the documents were kept’ and by forcing the Commission to ‘adopt an individual decision’. On the other hand, the complaint made at (b) is without foundation. According to Krupp, the second phase of the inspection went smoothly, so smoothly in fact that the Commission was able to establish the existence of a parallel accounting system. However, that statement does not correspond to the facts. As we learned during the hearing, the inspectors who wanted to take possession of documents relating to the discounts had considerable difficulty, not least because they were kept in special places and, in the case of certain documents, in places other than the company's registered office. However, it is a general principle that agreements are to be carried out in good faith. It follows that the obligation to produce the accounts relating to the discounts may be regarded as fulfilled only by immediately and spontaneously putting the documents into the hands of the inspectors. Since that did not happen in this case, Krupp must be regarded as having broken the agreement in which that obligation was laid down. Moreover, the applicant itself has stated that the inspectors obtained possession of the documents only after ‘a closely contested argument’. Such an admission gives further credence to the allegation that the applicant obstructed the inspection contrary to Article 47 of the ECSC Treaty and to Decision No 14/64.