Judgment of the Court (Fourth Chamber) of 16 May 1984. - Eisen und Metall Aktiengesellschaft v Commission of the European Communities. - ECSC Treaty - Failure to observe price lists - Fine. - Case 9/83.



European Court reports 1984 Page 02071



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . ECSC - PRICES - PUBLICATION OF PRICE LISTS AND CONDITIONS OF SALE - OBLIGATIONS OF UNDERTAKINGS ENGAGED IN THE DISTRIBUTION OF STEEL - DECISION NO 1836/81 - APPLICATION TO TRANSACTIONS STILL IN PROGRESS

( DECISION NO 1836/81/ECSC )

2 . MEASURES ADOPTED BY THE INSTITUTIONS - OBLIGATION TO PROVIDE A STATEMENT OF REASONS - SCOPE - DECISION IMPOSING A FINE

3 . ECSC - DECISION IMPOSING A FINE OR ORDERING A PERIODIC PENALTY PAYMENT - ADMINISTRATIVE PROCEDURE - OBLIGATION ON THE PART OF THE COMMISSION TO GIVE THE PARTY CONCERNED THE OPPORTUNITY TO SUBMIT ITS COMMENTS - SCOPE

( ECSC TREATY , ART . 36 )

Summary

1 . DECISION NO 1836/81 WAS BASED ON THE NEED TO IMPLEMENT A VERY SHORT-TERM ACTION FOR RATIONALIZATION OF THE STEEL MARKET IN SUCH A WAY AS TO BRING ABOUT THE RISE IN PRICES NECESSARY TO PREVENT FINANCIAL DISASTER . THE OBLIGATION INCUMBENT ON UNDERTAKINGS ENGAGED IN DISTRIBUTION ACTIVITIES TO PUBLISH THEIR PRICE LISTS AND TO REFRAIN FROM SELLING THEIR PRODUCTS AT A PRICE LOWER THAN THE LIST PRICE CONSTITUTES THE METHOD SELECTED BY THE COMMUNITY LEGISLATURE TO TERMINATE FORTHWITH THE GRANT OF INDIVIDUAL REBATES AND THE DISSIMILAR CONDITIONS OF SALES RESULTING THEREFROM AND THUS TO CONTRIBUTE TO A GENERAL INCREASE IN THE LEVEL OF PRICES . IT FOLLOWS THAT THE PROVISIONS OF DECISION NO 1836/81 MUST APPLY TO ALL TRANSACTIONS STILL IN PROGRESS AFTER ITS ENTRY INTO FORCE AND MUST TAKE PRECEDENCE , WHERE APPROPRIATE , OVER ANY OBLIGATIONS ARISING UNDER PRE-EXISTING FRAMEWORK AGREEMENTS .

2 . ALTHOUGH THE STATEMENT OF REASONS ON WHICH A DECISION IMPOSING A FINE FOR BREACH OF THE ECSC LEGISLATION ON PRICES IS BASED MAY BE SUCCINCT , IT MUST BE CONSIDERED SATISFACTORY IF THE INFRINGEMENT WITH WHICH AN UNDER TAKING IS CHARGED MAY BE CLEARLY ESTABLISHED FROM THE STATEMENT OF OBJECTIONS IN CONJUNCTION WITH THE DECISION AND THE UNDERTAKING HAD ALREADY CLEARLY PERCEIVED , IN THE COURSE OF THE ADMINISTRATIVE PROCEDURE , THE SCOPE OF THE OBJECTION COMMUNICATED TO IT .

3 . IT IS CLEAR FROM THE TERMS OF ARTICLE 36 OF THE ECSC TREATY THAT THE OBLIGATION ON THE PART OF THE COMMISSION TO GIVE THE PARTY CONCERNED THE OPPORTUNITY TO SUBMIT ITS COMMENTS BEFORE IMPOSING A PECUNIARY SANCTION OR ORDERING A PERIODIC PENALTY PAYMENT CANNOT BE UNDERSTOOD AS REQUIRING THE COMMISSION TO PUT FORWARD ITS COUNTER-ARGUMENTS IN RELATION TO THE ARGUMENTS PUT FORWARD IN ITS DEFENCE BY THE PARTY CONCERNED . THE RIGHTS OF THE DEFENCE ARE GUARANTEED BY THAT ARTICLE SINCE IT PROVIDES THE PARTY CONCERNED WITH AN OPPORTUNITY TO PUT FORWARD ITS ARGUMENTS . THE COMMISSION CANNOT BE REQUIRED TO REPLY TO THOSE ARGUMENTS , TO CARRY OUT FURTHER INQUIRIES OR TO HEAR WITNESSES FOR THE PARTY CONCERNED , WHERE IT CONSIDERS THAT THE PRELIMINARY INVESTIGATION OF THE CASE HAS BEEN SUFFICIENT .

Parties

IN CASE 9/83

EISEN UND METALL AKTIENGESELLSCHAFT , GELSENKIRCHEN , REPRESENTED BY MARTHA GRUNNING , RECHTSANWALT , DUSSELDORF , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , 34 B RUE PHILIPPE-II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , ROLF WAGENBAUR , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR A DECLARATION THAT THE COMMISSION DECISION OF 9 DECEMBER 1982 IMPOSING A FINE ON THE APPLICANT UNDER ARTICLE 15 OF DECISION NO 1836/81/ECSC IS VOID ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 14 JANUARY 1983 EISEN UND METALL AKTIENGESELLSCHAFT , GELSENKIRCHEN , ( HEREINAFTER REFERRED TO AS ' ' EISEN AG ' ' ), BROUGHT AN ACTION PURSUANT TO ARTICLE 33 AND THE SECOND PARAGRAPH OF ARTICLE 36 OF THE ECSC TREATY , IN WHICH IT REQUESTED THE COURT TO DECLARE VOID THE COMMISSION DECISION OF 9 DECEMBER 1982 IMPOSING A FINE OF DM 133 736 ON THE APPLICANT UNDER ARTICLE 15 OF DECISION NO 1836/81/ECSC OF 3 JULY 1981 ON THE OBLIGATION OF DISTRIBUTIVE UNDERTAKINGS TO PUBLISH PRICE LISTS AND CONDITIONS OF SALE AND ON PRACTICES PROHIBITED FOR THESE UNDERTAKINGS ( OFFICIAL JOURNAL L 184 , P . 13 ), OR , IN THE ALTERNATIVE , TO REDUCE THE FINE .

2 THE CONTESTED DECISION STATES THAT DURING THE PERIOD FROM 14 OCTOBER 1981 TO THE END OF JANUARY 1982 EISEN AG ON SEVERAL OCCASIONS SOLD ROLLED PRODUCTS AT A PRICE LOWER THAN THE LIST PRICE WHICH IT HAD PUBLISHED IN ACCORDANCE WITH THE AFORESAID DECISION , NO 1836/81 , AND IT ESTABLISHED , IN ARTICLE 1 , THAT THE PRICE REDUCTIONS IN QUESTION CONSTITUTE INFRINGEMENTS OF THE LATTER DECISION .

3 IN SUPPORT OF ITS APPLICATION , EISEN AG ADVANCED THREE CATEGORIES OF SUBMISSIONS RELATING TO :

( A ) INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS ;

( B)INFRINGEMENT OF THE ECSC TREATY AND OF THE RULES OF LAW RELATING TO ITS APPLICATION ;

( C)MISUSE OF POWERS .

4 THE APPLICANT ' S FIRST SUBMISSION CONCERNING THE INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS RELATES TO THE OBLIGATION TO STATE THE REASONS ON WHICH THE DECISION WAS BASED . ACCORDING TO EISEN AG , THE COMMISSION DISREGARDED THE FACT THAT THE CONDITIONS LAID DOWN FOR THE IMPOSITION OF A FINE HAD NOT BEEN FULFILLED IN THIS CASE , WITH THE RESULT THAT THE CONTESTED DECISION WAS AT ONE AND THE SAME TIME UNFOUNDED AND LACKED A SUFFICIENT STATEMENT OF THE REASONS ON WHICH IT WAS BASED .

5 IN THAT REGARD EISEN AG CONTENDS IN THE FIRST PLACE THAT ALL THE CONTESTED TRANSACTIONS WERE CARRIED OUT IN PERFORMANCE OF ' ' FRAMEWORK CONTRACTS ' ' CONCLUDED WITH A NUMBER OF UNDERTAKINGS , IN PARTICULAR MARKMANN , SCHLAFHORST , CLAAS AND BERGBAU , PRIOR TO 15 SEPTEMBER 1981 , THE DATE OF EXPIRY OF THE PERIOD SET BY THE COMMISSION FOR THE PUBLICATION OF PRICE LISTS BY STEEL DEALERS .

6 THE COMMISSION DENIES , IN THE FIRST PLACE , THAT THE AGREEMENTS REFERRED TO BY EISEN AG ARE IN THE NATURE OF ' ' FRAMEWORK CONTRACTS ' ' . MOREOVER , IT CONSIDERS THAT , EVEN ON THE ASSUMPTION THAT IN THIS CASE THE AGREEMENTS ARE GENUINE ' ' FRAMEWORK CONTRACTS ' ' , THE PROVISIONS OF DECISION NO 1836/81 , WHICH WAS AN EMERGENCY MEASURE OF LIMITED DURATION , HAD TO BE DIRECTLY APPLICABLE ALSO TO PRE-EXISTING CONTRACTS IF THAT DECISION WAS NOT TO BE RENDERED WHOLLY INEFFECTIVE BY THE CHARGING OF PRICES STIPULATED IN PRE-EXISTING MEDIUM OR LONG-TERM CONTRACTS .

7 IT MUST BE POINTED OUT IN THAT REGARD THAT MEASURES OF ECONOMIC POLICY ADOPTED , AS IN THIS CASE , IN A SITUATION IN WHICH THE MARKET IS SERIOUSLY DISTURBED CAN ACHIEVE THEIR OBJECTIVE ONLY IF THEY TAKE EFFECT IMMEDIATELY .

8 MOREOVER , THAT REQUIREMENT WAS EXPRESSLY REFERRED TO IN THE THIRD RECITAL IN THE PREAMBLE TO DECISION NO 1836/81 WHERE IT IS EMPHASIZED THAT THE STEEL MARKET CONTINUES TO BE SERIOUSLY AFFECTED BY THE DETERIORATION OF THE ECONOMIC SITUATION AND THAT , IN ORDER TO CREATE ECONOMIC CONDITIONS FAVOURABLE TO THE INDISPENSABLE RESTRUCTURING OF THE IRON AND STEEL INDUSTRY , ' ' IMMEDIATE ACTION WITH REGARD TO THE SALES PRICES OF STEEL IS ABSOLUTELY NECESSARY ; . . . URGENT IMPLEMENTATION OF SUCH ACTION IS BECOMING INCREASINGLY ESSENTIAL IN THIS PERIOD OF CRISIS ' ' .

9 IT MUST BE REMEMBERED IN THAT REGARD THAT DECISION NO 1836/81 WAS BASED , AS IS ALSO CLEAR FROM THE RECITALS IN THE PREAMBLE THERETO , ON THE NEED ' ' TO IMPLEMENT A VERY SHORT-TERM ACTION FOR RATIONALIZATION OF THE STEEL MARKET IN SUCH A WAY AS TO BRING ABOUT THE RISE IN PRICES NECESSARY TO PREVENT FINANCIAL DISASTER ' ' . THUS , THE OBLIGATION INCUMBENT ON UNDERTAKINGS ENGAGED IN DISTRIBUTION ACTIVITIES TO PUBLISH THEIR PRICE LISTS AND TO REFRAIN FROM SELLING THEIR PRODUCTS AT A PRICE LOWER THAN THE LIST PRICE CONSTITUTES THE METHOD SELECTED BY THE COMMUNITY LEGISLATURE TO TERMINATE FORTHWITH THE GRANT OF INDIVIDUAL REBATES AND THE DISSIMILAR CONDITIONS OF SALE RESULTING THEREFROM AND THUS TO CONTRIBUTE TO A GENERAL INCREASE IN THE LEVEL OF PRICES .

10 IT FOLLOWS THAT THE PROVISIONS OF DECISION NO 1836/81 MUST APPLY TO ALL TRANSACTIONS STILL IN PROGRESS AFTER ITS ENTRY INTO FORCE AND MUST TAKE PRECEDENCE , WHERE APPROPRIATE , OVER ANY OBLIGATIONS ARISING UNDER PRE-EXISTING FRAMEWORK AGREEMENTS .

11 EISEN AG SUBSEQUENTLY CONTENDED THAT THE TRANSACTIONS CONCLUDED WITH MARKMANN MUST NOT BE REGARDED AS COMPARABLE TRANSACTIONS SINCE THEY EXHIBIT SPECIAL CHARACTERISTICS FOR THE PURPOSES OF ARTICLE 9 ( 1 ) ( C ) OF DECISION NO 1836/81 . THEY ARE IN FACT TRANSACTIONS WHOSE RELEVANT COMMERCIAL CHARACTERISTICS , OTHER THAN THOSE SPECIFIED UNDER SUBPARAGRAPHS ( A ) AND ( B ) OF THE SAME PARAGRAPH , DIFFER TO A MATERIAL EXTENT FROM THOSE PECULIAR TO THE REMAINDER OF THE APPLICANT ' S COMMERCIAL TRANSACTIONS . IN SUPPORT OF THAT CONTENTION , THE APPLICANT MAINTAINED THAT MARKMANN REGULARLY PURCHASES FROM IT THE QUANTITIES OF PRODUCTS IN CATEGORY I ( A ) ( FIRST GRADE PRODUCTS ) WHICH THE APPLICANT , A SCRAP DEALER , IS AT TIMES REQUIRED TO BUY IN ORDER TO OBTAIN PRODUCTS IN CATEGORY II ( A ) ( SUB-STANDARD PRODUCTS OR SECONDS ) WHICH ARE THE MAIN SUBJECT-MATTER OF ITS COMMERCIAL DEALINGS .

12 THE COMMISSION , WHILST EXPRESSING ITS RESERVATIONS WITH REGARD TO EISEN AG ' S CONTENTION THAT IT IS PRIMARILY A DEALER IN PRODUCTS IN CATEGORY II ( A ), POINTED OUT THAT THE FACT THAT MARKMANN IS A PARTICULARLY RELIABLE AND FAITHFUL CUSTOMER OF THE APPLICANT CANNOT ENDOW THE TRANSACTIONS CONCLUDED WITH THAT UNDERTAKING WITH SPECIAL CHARACTERISTICS FOR THE PURPOSES OF THE ABOVE-MENTIONED PROVISION .

13 IN THE FIRST PLACE , IT MUST BE STATED , AS REGARDS THE REFERENCE TO THE SMALL PROPORTION OF FIRST-GRADE STEEL SOLD BY THE APPLICANT , THAT EVEN IF IT WERE ESTABLISHED THAT THE TRANSACTIONS INVOLVING PRODUCTS IN CATEGORY I ( A ) ACCOUNTED FOR ONLY A RELATIVELY SMALL PROPORTION OF THE TRANSACTIONS CONCLUDED BY EISEN AG , THE FACT REMAINS THAT IT WOULD BE POSSIBLE TO ASCERTAIN THE SPECIAL CHARACTERISTICS OF A TRANSACTION FOR THE PURPOSES OF ARTICLE 9 SOLELY FROM A COMPARISON BETWEEN TRANSACTIONS INVOLVING PRODUCTS IN CATEGORY I ( A ), THE ONLY PRODUCTS IN RESPECT OF WHICH DECISION NO 1836/81 REQUIRES A PRICE LIST TO BE PUBLISHED .

14 NEXT , IT MUST BE OBSERVED THAT THE MERE FACT THAT MARKMANN PURCHASES PRODUCTS IN CATEGORY I ( A ) FROM EISEN AG MORE FREQUENTLY THAN DO OTHER UNDERTAKINGS , SUCH AS CLAAS AND SCHLAFHORST , TO WHICH THE APPLICANT ITSELF ADMITS HAVING SOLD FIRST-GRADE STEEL , CANNOT ENDOW THE CONTRACTS CONCLUDED WITH MARKMANN WITH COMMERCIAL CHARACTERISTICS WHICH ARE MATERIALLY DIFFERENT FROM THOSE OF THE CONTRACTS CONCLUDED WITH THE OTHER UNDERTAKINGS . FURTHERMORE , IT WOULD HAVE BEEN POSSIBLE TO TAKE ACCOUNT OF THE STABILITY OF THE RELATIONSHIP WITH MARKMANN BY THE GRANT OF A FIDELITY REBATE WHICH IS BY NO MEANS PROHIBITED BY DECISION NO 1836/81 , PROVIDED THAT IT IS PUBLISHED IN THE PRICE LIST .

15 FINALLY , EISEN AG CONTENDED THAT THE TRANSACTIONS CONCLUDED WITH BERGBAU WERE COVERED BY ARTICLE 9 ( 1 ) ( B ), INASMUCH AS THE PRODUCTS DELIVERED IN PURSUANCE OF THOSE TRANSACTIONS CONSISTED IN PRACTICE OF SUB-STANDARD ROLLED PRODUCTS , THAT IS TO SAY PRODUCTS WHICH ARE NOT ' ' THE SAME ( AS ) OR SIMILAR ' ' TO THOSE DELIVERED IN CONNECTION WITH OTHER TRANSACTIONS . THAT WAS POSSIBLE , IT IS CLAIMED , BECAUSE BERGBAU USED THOSE PRODUCTS FOR PURPOSES IN RESPECT OF WHICH CERTAIN CHARACTERISTICS DISTINGUISHING FIRST-GRADE STEEL FROM SUB-STANDARD STEEL WERE OF NO IMPORTANCE .

16 IT IS CLEAR FROM THE ' ' FRAMEWORK CONTRACT ' ' OF 3 APRIL 1981 THAT THE AGREEMENT ENTERED INTO WITH BERGBAU IS FOR THE DELIVERY OF ' ' STEEL 37 QUALITY SHEET CORRESPONDING TO DIN 17100 , GRADE ONE ' ' . THAT CONTRACT ALSO EXPRESSLY PROVIDES AS FOLLOWS :

' ' AS REGARDS ALL THE R ST 37-2 QUALITY SHEET , PLEASE PROVIDE , ON DELIVERY , FACTORY CERTIFICATES IN ACCORDANCE WITH DIN 50049/2.1 OR CONTROL SLIPS IN ACCORDANCE WITH DIN 50049/2.2 . DELIVERIES UNACCOMPANIED BY CONTROL SLIPS CAN NO LONGER BE ACCEPTED . ' '

17 ALL THE ORDERS AND CONFIRMATIONS OF ORDERS INCLUDED IN THE FILE ON THE CASE BY THE APPLICANT CONTAIN AN EXPRESS REFERENCE TO QUALITY STANDARDS OF THE STEEL INDUSTRY IN THE FEDERAL REPUBLIC OF GERMANY ( DIN STANDARDS ). IF THE INVOICES THEMSELVES DO NOT REFER TO DIN STANDARDS , THEY REFER TO CONFIRMATIONS OF ORDERS WHICH EXPRESSLY INDICATE THOSE STANDARDS .

18 IN THOSE CIRCUMSTANCES , THEREFORE , IT IS IMPOSSIBLE TO DEDUCE FROM THE DOCUMENTS INCLUDED IN THE FILE FACTORS WHICH SUPPORT THE CONTENTION THAT THE TRANSACTIONS CONCLUDED BETWEEN EISEN AG AND BERGBAU INVOLVED SUB-STANDARD PRODUCTS .

19 MOREOVER , IS MUST BE REMEMBERED THAT , ACCORDING TO ARTICLE 7 OF DECISON NO 1836/81 , STEEL DEALERS ARE REQUIRED , WHEN SELLING A SUB-STANDARD PRODUCT , TO STATE ON THE INVOICE THE REASONS FOR CLASSIFICATION AS SUB-STANDARD PRODUCTS OR SECONDS .

20 EISEN AG HAS BEEN UNABLE TO EXPLAIN WHY IT ACTED IN A MANNER WHICH , IN THE FIRST PLACE , WAS CONTRARY TO ARTICLE 7 AND WAS PUNISHABLE BY THE IMPOSITION OF A FINE AND , SECONDLY , PREVENTED IT FROM RELYING ON ITS INVOICES IN SUPPORT OF THE CONTENTION THAT THE MATERIAL SOLD FELL OUTSIDE THE SCOPE OF DECISION NO 1836/81 . THE REFERENCE TO TECHNICAL DIFFICULTIES INVOLVED IN COMPUTER INVOICING CANNOT IN ANY EVENT JUSTIFY A BREACH OF THE RELEVANT COMMUNITY RULES .

21 AS EVIDENCE THAT , ALTHOUGH THE INVOICES RELATE EXPRESSLY TO FIRST-GRADE PRODUCTS THERE WAS A TACIT AGREEMENT BETWEEN ITSELF AND BERGBAU TO THE EFFECT THAT THE LATTER WAS PREPARED TO ACCEPT PRODUCTS IN CATEGORY II ( A ) INSTEAD OF PRODUCTS IN CATEGORY I ( A ), EISEN AG CONTENDED THAT THE MATERIAL SUPPLIED TO BERGBAU WAS ALWAYS IMPORTED FROM THE GERMAN DEMOCRATIC REPUBLIC AND WAS THEREFORE SUB-STANDARD . ACCORDING TO EISEN AG , THE MATERIAL IN QUESTION DOES NOT SATISFY THE CONDITIONS LAID DOWN BY THE RULES ON STANDARDIZATION ( DIN STANDARDS ) OF THE FEDERAL REPUBLIC OF GERMANY , ALTHOUGH THE COMMERCIAL AUTHORITIES OF THE EXPORTING COUNTRY ALWAYS DESCRIBE IT IN THEIR INVOICES AS A FIRST-GRADE PRODUCT .

22 IN ORDER TO DETERMINE WHETHER THAT ARGUMENT IS WELL FOUNDED , IT IS HOWEVER UNNECESSARY TO EXAMINE THE CHARACTERISTICS OF THE PRODUCT IMPORTED FROM THE GERMAN DEMOCRATIC REPUBLIC . THERE ARE OTHER FACTORS ON THE BASIS OF WHICH THE CONCLUSION MAY BE DRAWN THAT THE MATERIAL DELIVERED BY EISEN AG TO BERGBAU NORMALLY FELL WITHIN CATEGORY I ( A ).

23 IN THAT REGARD IT MUST IN THE FIRST PLACE BE STATED THAT ON SEVERAL OCCASIONS DURING THE PERIOD TAKEN INTO ACCOUNT BY THE COMMISSION ' S INSPECTORS , EISEN AG SUPPLIED BERGBAU WITH CATEGORY II ( A ) MATERIAL AND EACH TIME INDICATED EXPRESSLY ON THE INVOICE THAT A ' ' SPECIAL CONSIGNMENT ' ' WAS INVOLVED ( SEE INVOICES NO 40/32749 OF 10 . 12 . 1981 , NO 40/32808 , NO 40/32809 AND NO 40/32810 OF 16 . 12 . 1981 , NO 40/32895 OF 21 . 12 . 1981 , NO 40/30037 OF 11 . 1 . 1982 AND NO 40/30076 OF 14 . 1 . 1982 ). THAT INDICATION WOULD HAVE BEEN UNNECESSARY IF , AS EISEN AG HAS STATED , BERGBAU HAD TACITLY ACCEPTED DELIVERIES OF SUB-STANDARD MATERIAL IN PLACE OF FIRST-GRADE MATERIAL . IT MAY THEREFORE BE CONCLUDED THAT IN CASE IN WHICH NO SUCH INDICATION WAS PROVIDED , FIRST-GRADE MATERIAL WAS SUPPLIED .

24 FURTHERMORE , AS REGARDS MORE PARTICULARLY THE STEEL IMPORTED FROM THE GERMAN DEMOCRATIC REPUBLIC , IT IS POSSIBLE TO STATE , ON THE BASIS OF THE TABLE OF STOCKS SUBMITTED BY THE APPLICANT AT THE COURT ' S REQUEST , THAT THE SERIAL NUMBERS ASSIGNED TO THOSE PRODUCTS ARE NOT GIVEN IN ANY OF THE CONTESTED INVOICES , WHICH SEEMS TO RULE OUT THE POSSIBILITY THAT EISEN AG DELIVERED TO BERGBAU MATERIAL IMPORTED FROM THE GERMAN DEMOCRATIC REPUBLIC .

25 IN THE LIGHT OF THE CONSIDERATIONS SET OUT ABOVE , IT MUST THEREFORE BE STATED THAT THE CONDITIONS LAID DOWN FOR THE IMPOSITION OF A FINE ARE FULFILLED AND THAT THE APPLICANT ' S SUBMISSION TO THE CONTRARY MUST BE REJECTED .

26 IN ITS SECOND SUBMISSION WHICH IS ALSO CONCERNED WITH ALLEGED DEFECTS IN THE STATEMENT OF REASONS , EISEN CONTENDED THAT THE COMMISSION FAILED TO SPECIFY WHICH PROVISIONS THE APPLICANT HAD ALLEGEDLY INFRINGED AND THAT IT MERELY REFERRED IN GENERAL TERMS TO ARTICLE 15 OF DECISION NO 1836/81 , PARAGRAPH ( 1 ) OF WHICH PROVIDES THAT : ' ' STEEL DEALERS WHO INFRINGE THE PROVISIONS OF ARTICLES 2 TO 13 INCLUSIVE SHALL BE LIABLE TO FINES NOT EXCEEDING TWICE THE VALUE OF THE SALES EFFECTED IN DISREGARD THEREOF . ' '

27 ALTHOUGH IT IS TRUE THAT THE STATEMENT OF REASONS ON WHICH THE DECISIONS WAS BASED IS IN FACT RELATIVELY SUCCINCT , IT MUST NONE THE LESS BE BORNE IN MIND THAT IN ITS STATEMENT OF OBJECTIONS OF 16 AUGUST 1982 , THE COMMISSION CHARGES EISEN AG WITH ' ' UNDERCUTTING ' ' ITS OWN LIST PRICES , WHICH IS TANTAMOUNT TO CHARGING THE APPLICANT WITH APPLYING DISSIMILAR CONDITIONS TO COMPARABLE TRANSACTIONS , THAT IS TO SAY CARRYING ON A PRACTICE WHICH IS PENALIZED BY ARTICLE 8 . THE CHARGING OF A PRICE LOWER THAN THE PUBLISHED LIST PRICE NECESSARILY INVOLVES AN ELEMENT OF UNFAIRNESS IN RELATION TO TRANSACTIONS CONCLUDED ON THE BASIS OF THE LIST PRICES .

28 MOREOVER , IT IS CLEAR THAT THE APPLICANT WAS NOT UNDER A MISAPPREHENSION AS REGARDS THE NATURE OF THE COMMISSION ' S OBJECTION , AS IS SHOWN BY ITS COMMENTS OF 20 SEPTEMBER 1982 IN REPLY TO THE STATEMENT OF OBJECTIONS , IN WHICH IT RELIES ON THE CONTENTION THAT THE CONTESTED TRANSACTIONS DISPLAYED DIFFERENT CHARACTERISTICS .

29 IT MUST THEREFORE BE CONCLUDED THAT THE INFRINGEMENT WITH WHICH EISEN AG IS CHARGED MAY BE CLEARLY ESTABLISHED FROM THE STATEMENT OF OBJECTIONS IN CONJUNCTION WITH THE DECISION AND THAT THE APPLICANT HAD ALREADY CLEARLY PERCEIVED , IN THE COURSE OF THE ADMINISTRATIVE PROCEDURE , THE SCOPE OF THE OBJECTION COMMUNICATED TO IT .

30 AS REGARDS THE SUBMISSIONS CONCERNING THE INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS , EISEN AG ALSO CONTENDED THAT THE COMMISSION INFRINGED THE RIGHTS OF THE DEFENCE INASMUCH AS , IN THE COURSE OF THE PROCEDURE WHICH LED TO THE ADOPTION OF THE CONTESTED DECISION , IT FAILED TO DRAW THE APPLICANT ' S ATTENTION TO THE FACT THAT IT HAD NO INTENTION OF MAKING ANY INQUIRY INTO THE EVIDENCE IN EXONERATION ADDUCED BY THE APPLICANT .

31 IN REPLY THE COMMISSION STATED THAT ARTICLE 36 OF THE ECSC TREATY REQUIRES IT , BEFORE IMPOSING A PECUNIARY SANCTION OR ORDERING A PERIODIC PENALTY PAYMENT , TO ' ' GIVE THE PARTY CONCERNED THE OPPORTUNITY TO SUBMIT ITS COMMENTS ' ' . BY GIVING THE APPLICANT AN OPPORTUNITY TO SUBMIT WRITTEN COMMENTS , THE COMISSION COMPLIED WITH THAT OBLIGATION , IT CLAIMS .

32 IT IS CLEAR FROM THE PROVISIONS OF ARTICLE 36 THAT THE ABOVEMENTIONED OBLIGATION CANNOT BE UNDERSTOOD AS REQUIRING THE COMMISSION TO PUT FORWARD ITS COUNTER-ARGUMENTS IN RELATION TO THE ARGUMENTS PUT FORWARD IN ITS DEFENCE BY THE PARTY CONCERNED . THE RIGHTS OF THE DEFENCE ARE GUARANTEED BY THAT ARTICLE SINCE IT PROVIDES THE PARTY CONCERNED WITH AN OPPORTUNITY TO PUT FORWARD ITS ARGUMENTS . THE COMMISSION CANNOT BE REQUIRED TO REPLY TO THOSE ARGUMENTS , TO CARRY OUT FURTHER INQUIRIES OR TO HEAR WITNESSES FOR THE PARTY CONCERNED , WHERE IT CONSIDERS THAT THE PRELIMINARY INVESTIGATION OF THE CASE HAS BEEN SUFFICIENT , FOR THAT WOULD BE LIKELY TO RENDER THE PROCEDURE FOR ESTABLISHING AN INFRINGEMENT TOO CUMBERSOME AND EXTEND ITS DURATION UNNECESSARILY . THAT SUBMISSION MUST THEREFORE BE REJECTED .

33 IN ITS SUBMISSIONS CONCERNING THE ALLEGED INFRINGEMENT OF THE ECSC TREATY AND OF THE PROVISIONS OF DECISION NO 1836/81 , EISEN AG CLAIMS THAT THE COMMISSION DISREGARDED A NUMBER OF RULES OF SUBSTANTIVE LAW .

34 IN THE LIGHT OF THE CONSIDERATIONS REFERRED TO EARLIER , THE SUBMISSION CONCERNING THE ALLEGED INFRINGEMENT OF ARTICLE 15 OF THE ECSC TREATY , ACCORDING TO WHICH THE DECISIONS OF THE HIGH AUTHORITY MUST STATE THE REASONS ON WHICH THEY ARE BASED , MUST BE REJECTED AT ONCE . AS HAS ALREADY BEEN POINTED OUT , THERE ARE NO GROUNDS FOR TAKING THE VIEW THAT THE CONTESTED DECISION DID NOT STATE THE REASONS ON WHICH IT WAS BASED .

35 AS REGARDS THE ALLEGED INFRINGEMENT OF ARTICLE 15 OF DECISION NO 1836/81 , IT HAS ALREADY BEEN OBSERVED THAT THE INFRINGEMENT ESTABLISHED BY THE COMMISSION IS NOT THE ' ' UNDERCUTTING OF LIST PRICES ' ' AS SUCH , BUT THE CONCLUSION OF TRANSACTIONS ON DISSIMILAR CONDITIONS WHICH IS THE INEVITABLE CONSEQUENCE OF SUCH UNDERCUTTING . THE ARGUMENT THAT ARTICLE 15 MAKES NO REFERENCE TO UNDERCUTTING AS A SEPARATE INFRINGEMENT THEREFORE SEEMS TO BE DEVOID OF SUBSTANCE .

36 AS REGARDS ARTICLES 36 AND 47 OF THE ECSC TREATY AND ARTICLES 11 AND 14 OF DECISION NO 1836/81 , IT MUST BE POINTED OUT THAT THEY CONFER ON THE COMMISSION POWERS OF INQUIRY AND SUPERVISION WHICH IT MAY EXERCISE , IF IT SEES FIT , IN ORDER TO ESTABLISH THE EXISTENCE OF AN INFRINGEMENT . IT IS REQUIRED TO CARRY OUT FURTHER INQUIRIES OR TO REQUEST ADDITIONAL INFORMATION ONLY IF IT CONSIDERS THAT THE INFORMATION ALREADY AT ITS DISPOSAL IS NOT SUFFICIENT FOR THAT PURPOSE . A BREACH OF THOSE PROVISIONS CANNOT THEREFORE BE ESTABLISHED SEPARATELY FROM THE QUESTION WHETHER THE DECISION IMPOSING THE FINE WAS JUSTIFIED . IF THAT QUESTION IS ANSWERED IN THE AFFIRMATIVE , AS IN THIS CASE , IT FOLLOWS THAT THE ARGUMENTS CONCERNING THE INFRINGEMENT OF THE AFOREMENTIONED ARTICLES MUST AUTOMATICALLY BE REJECTED .

37 FINALLY , THE SUBMISSION CONCERNING THE ALLEGED MISUSE OF POWERS MUST BE REJECTED IN THE LIGHT OF THE CONSIDERATION SET OUT ABOVE IN SO FAR AS IT IS BASED ON THE CONTENTION THAT THE COMMISSION IMPOSED A FINE ON THE APPLICANT FOR INFRINGEMENTS WHICH HAVE NOT BEEN ESTABLISHED .

38 IN SO FAR AS THE SUBMISSION IN QUESTION IS BASED ON THE CONTENTION THAT THE AMOUNT OF THE FINE WAS FIXED AT A VERY HIGH LEVEL FOR THE PURPOSE OF THE GENERAL PREVENTION OF INFRINGEMENTS , IT IS SUFFICIENT TO POINT OUT THAT THE DECISION ITSELF EXPRESSLY STATES THAT : ' ' THE AMOUNT OF THE FINE MUST BE SUFFICIENTLY HIGH TO DETER THE UNDERTAKING FROM UNDERCUTTING ITS LIST PRICES AGAIN . ' '

39 THE IMPOSITION OF A FINE IN ORDER TO PENALIZE AN UNLAWFUL PRACTICE AND TO DETER THE UNDERTAKING CONCERNED FROM REPEATING THE INFRINGEMENT IS IN CONFORMITY WITH COMMUNITY LAW , IRRESPECTIVE OF THE FACT THAT THE PENALTY MAY ALSO ACT AS A GENERAL DETERRENT .

40 IN THOSE CIRCUMSTANCES , IT FOLLOWS THAT CONSIDERATION OF THIS SUBMISSION HAS DISCLOSED NO FACTOR OF SUCH A KIND AS TO ESTABLISH THAT THE COMMISSION WAS GUILTY OF A MISUSE OF POWERS . THIS SUBMISSION MUST THEREFORE BE REJECTED .

41 IN THE ALTERNATIVE , EISEN AG HAS REQUESTED THE COURT TO REDUCE THE AMOUNT OF THE FINE .

42 IN THAT REGARD , IT MUST BE POINTED OUT THAT THE MEASURES ADOPTED FOR THE RATIONALIZATION OF THE STEEL MARKET APPLY FIRST AND FOREMOST TO STEEL PRODUCERS AND THAT THE ROLE OF STEEL DEALERS IN THE RATIONALIZATION OF THAT MARKET , ALBEIT IMPORTANT , IS SECONDARY TO THAT OF PRODUCERS .

43 IN THE CASE OF AN INFRINGEMENT COMMITTED BY A STEEL DEALER , THE MORE LIMITED INFLUENCE WHICH THE LATTER MAY EXERCISE ON THE STATE OF THE MARKET THUS CONSTITUTES A FACTOR MITIGATING THE GRAVITY OF THE INFRINGEMENT .

44 IN THOSE CIRCUMSTANCES , THE IMPOSITION OF A VERY HIGH FINE CAN BE JUSTIFIED ONLY BY THE EXISTENCE OF CIRCUMSTANCES DEMONSTRATING THAT AN INFRINGEMENT COMMITTED BY A STEEL DEALER IS PARTICULARLY SERIOUS , WHICH IT IS FOR THE COMMISSION TO ESTABLISH .

45 REGARD BEING HAD TO THE FACT THAT THE COMMISSION BASED THE IMPOSITION ON EISEN AG OF A FINE EQUAL TO 110% OF THE PRICE REDUCTIONS ON THE SOLE GROUND THAT : ' ' THE AMOUNT OF THE FINE MUST BE SUFFICIENTLY HIGH TO DETER THE UNDERTAKING FROM UNDERCUTTING ITS LIST PRICES AGAIN , ' ' THE CONCLUSION MUST BE DRAWN THAT THE RATE APPLIED IN THIS CASE IS UNJUSTIFIED .

46 HAVING REGARD TO THE CIRCUMSTANCES OF THIS CASE AND TO EISEN AG ' S CONDUCT VIEWED IN ITS ENTIRETY , THE COURT CONSIDERS IT APPROPRIATE TO REDUCE THE AMOUNT OF THE FINE BY ONE HALF TO DM 66 868 .

Decision on costs

COSTS

47 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE APPLICANT HAS BEEN LARGELY UNSUCCESSFUL IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( FOURTH CHAMBER )

HEREBY :

1 . FIXES THE AMOUNT OF THE FINE IMPOSED ON THE APPLICANT AT DM 66 868 ;

2.DISMISSES THE REMAINDER OF THE APPLICATION ;

3.ORDERS THE APPLICANT TO PAY THE COSTS .