2007/486/EC: Commission Decision of 20 December 2006 relating to a proceeding under Article 65 of the Treaty establishing the European Coal and Steal Community (Case No COMP/F/39.234 — Alloy surcharge — readoption) (notified under document number C(2006) 6765)
Date: 2006-12-20
Institutions: European Commission
Subjects: ECSC Treaty, fine, fixing of prices, infringement of EU law, iron and steel industry, restriction on competition, sanction (EU), steel

12.7.2007

EN

Official Journal of the European Union

L 182/31

COMMISSION

COMMISSION DECISION

of 20 December 2006

relating to a proceeding under Article 65 of the Treaty establishing the European Coal and Steal
Community
(Case No COMP/F/39.234 — Alloy surcharge — readoption)

(notified under document number C(2006) 6765)

(Only the German version is authentic)

(2007/486/EC)

On 20 December 2006 the Commission adopted a decision relating to a proceeding under Article 65
of the ECSC Treaty. In accordance with the provisions of Article 30 of Council Regulation (EC) No
1/2003 (1), the Commission herewith publishes the names of the parties and the main content of the
decision, including the penalty imposed, having regard to the legitimate interest of undertakings in the
protection of their business interests. The full text of the decision, reduced by those passages for which
the company may legitimately claim confidentiality, can be found on the Competition DG's web-site at
http://europa.eu.int/comm/competition/index_en.html in the authentic language of the case.

ADDRESSEE, OFFENDER AND INFRINGEMENT

The decision is addressed to TKS (ThyssenKrupp Stainless
AG) for the behaviour of TS-AG (Thyssen Stahl AG). TKS
voluntarily took over the liability for TS-AG’s conduct, at
least for the years 1993/1994, by an explicit statement
to the Commission on 23 July 1997.

Commission fined TKS in 1998 for the behaviour of TS-
AG without having given it the possibility to comment
on this behaviour prior to the imposition of a fine. This
infringed the right to be heard for TKS.

it
TS-AG participated from 16 December 1993, until
ceased to be economically active in the stainless steel
sector on 31 December 1994, in a single and continuous
infringement contrary to Article 65 of the ECSC Treaty
by fixing prices for alloys used in the stainless steel sector
in Western Europe.

PROCEDURE

The decision concerns the readoption of Commission
Decision 98/247/CECA of 21 January 1998 (2). This
decision was partly annulled by the Courts (3) on
the
procedural

grounds. The Courts

found

that

(1) OJ L 1, 4.1.2003, p. 1.
(2) Case IV.35.814, Alloy Surcharge (OJ L 100, 1.4.1998, p. 55.)
(3) T-45/98 and T-47/98, 13.12.2001, Krupp Thyssen Stainless GmbH
und Acciai Terni SpA/Commission, ECR 2001, II-3757 and C-65/02
P and C-73/02 P, 14.7.2005, ThyssenKrupp Stainless GmbH und
ThyssenKrupp Acciai speciali Terni SpA/Commission.

(4)

On 24 April 2006 the Commission issued a Statement of
Objections to TKS with the aim to correct the procedural
error as mentioned by the Courts.

(5)

(6)

FUNCTIONING OF THE CARTEL

The alloy surcharge is a price element which was
calculated on the basis of the prices of alloys and was
added to the basic price for stainless steel. The cost of the
alloys used by stainless steel producers (nickel, chromium
and molybdenum) formed a very large proportion of the
total production costs. The prices for these alloys were
extremely volatile.

started to rise

The prices for alloys and stainless steel fell sharply in
1993. When the nickel prices
in
September 1993, producers’ profits were considerably
reduced. To remedy this, the producers of stainless flat
products agreed to hold a meeting in Madrid on 16
December 1993. Subsequently a number of contacts
took place between the producers regarding the calcu-
lation and implementation of the alloy surcharge.

(1)

(2)

(3)

L 182/32

EN

Official Journal of the European Union

12.7.2007

(7)

(8)

(9)

The decision found that TS-AG together with other
undertakings modified and applied in a
concerted
fashion the reference value used to calculate the alloy
surcharge. This has both the object and effect of
the
restricting
common market.

competition within

distorting

and

APPLICATION OF THE ECSC TREATY

The Commission considers that the substantive rules of
the ECSC Treaty are to be applied to the cartel infrin-
gement given that the ECSC Treaty was in force at the
time of the infringement (1993/1994). There was no
indication to apply the lex mitior principle.

THE LIABILITY OF TKS FOR TS-AG

The decision holds TKS liable for the behaviour of TS-AG
in view of TKS’ statement of 23 July 1997 and clarifies
that it does not invoke the concepts of legal or economic
succession.

(10)

The statement of 1997 has not been called into question
in the ECJ’s judgement nor would such a statement be
contrary to general principles of law or the Commission’s
decisional practice.

LIMITATION PERIOD

(11)

The decision concludes that there is no prescription of
the limitation period given the suspension during the
Court proceedings.

FINES

Basic Amount

Gravity

(12)

In order to guarantee non-discrimination between the
addressees of Commission Decision 98/247/CECA, the
is considered to be of a serious nature
infringement
(starting amount EUR 4 million).

Duration

(13)

The starting amount is increased by 10 % as the infrin-
gement was committed during more than one year (from
16 December 1993 to 31 December 1994).

Attenuating circumstances

(14)

In line with Commission Decision 98/247/CECA the
starting amount
is decreased by 10 % because the
economic situation of the sector was critical.

Application of the 1996 Leniency Notice

(15)

In application of the 1996 Notice on immunity from
fines and reduction of fines in cartel cases and in the
light of the judgment of the CFI (1), the fine is further
reduced by 20 % given the participation of TKS to help
the Commission in establishing the facts. Therefore, the
fine is EUR 3 168 000.

(1) Para 281 of T-45/98 and T-47/98, 13.12.2001, Krupp Thyssen
Stainless GmbH und Acciai Terni SpA/Commission, ECR 2001,
II-3757.