CELEX: C1999/299/03
Language: en
Date: 1999-10-16 00:00:00
Title: Case C-182/99 P: Appeal brought on 18 May 1999 by Salzgitter AG, a company established under German law, formerly trading as Preussag Stahl AG, against the judgment delivered on 11 March 1999 by the Court of First Instance of the European Communities (Second Chamber, Extended Composition) in Case T-148/94 Preussag AG v Commission of the European Communities

16.10.1999             EN                   Official Journal of the European Communities                                        C 299/3
Appeal brought on 18 May 1999 by Salzgitter AG, a                      Pleas in law and main arguments
company established under German law, formerly trading
as Preussag Stahl AG, against the judgment delivered on
11 March 1999 by the Court of First Instance of the                    — Defective composition of the Chamber when the judgment
European Communities (Second Chamber, Extended                             was delivered (infringement of Article 46, in conjunction
Composition) in Case T-148/94 Preussag AG v Com-                           with Article 31, of the ECSC Statute of the Court of Justice,
           mission of the European Communities                             and infringement of Articles 32(1) and (3), 33(3) and (5)
                                                                           and 82(2) of the Rules of Procedure of the Court of First
                                                                           Instance): a judge is not prevented from attending in the
                      (Case C-182/99 P) (*)                                case where, without compelling reasons, the deliberations
                                                                           are so concluded after final discussion that one or more
                                                                           judges art prevented because their term of office has
                        (1999/C 299/03)                                    expired. Influencing the composition of the Chamber by
                                                                           drawing out the deliberations, once they have begun,
                                                                           would also infringe the guarantee that decisions should be
An appeal has been brought before the Court of Justice of the              delivered by a properly constituted Court. In the present
European Communities on 18 May 1999 by Salzgitter AG, a                    case, a period of five months and twenty days elapsed
company established under German law, formerly trading as                  between the conclusion of the oral procedure and the end
Preussag Stahl AG, represented by Horst Satzky, of Hengeler                of the period of office of the President of the Chamber and
Mueller Weitzel Wirtz, Bockenheimer Landstraße 51, D-60325                 of another judge. There is no obvious reason why such a
Frankfurt am Main, and Constantin Frick, Marktstraße 3 -                   period would not have sufficed to conduct and conclude
Börsenhof C, D-28195 Bremen, with an address for service at                the deliberations. If there had been, between the conclusion
the Chambers of Patrick Weinacht, of Faltz & Kremer, 6 Rue                 of the oral procedure and the end of the period of office of
Heinrich Heine, L-1720 Luxembourg, against the judgment                    one of the departing judges, any reason in respect of a
delivered on 11 March 1999 by the Court of First Instance                  judge belonging to the Chamber which prevented the
of the European Communities (Second Chamber, Extended                      deliberations from being conducted, Article 32(1) ought to
Composition) in Case T-148/94 Preussag AG v Commission                     have been applied. Postponement of judgment to a period
of the European Communities.                                               following the end of the period of office of the President
                                                                           of the Chamber and of another judge therefore resulted in
                                                                           a composition of the Chamber which differed from that in
The appellant claims that the Court should:                                which the Chamber ought to have given a decision in the
                                                                           dispute by 17 September 1998. Since it is not clear
                                                                           from the contested judgment whether it was adopted
1. Set aside the judgment delivered on 11 March 1999 by the                unanimously, it must be assumed that the judgment might
    Court of First Instance of the European Communities in                 have been different had the Chamber been differently
    Case T-148/94 Preussag Stahl AG v Commission of the                    composed.
    European Communities in so far as that judgment dismis-
    sed the action brought by Preussag Stahl AG against
    Commission Decision C(94)321 final of 16 February 1994             — Impermissible failure to examine evidence (infringement
    relating to a proceeding pursuant to Article 65 of the ECSC            of Article 24 of the ECSC Statute of the Court of Justice in
    Treaty;                                                                conjunction with Article 65 of the Rules of Procedure of
                                                                           the Court of First Instance): the principle that the facts
                                                                           should be fully clarified required examination of the
2. Set aside or annul Articles 1, 3 and 4 of Commission                    evidence submitted by the applicants in order to ascertain,
    Decision C(94)321 final of 16 February 1994 relating to a              on the basis of the complete minutes to be produced in
    proceeding pursuant to Article 65 of the ECSC Treaty in                the original, whether it provided the proof that the decision
    so far as those articles were confirmed by the contested               under challenge had been validly adopted.
    judgment;
3. Order the Commission to pay the costs of the proceedings            — Legally defective determination by the Court as to the
    before the Court of First Instance and those of the present            proper drafting and content of the decision: on the basis
    appeal;                                                                of unchecked submissions made by the defendant’s agents,
                                                                           the Court concluded that the content of the decision was
                                                                           evident from a document kept in physical proximity to the
    in the alternative,                                                    minutes. However, in the absence of proper minutes, the
                                                                           content of the Community deliberations is uncertain. Nor
                                                                           is it clear from the photocopies of the minutes submitted
    reduce the amount of the fine imposed on Preussag Stahl                whether the requisite quorum was achieved when the
    AG in Article 4 of Commission Decision C(94)321, which                 College of Members of the Commission adopted the
    the Court of First Instance fixed at EUR 8 600 000                     decision.
    in paragraph 2 of the operative part of the contested
    judgment;
                                                                       — Infringement of Article 65 of the ECSC Treaty in regard to
    in the further alternative,                                            the concept of normal competition: from the fact that, as
                                                                           even Directorate-General III accepted, some exchange of
                                                                           information between undertakings in the steel industry
    refer the case back to the Court of First Instance of the              was necessary to enable the Commission to fulfil its duties
    European Communities.                                                  under the ECSC Treaty, the Court ought to have concluded
 ---pagebreak--- C 299/4                 EN                   Official Journal of the European Communities                                      16.10.1999
     that the ‘normal competition’ protected by Article 65(1) of        2. Annul Articles 1, 3 and 4 of Commission Decision
     the ECSC Treaty cannot be the same competition as that                 C(94)321 final of 16 February 1994 relating to a proceed-
     protected by Article 85(1) of the EC Treaty. It was for that           ing pursuant to Article 65 of the ECSC Treaty concerning
     reason wrong in law simply to classify every exchange of               agreements and concerted practices engaged in by Euro-
     information as a restriction of competition prohibited                 pean producers of beams, in so far as those articles have
     under Article 65(1) of the ECSC Treaty.                                not already been annulled by the judgment of the Court of
                                                                            First Instance of 11 March 1999 in Case T-141/94;
— Infringement of Article 65 of the ECSC Treaty in regard to
     the assessment of the information exchange: the assess-            3. Order the Commission to pay the costs of the proceedings
     ment of the information exchange as a separate constituent             at first instance and those of the present appeal.
     feature of conduct in restraint of competition for the
     purposes of Article 65 of the ECSC Treaty constituted a
     misconstruction of that article. Under Article 65 of the
                                                                        Pleas in law and main arguments
     ECSC Treaty, the exchange of information must have
     tended to restrict competition. The Court erred in law in
     holding that it was sufficient if the information might            — Infringement of procedural rights, in particular the prin-
     influence the conduct of undertakings. The possibility that            ciple of ex proprio motu investigation, the rights of defence
     conduct might be influenced cannot per se, however, be                 and the right to procedural fairness: the Court of First
     equated with the tendency to restrict competition.                     Instance misconstrued the scope of the appellant’s pro-
                                                                            cedural rights, its rights of defence and right to procedural
                                                                            fairness, as well as the obligation arising under the principle
(*) See case C-199/99 P, OJ C 204, 17.7.1999, p. 32.
                                                                            of ex proprio motu investigation to establish facts also
                                                                            favourable to the undertakings. Further, the Court erred in
                                                                            law in concluding that the procedural defects in the
                                                                            administrative procedure had been rectified during the
                                                                            judicial proceedings.
                                                                        — Errors in law in regard to the Commission’s failure to
                                                                            comply with essential procedural requirements when it
                                                                            adopted the decision: in view of the fundamental import-
                                                                            ance that the principle of collegiate responsibility should
Appeal brought on 25 May 1999 by Thyssen Stahl AG                           be complied with, the interpretation of inherently contra-
against the judgment delivered on 11 March 1999 by the                      dictory minutes to mean that it could be assumed that the
Court of First Instance of the European Communities                         requisite number of Commission Members had been
(Second Chamber, Extended Composition) in Case                              present constituted an error in law. In so doing, the Court
T-141/94 Thyssen Stahl AG v Commission of the Euro-                         wrongly rejected the complaint made in that connection
                        pean Communities                                    and infringed Articles 5 and 6 of the Commission’s 1993
                                                                            Rules of Procedure. The rejection of the complaint alleging
                                                                            that the version of the decision sent to the appellant was
                       (Case C-194/99 P) (*)                                not authenticated under Article 16 of the Commission’s
                                                                            Rules of Procedure also amounts to an error in law. In this,
                         (1999/C 299/04)                                    the Court of First Instance misconstrued the purpose served
                                                                            by the presumption of validity enjoyed by Community
                                                                            measures; that presumption cannot prevent a decision
An appeal has been brought before the Court of Justice of the               from being set aside in the case where that decision had
European Communities on 25 May 1999 by Thyssen Stahl                        been adopted in breach of formal requirements.
AG, represented by Frank Montag, of Freshfields Deringer,
Bastion Tower, 5 Place du Champs de Mars, B-1050 Brussels,              — Infringement of Article 65(1) and Article 33 of the ECSC
with an address for service in Luxembourg at the Chambers of                Treaty. In the first place, the Court of First Instance, in a
Aloyse May, 31 Grand Rue, against the judgment delivered on                 clear departure from the Commission decision, assumed
11 March 1999 by the Court of First Instance of the European                that the exchange of information constituted a separate
Communities (Second Chamber, Extended Composition) in                       infringement of competition (infringement of Article 33
Case T-141/94 Thysser Stahl AG v Commission of the                          of the ECSC Treaty). Second, the Court infringed Article
European Communities.                                                       65(1) of the ECSC Treaty in so far as it treated the
                                                                            monitoring of orders and deliveries as constituting a
                                                                            separate infringement, without being able to adduce proper
The appellant claims that the Court should:                                 legal reasons as to why the mere exchange of information
                                                                            should be anti-competitive. Finally, the Court failed to
1. Set aside the judgment delivered on 11 March 1999 by the                 appreciate that the exchange of information in question
     Court of First Instance of the European Communities                    was necessary within the context of the monitoring system
     (Second Chamber, Extended Composition) in Case                         implemented by the Commission from 1 July 1988 to 20
     T-141/94 in so far as that judgment fixes the fine imposed             June 1990 pursuant to Decision No 2448/88 and the
     on the appellant at EUR 4 400 000 [paragraph (2)] of the               forward programmes to be set up for that purpose and
     operative part), dismisses the appellant’s action (paragraph           was therefore part of the scheme objectively promoted by
     (3) of the operative part), and orders the appellant to bear           DG III, which the Court ought not to have overlooked
     its own costs and to pay half of the Commission’s costs                when it formed the view that the conduct in question was
     (paragraph (4) of the operative part);                                 anti-competitive.