OPINION OF ADVOCATE GENERAL

LÉGER

delivered on 28 October 2004

Case C-57/02 P



Compañía Española para la Fabricación de Aceros Inoxidables SA (Acerinox)

v

Commission of the European Communities





Case C-65/02 P



ThyssenKrupp Stainless GmbH, formerly Krupp Thyssen Stainless GmbH

v

Commission of the European Communities





and Case C-73/02 P



ThyssenKrupp Acciai Speciali Terni SpA, formerly Acciai Speciali Terni SpA

v

Commission of the European Communities





(Appeal – Competition – Agreements, decisions and concerted practices – Alloy surcharge – Attribution of responsibility for the infringement – Calculation of the fine – Cooperation during the administrative procedure – Greater reduction of the fine for undertakings which acknowledge the existence of the infringement than for those which did not substantially contest the facts – Validity)

Table of contents

I – The facts of the dispute

II – The actions before the Court of First Instance and the contested judgments

III – Procedure before the Court of Justice and the relief sought

IV – The appeals

A – The first plea: inadequacy of the statement of the reasons on which the contested judgment was based

B – The second plea: misapplication of the concept of ‘concerted practice’

C – The third plea: inadequate statement of the reasons on which the contested judgment was based

D – The fourth plea: errors in the interpretation and application of the rules concerning imposition of fines

E – The fifth plea: errors made in assessing the duration of the infringement

F – The sixth plea: breach of the rights of the defence, of the principle of equal treatment and of the principle of the protection of legitimate expectations

V – The cross-appeal

A – The first plea: distortion of evidence

B – The second plea: breach of the conditions for transfer of the responsibility of the conduct of one undertaking to another

C – The third plea: breach of the requirements relating to the rights of the defence

D – The fourth plea: material inaccuracy of the facts and distortion of evidence

VI – Disposal of the case by the Court of Justice

VII – The action at first instance

VIII – Costs

IX – Conclusion

– Acerinox: ECU 3 530 000

– ALZ NV: ECU 4 540 000

– AST: ECU 4 540 000

– Avesta: ECU 2 810 000

– KTN: ECU 8 100 000

– Usinor: ECU 3 860 000

– errors in the assessment of the duration of the infringement and

– breach of the rights of the defence, of the principle of equal treatment and of the principle of the protection of legitimate expectations.

– incorrect appraisal of its arguments and inadequate statement of the reasons on which the contested judgment was based;

– misapplication of the concept of ‘concerted practice’; and

– defective reasoning of the contested judgment.

‘29 It must be borne in mind that, where there is a dispute as to the existence of an infringement of the competition rules, it is incumbent on the Commission to prove the infringements which it has found and to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement … .

30 However, once it has been established that an undertaking has participated in meetings of a manifestly anti-competitive nature …, it is incumbent on that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs … .

31 In this case, it is not disputed that the applicant participated in the Madrid meeting of 16 December 1993 during which … certain producers of stainless steel flat products agreed to use, from the same date, identical reference values for calculation of the alloy surcharge and, therefore, as to the determination of part of the final price of those products, contrary to Article 65(1) of the ECSC Treaty.

32 It is necessary to consider, however, whether the applicant has satisfactorily established that it distanced itself from that agreement and cannot therefore be accused of infringing Article 65(1) of the ECSC Treaty.

33 As regards … the Spanish market, … the Commission does not dispute that, at that meeting, Acerinox expressed its wish not to apply the alloy surcharge in Spain owing to the economic situation prevailing there.

34 In that connection, paragraph 27 of the Decision [states that] … at the meeting “Acerinox said it did not plan to apply the surcharge in Spain because it considered the measure would not help to increase demand and would not have a positive effect on Spanish industry which was in the depths of a severe crisis”.

35 Since it is therefore common ground that, at the date of the Madrid meeting, the applicant distanced itself from the agreement on the alloy surcharge in so far as it related to the Spanish market, the mere fact that it took part in that meeting is no basis for treating it as a party to an agreement whose object was to fix the reference values for the alloy surcharge on that market, contrary to Article 65(1) of the ECSC Treaty.

36 Since the aim of such an agreement was, at that date, contrary to Acerinox’s interests, in so far as it related to the Spanish market, only proof of a commitment by that undertaking to apply the alloy surcharge on its domestic market would therefore represent adherence by it to an agreement concerning Spain … .

37 It is clear from the file that … Avesta, by fax of 14 January 1994, informed its subsidiaries, including the one in Spain, of the position taken by some of its competitors concerning the date for application of the alloy surcharge on their domestic markets. With regard more specifically to Acerinox, it is stated:

38 The applicant does not contest the truth of the statements attributed to it but confines itself to asserting that that statement shows even more clearly that no agreement or concerted practice existed at the date of the Madrid meeting concerning deferred application of the alloy surcharge in Spain. The fact nevertheless remains that such a statement constitutes evidence of the fact that, on 14 January 1994, Acerinox had in any event expressed its intention to apply an alloy surcharge in Spain in line with the terms agreed by the undertakings concerned at the Madrid meeting and had thus complied with that agreement.

45 It follows that the applicant must be regarded as having participated in the agreement … in so far as that agreement related to the application of the alloy surcharge in Spain, as from its adherence to the agreement, no later than 14 January 1994 … .’

‘29 It must be borne in mind that, where there is a dispute as to the existence of an infringement of the competition rules, it is incumbent on the Commission to prove the infringements which it has found and to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement … .

…

40 As regards [the application of the alloy surcharge in the countries of the European Community other than Spain], the applicant’s arguments … are based on a misapprehension as to the requirements concerning proof laid down by Article 65(1) of the ECSC Treaty.

41 The Court holds that the applicant has not proved that, at the Madrid meeting, it distanced itself from the other participants in the meeting by stating its intention not to apply the alloy surcharge in the countries of the European Community other than Spain. It is clear from the file that, on the contrary, in its statement of 17 December 1996, in response to questions from the Commission, the applicant did not contend that, at the Madrid meeting, it had adopted the same attitude as the one decided upon regarding application of the alloy surcharge in Spain … .

42 Moreover, it is clear from that same statement that the applicant applied an alloy surcharge to its products as from February 1994 in Denmark; then, in March, in Germany, Norway and Sweden; then, in April, in Ireland, Portugal, the United Kingdom and Italy; and, finally, in France and Belgium in May 1994.

43 The applicant’s claim that the alignment of its alloy surcharges with those applied by the other producers operating on those markets derived from mere parallelism of conduct attributable to the oligopolistic structure of the market in stainless steel flat products and to the transparency rules in Article 60 of the ECSC Treaty is unconvincing. Whilst it may follow from the case-law that parallel conduct cannot be regarded as furnishing proof of concertation unless concertation constitutes the only plausible explanation for such conduct …, the fact nevertheless remains, in this case, that the Commission has produced proof of prior concertation between the undertakings concerned, which involved the use and application of identical reference values in the formula for calculating the alloy surcharge.

...

45 It follows that the applicant must be regarded as having participated in the agreement, in so far as it related to the application, in the Member States of the Community other than Spain, of an alloy surcharge calculated on the basis of reference values agreed between undertakings as from 16 December 1993, the date of the Madrid meeting … .’

‘77 It must be borne in mind … that in the Decision the Commission determined the amount of the fines imposed on the undertakings concerned, and particularly on the applicant, by applying the method defined in the Guidelines [on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3, “the Guidelines”)].

78 Under that method, the Commission takes as the starting point a given amount determined by reference to the gravity of the infringement. … In that context, infringements are divided into three categories, namely “minor infringements” …, “serious infringements” …, and “very serious infringements” … .

...

80 Within each of the three abovementioned categories, it may be appropriate in particular cases to apply weightings to the amounts decided on so as to take account of the specific weight and therefore the real impact on competition of the unlawful conduct of each undertaking, especially where there is considerable disparity in the sizes of the undertakings that have committed an infringement of the same nature and to make consequential adjustments to the basic amount depending on the specific characteristics of each undertaking (Section 1 A, sixth paragraph).

81 In this case, the Commission considered, having regard to the gravity of the infringement, that the basic amount of the fines should be set at ECU 4 million for all the undertakings concerned … . [I]n considering whether there was “considerable disparity” between the undertakings involved in the infringement, the Commission considered that all the undertakings were large and that, consequently, it was not necessary to vary the amounts of the fine for the infringement.

...

87 The applicant’s argument that the fines imposed do not take account of the respective strengths of the undertakings concerned on the basis of their market shares must be also rejected.

88 It is true that an undertaking’s market shares may be relevant in order to determine what influence it may exert on the market but they cannot be a decisive factor in concluding that an undertaking belongs to a powerful economic entity … .

89 However, according to settled case-law, the factors on the basis of which the gravity of an infringement may be assessed may, depending on the circumstances, include the volume and value of the goods in respect of which the infringement was committed and the size and economic power of the undertaking … .

90 Accordingly, in this case, the Commission was fully entitled to rely, inter alia, on the size and economic strength of the undertakings concerned, having found them all to be large on the basis that the six undertakings concerned accounted for more than 80% of European production of finished stainless steel products (paragraph 9 of the Decision). In that regard, the comparison drawn by the applicant between its market share of about 11% and those of Ugine, AST and Avesta of about 18%, 15%, and 14% respectively is not such as to disclose any “considerable disparity” between those undertakings, within the meaning of Section 1 A, sixth paragraph, of the Guidelines, such as to render differentiation necessary in the appraisal of the gravity of the infringement.

91 In those circumstances, the amount of the fine imposed on the applicant cannot be regarded as disproportionate … .’

– to imagine all possible circumstances in which, under the Guidelines, the amount of the fine might be weighted in order to take account of the specific weight of each undertaking;

– to imagine all arguments which Acerinox could have put forward to contest the Commission’s decision to refuse to undertake such weighting; and

– to verify the legality of the Commission’s decision in the light of the criteria thus defined.

‘189 According to settled case-law, the anti-competitive conduct of an undertaking can be attributed to its parent company where it has not decided independently upon its own conduct on the market, but has carried out, in all material respects, the instructions given to it by that undertaking, having regard in particular to the economic and legal links between them … .

190 In this case, it must be remembered … that AST was taken over by Krupp and an Italian consortium jointly. Subsequently, in December 1995, Krupp increased its interest in AST from 50% to 75% and then acquired all the shares in AST on 10 May 1996. Those shares were then transferred to KTN, and then to KTS.

191 However, the applicants have not claimed or, a fortiori, proved that, after it was taken over, AST participated in the agreement covered by the Decision on the basis of instructions given by its parent company rather than independently. It must be observed, on the contrary, that they do not deny having acted independently throughout the duration of the agreement.

192 This plea must therefore be rejected.’

‘174 As is clear from the case-law, it is incumbent on the Commission to prove not only the existence of the agreement but also its duration … .

175 In this case, it is therefore appropriate to consider whether the Commission, in finding … that the concertation continued until the date on which the Decision was adopted, discharged the burden of proof attaching to it … .

176 It is important, first, to bear in mind that the purpose of the agreement was to ensure that, in the method for calculating the alloy surcharge, the producers of stainless steel flat products used identical reference values with a view to raising the final price, of which the alloy surcharge constitutes a significant part.

177 As is clear from the Decision, that agreement commenced at the Madrid meeting of 16 December 1993, on which date the participating undertakings decided to apply the alloy surcharge thus calculated as from 1 February 1994. It also found that, as from the latter date, those undertakings, which included KTS and AST, had in fact applied to their sales in Europe, with the exception of Spain and Portugal, an alloy surcharge calculated in accordance with the method based on the reference values agreed at the Madrid meeting. Finally, it observed in paragraph 50 of the Decision that only Avesta had announced, in November 1996, that it would use a different method for calculating the alloy surcharge.

178 It must be observed that the applicants do not deny, and did not deny during the administrative procedure, that the reference values for the alloy surcharge, as agreed at the Madrid meeting, were not changed before the adoption of the Decision. Since the undertakings in question continued actually to apply the reference values on which they had agreed at that meeting, the fact that no express decision was then taken regarding the period for which the agreement would be applied cannot prove that the agreement was sporadic rather than continuous.

…

181 Finally, it is important to bear in mind that, with regard to cartels which are no longer in force, it is sufficient, for Article 85 of the EC Treaty, and by analogy Article 65 of the ECSC Treaty, to be applicable that they continue to produce their effects after they have formally ceased to be in force [Case 51/75 EMI Records [1976] ECR 811, paragraph 15; Case 243/83 Binon [1985] 2015, paragraph 17; Case T-2/89 Petrofina v Commission [1991] II‑1087, paragraph 212; and Case T-327/94 SCA Holding v Commission [1998] ECR II-1373, paragraph 95]. The same applies a fortiori where, as in this case, the effects of the agreement lasted until adoption of the Decision, without the agreement having been formally brought to an end.

182 It follows that, since [KTN, AST and Acerinox] did not cease applying the reference values agreed at the Madrid meeting before the adoption of the Decision, the Commission was entitled to take the view that the infringement had lasted until that date.’

– before a statement of objections is sent, an enterprise provides the Commission with information, documents or other evidence which materially contribute to establishing the existence of the infringement;

– after receiving a statement of objections, an enterprise informs the Commission that it does not substantially contest the facts on which the Commission bases its allegations.’

‘272 Second, in so far as the applicants still claim that the undertakings’ failure to object to the legal characterisation of the facts made by the Commission should not constitute a factor to be relied on for reducing fines, it is necessary to determine whether, as they assert, the reduction made in that respect was contrary to the [Leniency Notice] and infringes the principle of the protection of legitimate expectations and the rights of the defence.

273 In the first place, it must be pointed out that, although Section D(2), of the [Leniency Notice] does in fact refer to a case in which, following the statement of objections, an undertaking informs the Commission that it does not dispute the materiality of the facts on which the Commission bases its accusations, it cannot be interpreted as relating solely to that type of cooperation.

274 The list of the types of cooperation in Section D(2) of the [Leniency Notice] is merely indicative, as is confirmed by the use of the expression “may include”.

275 It must also be remembered that that notice also covers cases in which one of the undertakings concerned has reported a cartel to the Commission, either before the Commission has carried out an investigation (Section B of the notice) or after the Commission has conducted an investigation but has been unable to find a sufficient basis to justify initiating the procedure for the adoption of a decision (Section C of the notice). The fact that the notice thus expressly provides for the possibility of admitting an infringement at that stage of the administrative procedure does not mean that it cannot be admitted at a later stage.

276 Moreover, admission of the existence of a cartel facilitates the Commission’s work in an investigation more than the mere admission of the materiality of the facts.

277 Since the Commission was required to assess the extent of the cooperation shown by the undertakings without infringing the principle of equal treatment, AST therefore had no reason to entertain any legitimate expectation that there would be no differentiation as between undertakings which admitted the facts and those which also admitted the existence of a cartel.

278 Finally, KTN’s argument that the Commission in fact penalised undertakings which availed themselves of their rights of defence cannot be accepted. It has not been alleged that, by reducing the amount of the fines on account of cooperation, the Commission in this case compelled KTN to provide answers whereby it might have had to admit the existence of the infringement … .’

‘55 The rights of the defence on which KT[S] relies are, in this case, safeguarded by the first paragraph of Article 36 of the ECSC Treaty, pursuant to which, before imposing any pecuniary sanction provided for by the Treaty, the Commission must give the party concerned the opportunity to submit its comments.

56 According to settled case-law, respect for the rights of the defence in all proceedings in which sanctions may be imposed is a fundamental principle of Community law which must be observed in all circumstances, even if the proceedings in question are administrative proceedings. The proper observance of that general principle requires that the undertaking concerned be afforded the opportunity, from the stage of the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents relied on by the Commission in support of its allegations. It follows, in particular, that the Commission may rely only on facts on which the parties concerned have had an opportunity to make known their views … .

57 It must also be borne in mind that it falls, in principle, to the legal or natural person managing the undertaking in question when the infringement was committed to answer for that infringement, even if, when the decision finding the infringement was adopted, another person had assumed responsibility for running the undertaking ... .

58 In this case, it is clear from the file, first, that on 24 April 1997, KTN and Thyssen Stahl were each addressees of the statement of objections and that each of those undertakings replied to it separately by letters from their respective representatives on 30 June 1997. In its reply to the statement of objections, KTN also expressly stated that it was submitting its observations “in the name and on behalf of KTN”.

59 Second, it is clear that KTN, which was succeeded by the applicant KTS, agreed by its letter of 23 July 1997 to the Commission to be held liable for conduct imputed to Thyssen Stahl for the period from 1993, even though Thyssen Stahl’s business in the product sector concerned had not been transferred to it until 1 January 1995.

60 In fact, in its abovementioned letter, KTN expressly stated:

“With regard to the abovementioned proceeding [Case IV/35.814 – KTN], you made a request to the legal representative of Thyssen Stahl ... that [KTN] should expressly confirm that it took over liability for any acts done by Thyssen Stahl following the transfer of Thyssen Stahl’s stainless steel flat products business, in so far as the stainless steel flat products at issue in these proceedings are concerned, and this also applies to the period dating back to 1993. We hereby expressly give you that confirmation.”

61 Finally, in paragraph 102 of the Decision, the Commission inferred from that statement that account should be taken of it in the operative part of the Decision. Consequently, the Commission considered KTN to be responsible for those acts of Thyssen Stahl which were regarded as contrary to Article 65(1) of the ECSC Treaty … and therefore imposed on it a fine relating also to the acts imputed to Thyssen Stahl … . In that connection, the Commission expressed the view, in paragraph 78 of the Decision, that the duration of the infringement imputed to Thyssen Stahl extended from December 1993, the date of the Madrid meeting at which the concertation between the producers of stainless steel flat products commenced, to [1] January 1995, the date on which Thyssen Stahl ceased business in that sector.

62 It must be emphasised that it is undisputed that, in view of the statement made by KTN on 23 July 1997, the Commission was, by way of exception, entitled to impute to KTN liability for the unlawful conduct of which Thyssen Stahl was accused between December 1993 and 1 January 1995 … .

63 However, in so far as it constitutes an exception to the principle that a natural or legal person may be penalised only for acts imputed to it individually, such a statement must be interpreted strictly. In particular, unless he gives some indication to the contrary, the person making such a statement cannot be presumed to have waived the right to exercise his rights of defence.

64 However, contrary to what, in essence, the Commission contends, KTN’s statement of 23 July 1997 could not be interpreted as implying, in addition, a waiver of its right to be heard regarding the acts imputed to Thyssen Stahl in the statement of objections notified to Thyssen Stahl on 24 April 1997, for which KTN agreed from that time to be held responsible for the purposes of the imposition of any fine.

65 That is particularly true since the statement of objections was sent separately to KTN and Thyssen Stahl and, quite clearly, that statement did not attribute to KTN liability for the acts alleged against Thyssen Stahl.

66 It must therefore be held in this case that the Commission did not give KTN an opportunity to submit its comments on the reality and relevance of the acts imputed to Thyssen Stahl and that, consequently, KTN was not able to exercise its rights of defence in that connection.

67 Accordingly, as is clear from the case-law, the Commission was not entitled to attribute liability for the acts of Thyssen Stahl to KTN or, consequently, to impose a fine on KTN in respect of the acts attributed to Thyssen Stahl when, on that point, the statement of objections was addressed only to the latter … .

68 In view of the foregoing, KTN’s plea must be declared well founded and therefore Article 1 of the Decision must be annulled to the extent to which it imputes to KTN the infringement of which Thyssen Stahl was accused.’

– distortion of evidence;

– non-observance of the conditions for transferring responsibility for anti-competitive conduct from one undertaking to another;

– breach of the requirements concerning rights of defence; and

– material inaccuracy of the facts and distortion of evidence.

– Ugine have announced surcharges effective from 1 February 1994, of 430 GBP 4.36, 304 GBP 47.55, 316 GBP 74.03;

– Acerinox have announced surcharges will apply from 1 April 1994 (yes April!);

– Outokumpu are thought to be following this line but no confirmation yet;

– Thyssen expect to announce something next Monday;

– Krupp – we have no current information;

– ILVA have announced a base price change effective from February but applicable to stockists and not end-users;

– ALZ are still considering their position.’

(1) annuls the judgment of the Court of First Instance of the European Communities of 13 December 2001 in Case T-48/98 Acerinox v Commission to the extent to which it rejects the applicant’s plea that it did not participate in the cartel in the Spanish market;

(2) for the rest, dismisses the appeals;

(3) dismisses the application for annulment brought by Compañía Española para la Fabricación de Aceros Inoxidables SA (Acerinox);

(4) orders Compañía Española para la Fabricación de Aceros Inoxidables SA (Acerinox), ThyssenKrupp Stainless GmbH and ThyssenKrupp Acciai Speciali Terni SpA to bear the costs incurred by them in the appeals and the costs of the Commission of the European Communities in these proceedings;

(5) orders Compañía Española para la Fabricación de Aceros Inoxidables SA (Acerinox) to bear the costs incurred by it in the proceedings at first instance and two thirds of the Commission’s costs in those proceedings, and orders the Commission to bear one third of its own costs in those proceedings.

– Original language: French.

– Joined Cases T-45/98 and T-47/98 Krupp Thyssen Stainless and Acciai Speciali Terni v Commission [2001] ECR II-3757, also referred to as ‘the contested judgment’ or ‘the KTS and AST v Commission judgment’, and Case T-48/98 Compañía Española para la Fabricación de Aceros Inoxidables (Acerinox) v Commission [2001] ECR II‑3859, also referred to as ‘the contested judgment’ or ‘the Acerinox v Commission judgment’.

– OJ 1998 L 100, p. 55 (‘the contested decision’ or ‘the Decision’).

– Case C-197/99 P [2003] ECR I-8461, points 65 to 68 of my Opinion.

– See, to that effect, Case C-259/96 P Council v De Nil and Impens [1998] ECR I‑2915, paragraphs 32 to 34; Case C-449/98 P IECC v Commission [2001] ECR I‑3875, paragraph 70; and the orders of 19 July 1995 in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I-2165, paragraph 58, of 14 October 1996 in Case C-268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 52, and of 25 June 1998 in Case C‑159/98 P(R) Netherlands Antilles v Council [1998] ECR I-4147, paragraph 70.

– Case C-298/93 P Klinke v Court ofJustice [1994] ECR I-3009, paragraphs 21 to 25.

– Ibid. (paragraphs 19 and 20).

– Application lodged by Acerinox in Case T-48/98 (p. 9). See also the reply lodged by Acerinox in that case (point 10).

– See points 203 to 209 of this Opinion.

– See, to that effect, Case C-196/99 P Aristrain v Commission [2003] ECR I-0000, paragraph 102.

– See, in particular, Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraphs 118 and 119, and Case C-199/92 P Hüls v Commission [1999] ECR I-4287, paragraph 161.

– .Commission v Anic Partecipazioni, paragraph 119.

– .Commission v Anic Partecipazioni, paragraph 121, and Hüls v Commission, paragraph 162.

– .Hüls v Commission, paragraphs 149, 150 and 168.

– Ibid., paragraphs 167 and 168.

– See Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T‑46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T‑104/95 CimenteriesCBR and Others v Commission [2000] ECR II-491, paragraphs 1865, 1910 and 1938.

– See point 32 of this Opinion.

– Case C-274/99 P [2001] ECR I‑1611.

– .Connolly v Commission, paragraph 120.

– .Connolly v Commission, paragraph 121, and Belgium v Commission, paragraph 81.

– Idem.

– Acerinox’s appeal, paragraph 46.

– It will be noted that the legality of the Guidelines has been challenged in Joined Cases C‑189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission, pending before the Court, in which Advocate General Tizzano delivered his Opinion on 8 July 2004.

– Acerinox’s application in Case T-48/98 (p. 19).

– Case T-354/94 [1998] ECR II-2111, paragraphs 82 and 83.

– See, in that connection, points 154 to 156 of this Opinion.

– Case 170/83 Hydrotherm [1984] ECR 2999, paragraph 11.

– Case 48/69 ICI v Commission [1972] ECR 619, paragraph 133. See also Case 15/74 Sterling Drug [1974] ECR 1147, paragraph 41; Case 16/74 Winthrop [1974] ECR 1183, paragraph 32; Case 30/87 Bodson [1988] ECR 2479, paragraph 19; Case 66/86 Ahmed Saeed Flugreisen and Silver Line Reisebüro [1989] ECR 803, paragraph 35; and Case C-73/95 P Viho v Commission [1996] ECR I-5457, paragraph 16.

– Case C-286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I-9925, paragraph 39.

– Case C-294/98 P Metsä-Serla and Others v Commission [2000] ECR I‑10065, paragraph 27. See also ICI v Commission, paragraphs 132 and 133; Case 107/82 AEG v Commission [1983] ECR 3151, paragraph 49; Case C-310/93 P BPBIndustriesandBritish Gypsum v Commission [1995] ECR I-865, paragraph 11, and also my Opinion in that case, points 20 to 31; Case C‑279/98 P Cascades v Commission [2000] ECR I‑9693, paragraph 77, and also Advocate General Mischo’s Opinion in that case, point 59; and Aristrain v Commission, paragraph 96.

– Case C-248/98 P [2000] ECR I‑9641, paragraphs 71 to 74.

– Ibid., paragraph 73, fourth subparagraph.

– Regarding this discretion, see, in particular, Case T-150/89 Martinelli v Commission [1995] ECR II‑1165, paragraph 59; Case T-49/95 Van Megen Sports v Commission [1996] ECR II‑1799, paragraph 53; Case T-229/94 Deutsche Bahn v Commission [1997] ECR II‑1689, paragraph 127; and Case T-224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] ECR II-2597, paragraph 55.

– .KTS and AST v Commission judgment. See also the Acerinox v Commission judgment, paragraphs 55 to 66.

– See AST’s appeal (paragraphs 12 and 14 to 17) and KTS’s appeal (paragraphs 11, 12, 16, 17 and 19).

– See the recent examples of Case C-122/01 T. Port v Commission [2003] ECR I‑4261, paragraph 27, and the order of 9 July 2004 in Case C-116/03 Fichtner v Commission, not published in the ECR, paragraph 33.

– .KTSandAST v Commission judgment, paragraph 177, and Acerinox v Commission judgment, paragraph 57.

– .KTSandAST v Commission judgment, paragraph 178, and Acerinox v Commission judgment, paragraph 60.

– It will be remembered that, according to settled case-law, the Court of Justice rejects from the outset complaints which are directed against grounds put forward on a subsidiary basis or for the sake of completeness by the Court of First Instance. The Court of Justice considers that, provided that the operative part of the Court of First Instance’s judgment is based on other grounds put forward as part of the main reasoning, such complaints cannot lead to the contested judgment being set aside and accordingly cannot be accepted (for a recent example, see T. Port v Commission, paragraphs 16, 17 and 30 to 33, and my Opinion in that case, point 23).

– See, in particular, Case 67/84 Sideradria v Commission [1985] ECR 3983, paragraph 21; Case C-96/89 Commission v Netherlands [1991] ECR I-2461, paragraph 30; Joined Cases T-551/93 and T-231/94 to T-234/94 Industrias Pesqueras Campos and Others v Commission [1996] ECR II-247, paragraph 76; Case T-126/97 Sonasa v Commission [1999] ECR II-2793, paragraph 34; Case T-199/99 Sgaravatti Mediterranea v Commission [2002] ECR II-3731, paragraph 111; Case T-125/01 José Marti Peix v Commission [2003] ECR II‑865, paragraph 107; and Case T‑217/01 Forum des migrants v Commission [2003] ECR II-1563, paragraph 76.

– . – Acerinox’s appeal, paragraph 43.

– OJ 1996 C 207, p. 4.

– Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).

– .KTS and AST v Commission judgment, paragraphs 260 to 268, and Acerinox v Commission judgment, paragraph 147.

– .KTS and AST v Commission judgment. See also Acerinox v Commission judgment, paragraphs 145 to 150.

– Case 374/87 [1989] ECR 3283 (‘Orkem’ or ‘the Orkem judgment’).

– In its appeal, KTS also argues, on a subsidiary basis, that the scope of its statements in the course of the administrative procedure was misconstrued. It contends that, contrary to the finding of the Court of First Instance, it expressly acknowledged the existence of the cartel during the administrative procedure, and therefore the Court of First Instance should have granted it the same reduction of the fine as that allowed to Usinor. In my view, that argument is manifestly inadmissible. In paragraphs 262 to 267 of the KTS and AST v Commission judgment, the Court of First Instance found, on the basis of information in the file, that KTS had not acknowledged the existence of the cartel during the administrative procedure. Since KTS has not shown, or even contended, that the Court of First Instance distorted the evidence on this point, the Court of First Instance’s conclusion that KTS contested the existence of the cartel constitutes an appraisal of evidence which cannot be called in question in the context of the present appeals.

– Case C-298/98 P [2000] ECR I-10157, paragraph 58.

– Case T-311/94 [1998] ECR II‑1129, paragraphs 323 and 324.

– See also the Opinion of Advocate General Mischo in Finnboard v Commission, points 22 to 27.

– Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 275.

– OJ, English Special Edition, 1959-1962, p. 87.

– Joined Cases T-305/94 to T-307/94, T-313/94 to T-316/94, T-318/94, T‑325/94, T-328/94, T‑329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II‑931, paragraphs 455 to 457, confirmed by the Court of Justice in Limburgse Vinyl Maatschappij and Others v Commission, paragraph 279.

– See, in particular, Orkem, paragraphs 34 and 35, and the Court of Justice judgment in Limburgse Vinyl Maatschappij and Others v Commission, paragraph 279, and Case T‑112/98 Mannesmannröhren-Werke v Commission [2001] ECR II‑729, paragraph 67 et seq.

– See judgments of the European Court of Human Rights, in the case of Funke, 25 February 1993 (Series A No 256 A, § 44); Saunders v. United Kingdom, 17 December 1996 (Reports of Judgments and Decisions 1996-VI, p. 2044, §§ 68 to 76); and J.B. v. Switzerland, 3 May 2001 (Reports of Judgments and Decisions 2001-III, p. 436, §§ 65 and 66).

– European Court of Human Rights, Murray v. United Kingdom, 8 February 1996 (Reports of Judgments and Decisions 1996-I, p. 30, § 50).

– See also, to that effect, W. Wils, ‘The Commission notice on the non-imposition or reduction of fines in cartel cases: a legal and economic analysis’, E. L. Rev., 1997, pp. 125 to 140 (at p. 137).

– .Finnboard v Commission, paragraph 58, and the Opinion of Advocate General Mischo in that case, point 24.

– .BPB De Eendracht v Commission, paragraph 323, and Case T-347/94 Mayr-Melnhof v Commission [1998] ECR II‑1751, paragraph 308.

– See, in particular, Case 106/83 Sermide [1984] ECR 4209, paragraph 28, and Case C-174/89 Hoche [1990] ECR I‑2681, paragraph 25.

– See BPB de Eendracht v Commission, paragraph 325; Case T-338/94 Finnboard v Commission [1998] ECR II-1617, paragraph 363, upheld on appeal by the Court of Justice in Finnboard v Commission, and Mayr-Melnhof v Commission, paragraph 330.

– See the Opinion of Advocate General Mischo in Finnboard v Commission, point 13.

– Judgment of the Court of First Instance in Finnboard v Commission, paragraphs 364 and 365, and judgment of the Court of Justice in Finnboard v Commission, paragraph 58.

– See, in particular, Case C-283/90 P Vidrányi v Commission [1991] ECR I‑4339, paragraph 12, and Case C-53/92 P Hilti v Commission [1994] ECR I‑667, paragraph 10.

– Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I‑1981, paragraph 49, and Case C-265/97 P VBA v Florimex and Others [2000] ECR I‑2061, paragraph 139; orders of 16 September 1997 in Case C-59/96 P Koelman v Commission [1997] ECR I‑4809, paragraph 33, and of 6 October 1997 in Case C‑55/97 P AIUFFASSandAKT v Commission [1997] ECR I‑5383, paragraph 24.

– Case C-8/95 P New Holland Ford v Commission [1998] ECR I‑3175, paragraph 72; VBA v Florimex and Others, paragraph 139; and order of 27 January 2000 in Case C-341/98 P Proderec v Commission, not published in the ECR, paragraph 27.

– See, in particular, Commission v Brazzelli Lualdi and Others, paragraph 66; Case C‑401/96 P Somaco v Commission [1998] ECR I-2587, paragraph 54; and Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 24.

– .Hilti v Commission, paragraph 42; Case C‑362/95 P Blackspur DIY and Others v Council and Commission [1997] ECR I‑4775, paragraph 29; New Holland Ford v Commission, paragraph 26; Baustahlgewebe v Commission, paragraph 24; Case C-257/98 P Lucaccioni v Commission [1999] ECR I-5251, paragraphs 45 to 47; and the orders in AIUFFASS and AKT v Commission, paragraph 25, Case C-140/96 P Dimitriadis v Court of Auditors [1997] ECR I-5635, paragraph 35, and Proderec v Commission, paragraph 28.

– For a case of distortion of the contested measure, see Case C-164/98 P DIR International Film and Others v Commission [2000] ECR I‑447, paragraphs 47 and 48, and Case C-197/99 P Belgium v Commission [2003] ECR I-8461, paragraph 67.

– See, in a case of distortion of the contested measure, the order of 11 April 2001 in Case C‑459/00 P(R) Commission v Trenker [2001] ECR I‑2823, paragraph 71.

– See, in a case of distortion of the contested measure, Case C-277/01 P Parliament v Samper [2003] ECR I‑3019, paragraph 40.

– Reply to the cross-appeal, paragraph 3.

– KTS’s application in Case T-45/98, Annex 6.

– Ibid., Annex 7.

– Ibid., Annex 8.

– Ibid., Annex 9.

– Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 [1975] ECR 1663, paragraphs 77 to 84.

– Joined Cases 29/83 and 30/83 [1984] ECR 1679, paragraphs 6 to 9.

– Case T‑6/89 [1991] ECR II‑1623, paragraph 235.

– Case T-134/94 [1999] ECR II‑239, paragraphs 135 to 138.

– See, in particular, Cascades v Commission, paragraph 78; Case C-286/98 P Stora Kopparbergs Bergslags v Commission, paragraph 37; and Case C-297/98 P SCA Holding v Commission [2000] I‑10101, paragraph 27.

– See Commission v Anic Partecipazioni, paragraph 145; Case C-286/98 P Stora Kopparbergs Bergslags v Commission, paragraph 38, and Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v Commission [2004] ECR I-0000, paragraph 359.

– See the information given by KTS in its reply to the cross-appeal (paragraph 35), which has not been disputed by the Commission.

– Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 9.

– See, to that effect, Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 26; Case C-62/86 AKZO v Commission [1991] ECR I-3359, paragraph 29; and Joined Cases C‑89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C‑125/85 to C-129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I-1307, paragraph 135.

– Joined Cases C-395/96 P and C-396/96 P [2000] ECR I-1365, paragraphs 143 and 146.

– Case C-176/99 P [2003] ECR I-0000, paragraph 21.

– Annex 4 to the letter addressed by KTS on 10 March 1998 to the Registry of the Court of First Instance in Case T-45/98 (paragraph 11 F – free translation).

– Commission’s response (paragraph 55).

– In paragraphs 94 to 102 of its response, it analyses judgments which, by its own admission (see response, paragraph 54), concern a different complaint, namely the third plea concerning the requirements relating to rights of the defence.

– See point 161 of this Opinion.

– See point 162 of this Opinion.

– See, in particular, KTN’s response to the first statement of objections; KTN’s response to the second statement of objections; the record of access to the file on 28 May 1997; and KTN’s statement of 23 July 1997 (respectively Annexes 6, 7, 8 and 9 of KTN’s application in Case T‑45/98).

– See points 27 to 39 of this Opinion.

– Acerinox’s application in Case T-48/98 (p. 9).

– Idem.

– See, in particular, Baustahlgewebe v Commission, paragraph 58.

– .CimenteriesCBR and Others v Commission, paragraph 1838.

– See, in particular, Suiker Unie and Others, paragraph 164, and Case T-56/99 Marlines v Commission [2003] ECR I-0000, paragraph 46.

– See, in particular, Case T-100/92 La Pietra v Commission [1994] ECR-SC I-A-83 and II‑275, paragraph 37.

– See, in particular, Joined Cases T-5/00 and T-6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2003] ECR II-0000, paragraph 174.

– Opinion of Judge Vesterdorf acting as Advocate General in Case T-1/89 Rhône-Poulenc v Commission [1991] ECR II‑867, at II‑956, and Cimenteries CBRand Others v Commission, paragraphs 1838 and 3172.

– See Cimenteries CBRand Others v Commission, paragraphs 1346 to 1349, and, for the opposite case, Case T-65/02 Chetaud v Parliament of 8 July 2003, not published in the ECR, paragraph 48 et seq.

– The name of this person was held back in the contested decision (recital 21) and therefore it will not be disclosed in this Opinion.