Keywords

Summary



Keywords

1 ECSC - Agreements, decisions and concerted practices - Administrative proceedings - Rules governing languages - Annexes to the statement of objections - Statements in the minutes of the hearing - To be available in the original language

2 Accession of new Member States - Spain - Safeguard measures - Derogations from the rules of the ECSC Treaty - Discretion of the Commission - No derogation - Applicability of Article 65(1) of the Treaty

(ECSC Treaty, Art. 65(1); Act of Accession of Spain, Art. 379)

3 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Calculation methods - Conversion into ecus of the undertakings' reference year turnover figures on the basis of the average exchange rate for that year - Whether permissible

(ECSC Treaty, Art. 65(5))

4 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Gravity of the infringements - Mitigating circumstances - Cessation of the infringement following the Commission's intervention - Not included

(ECSC Treaty, Art. 65(5))

5 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.)

Summary

1 In the context of the administrative proceeding culminating in the adoption of a decision finding that the ECSC competition rules have been infringed, the Commission cannot be required to translate more documents than those on which it bases its objections. These documents must also be regarded as incriminating documents on which the Commission relies and, accordingly, must be brought as such to the addressee's attention in such a way that the addressee is apprised of the interpretation which the Commission has put on them - and on which it has based both the statement of objections and the decision - and, consequently, is able properly to defend its rights.

The Commission's obligation to send to the parties a copy of the minutes of the hearing, so that they can check whether their own statements have been properly recorded, in no way obliges it to translate the statements made by the other parties in other languages.

27 Clearly, the mere possibility that protective measures may be adopted pursuant to Article 379 of the Act of Accession of Spain, which applies to all sectors of the economy and involves the exercise by the Commission, acting upon application by a Member State, of a wide discretion, cannot justify an undertaking's participation in agreements and concerted practices prohibited by Article 65(1) of the ECSC Treaty. The possibility of authorised derogation, in certain defined circumstances, from the normal rules on the functioning of the common market is the responsibility of the Commission alone and does not dispense undertakings from the obligation to comply with the Treaty competition rules in all other circumstances.

3 When the Commission imposes fines on several undertakings for infringements of the ECSC competition rules, there is nothing to prevent it from expressing the amount in ecus, a monetary unity convertible into national currency. That also makes it easier for the undertakings to compare the amounts of the fines imposed.

In calculating the fine, the Commission may convert into ecus the turnover figure of each undertaking for the reference year, that is to say, the last complete year of the period of infringement found, on the basis of the average exchange rate for that year.

First of all, the Commission should ordinarily use one and the same method of calculating the fines imposed on the undertakings penalised for having participated in the same infringement. Second, in order to be able to compare the different turnover figures sent to it, which are expressed in the respective national currencies of the undertakings concerned, the Commission must convert those figures into a single monetary unit, such as the ecu, the value of which is determined on the basis of each national currency of the Member States.

Moreover, the taking into account of the turnover achieved by each undertaking during the reference year enables the Commission to assess the size and economic power of each undertaking and the scale of the infringement committed by each of them, those aspects being relevant for an assessment of the gravity of the infringement committed by each undertaking. Also, taking into account, in order to convert the turnover figures in question into ecus, the average exchange rates for the reference year adopted enables the Commission to prevent any monetary fluctuations occurring after the cessation of the infringement from affecting the assessment of the undertakings' relative size and economic power and the scale of the infringement committed by each of them and, accordingly, its assessment of the gravity of that infringement. That assessment must have regard to the economic reality as revealed at the time when the infringement was committed.

The method of calculating the fine by using the average rate of exchange for the reference year makes it possible to avoid the uncertain effects of changes in the real value of the national currencies which may arise between the reference year and the year in which the decision was adopted. Although this method may mean that a given undertaking must pay an amount, expressed in national currency, which is in nominal terms greater or less than that which it would have had to pay if the rate of exchange at the date of the decision's adoption had been applied, that is merely the logical consequence of fluctuations in the real values of the various national currencies.

4 The fact that a deliberate infringement of the competition rules has been brought to an end cannot be regarded as a mitigating circumstance where it was terminated as a result of the Commission's intervention.

5 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 exercise. 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.