CELEX: C1999/299/01
Language: en
Date: 1999-10-16 00:00:00
Title: Case C-176/99 P: Appeal brought on 11 May 1999 by ARBED SA 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-137/94 ARBED SA v Commission of the European Communities

16.10.1999             EN                   Official Journal of the European Communities                                        C 299/1
                                                                    I
                                                              (Information)
                                                 COURT OF JUSTICE
                                                          COURT OF JUSTICE
Appeal brought on 11 May 1999 by ARBED SA against                           defence. Furthermore, in justifying the attribution of
the judgment delivered on 11 March 1999 by the Court                        TradeARBED’s conduct to ARBED on the ground that it
of First Instance of the European Communities (Second                       was ‘established that TradeARBED does not independently
Chamber, Extended Composition) in Case T-137/94                             determine its conduct on the Community market in beams
ARBED SA v Commission of the European Communities                           but essentially follows the instructions issued to it by the
                                                                            applicant (ARBED)’, the Court infringed its obligation to
                      (Case C-176/99 P) (*)                                 state reasons by basing its analysis on an assertion which
                                                                            it fails entirely to substantiate. The Court erred in law in
                                                                            interpreting the scope of the statement of objections on
                        (1999/C 299/01)                                     the basis of extraneous factors. In so far as it appears that
                                                                            the Court accepted, as evidence that the ARBED company
An appeal has been brought before the Court of Justice of the               knew that the infringements alleged had been attributed to
European Communities on 11 May 1999 by ARBED SA,                            it from the outset, the fact that the replies given by
represented by Alexandre Vandencasteele, of the Brussels Bar,               TradeARBED to the requests for information and to the
with an address for service in Luxembourg at the office of Paul             statement of objections were provided by the legal service
Ehmann, Head of the Legal Service in ARBED, 19 Avenue de                    of the ARBED group or under cover of a letter from
la Liberté, against the judgment delivered on 11 March 1999                 ARBED’s lawyer, the Court committed a manifest error
by the Court of First Instance of the European Communities                  tantamount to a failure to state reasons. In forming the
(Second Chamber, Extended Composition) in Case T-137/94                     view that ARBED had had an opportunity to set out its
ARBED SA v Commission of the European Communities.                          views on the attribution of responsibility envisaged by the
                                                                            Commission at the time of its request for information on
The appellant claims that the Court should annul the judgment               its turnover, the Court committed a manifest error of law
of the Court of First Instance and:                                         in treating a simple request for information as a statement
                                                                            of objections.
— as the case stands at present, annul the Commission
    decision and order the Commission to pay the costs of
    both sets of proceedings;
    or                                                                  — In altering the scope of the declarations contained in
                                                                            the minutes of the Commission meeting and in giving
— failing that, refer the case back to the Court of First                   preference to one element in those minutes incompatible
    Instance and reserve the costs.                                         with another element in the same minutes, the Court
                                                                            infringed the principle that measures must be authentic
                                                                            and deprived the appellant of the right to be assured that
Pleas in law and main arguments                                             the decision the subject of the action had been adopted in
                                                                            compliance with the principle of collegiate responsibility.
— The Court of First Instance was wrong to refuse to censure
    the fact that the decision which was the subject of the
    action was addressed to, and the fine imposed on, ARBED
    SA rather than TradeARBED. In concluding that the
    Commission had, in its decision, attributed TradeARBED’s            — The Court acted unlawfully in forming the view that it
    conduct to ARBED, at any rate within the meaning given                  could be assumed that essential procedural requirements
    to the notion of attribution in its judgment, the Court                 and, more particularly, the rules in the Commission’s
    substituted its reasoning for that of the Commission and                Rules of Procedure concerning authentication of measures
    thus exceeded the limits of its jurisdiction to annul                   adopted by the College of Commissioners had been
    measures and adversely affected the appellant’s rights of               complied with.
 ---pagebreak--- C 299/2                EN                    Official Journal of the European Communities                                         16.10.1999
— The Court infringed the rights of the defence in ruling itself        2. Having regard in full to the forms of order sought at first
     on the consequences to be attached to the role played by                instance, annul Article 2 of the respondent’s Decision
     DG III during the period in question, as revealed during                C(94)321 of 16 February 1994 and that part of Article 3
     the judicial proceedings, rather than annulling the decision            of that decision which concerns the appellant;
     in order to enable the Commission to rule anew by taking
     into account those factors and the arguments which the             3. Order the respondent to pay the costs of the proceedings.
     undertakings might derive from them.
— Infringement by the Court of Article 65 of the ECSC                   Pleas in law and main arguments
     Treaty: in interpreting Article 65 of the ECSC Treaty, and
     more particularly the notion of normal competition,                — Infringement of Article 65(1) of the ECSC Treaty through
     autonomously and in failing to take account of that                     a legally incorrect interpretation of what constitutes
     provision’s place in the Treaty and of the fact that it                 ‘decisions by associations of undertakings’. The relevance
     pursues other objectives, the Court acted contrary not only             of decisions taken by associations from the point of view
     to the case-law of the Court of Justice, in particular the              of competition law lies in the fact that even those members
     judgment in Case 13/60 Geitling v High Authority (1), but               which did not vote in favour are also bound. If, as
     also to its own jurisprudence in Case T-239/94 EISA v                   presumed in the present case, there is an agreement
     Commission (2). It follows from the Court’s own analysis                between undertakings, it is superfluous also to seek a
     that this approach, which consisted in at least tacitly                 decision by an association. Activities within an association
     encouraging certain conduct which was capable of having                 such as the organisation of information exchange are
     obvious restrictive effects on competition on condition                 unilateral actions on the part of an institution, which
     that such conduct tended in the direction of the general                cannot enter into cartel agreements with itself. The associ-
     policy followed by the Commission, was maintained                       ation activities here in issue are auxiliary services which
     during the years concerned by the decision.                             the association provides for its members. That situation
                                                                             cannot be classified as a cartel. The prohibition in Article
                                                                             65(1) of the ECSC Treaty is therefore not applicable.
(*) See case C-199/99 P, OJ C 204, 17.7.1999, p. 32.
(1) (1962) ECR 83.                                                      — Infringement of Article 15, first paragraph, of the ECSC
(2) (1997) ECR II-1839.
                                                                             Treaty by reason of grounds which are wrong in law,
                                                                             intrinsically contradictory and ignore the limit of the
                                                                             Court’s jurisdiction ratione materiae, in regard to the finding
                                                                             in Article 2 of Decision C(94)321 that Eurofer organised
                                                                             an exchange of confidential information ‘in connection with’
                                                                             the infringements committed by its members.
                                                                        — Infringement of Article 65(1) of the ECSC Treaty and
                                                                             failure by the Court to respect the limits of its jurisdiction
Appeal brought on 17 May 1999 by EUROFER ASBL
                                                                             ratione materiae by reason of its legally erroneous interpret-
against the judgment delivered on 11 March 1999 by the
                                                                             ation of what constitutes ‘... tending ...’ in the application of
Court of First Instance of the European Communities
                                                                             that term to allegedly anti-competitive consequences of
(Second Chamber, Extended Composition) in Case
                                                                             the Eurofer information exchange.
T-136/94 EUROFER ASBL v Commission of the European
                          Communities
                                                                        — Infringement of Articles 15, first paragraph, and 65(1) of
                                                                             the ECSC Treaty through a legally erroneous interpretation
                      (Case C-179/99 P) (*)                                  and application of the term ‘prevent, restrict or distort ...
                                                                             competition’ and through contradictory reasoning in the
                                                                             application of that term to the information exchange
                         (1999/C 299/02)                                     organised by Eurofer:
An appeal has been brought before the Court of Justice of the                The knowledge by the participants in the Eurofer infor-
European Communities on 17 May 1999 by EUROFER ASBL,                         mation exchange that a participant in the product group
represented by Norbert Koch, of Jones, Day, Reavis & Pogue,                  ‘beams’ had increased its turnover could only strengthen
480 Avenue Louise, B-1050 Brussels, with an address for                      their general competitive efforts, but could not provoke a
service at the offices of EUROFER ASBL, 241 Route d’Arlon,                   targeted counter reaction. Participants did not know which
L-1150 Luxembourg, against the judgment delivered on                         specific product or which customer was responsible for
11 March 1999 by the Court of First Instance of the European                 the increase in volume. In addition, the information
Communities (Second Chamber, Extended Composition) in                        referred to the performance (supply) of transactions which
Case T-136/94 EUROFER ASBL v Commission of the European                      had been concluded at least three and a half months,
Communities.                                                                 mostly six, and in some cases seven months previously,
                                                                             and thus too late to counter the advance acquired by one
                                                                             of the participants.
The appellant claims that the Court should:
1. Set aside in its entirety the judgment delivered by the Court        (*) See case C-199/99 P, OJ C 204, 17.7.1999, p. 32.
     of First Instance on 11 March 1999 in Case T-136/94
     EUROFER ASBL v COMMISSION OF THE EUROPEAN
     COMMUNITIES;