CELEX: C1999/299/07
Language: en
Date: 1999-10-16 00:00:00
Title: Case C-198/99 P: Appeal brought on 25 May 1999 by Empresa Nacional Siderúrgica S.A. (Ensidesa) 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-157/94 Empresa Nacional Siderúrgica S.A. (Ensidesa) v Commission of the European Communities

C 299/6                 EN                   Official Journal of the European Communities                                    16.10.1999
         — inconsistency,                                               — Infringement of Community law in so far as the judgment
                                                                             of the Court of First Instance results in a series of
         — infringement of the principle of equality and                     inconsistencies in regard to its analysis and assessment of
             proportionality in expressing the fines in Ecus,                a number of arguments.
                                                                             (a) First, in relation to the argument concerning joint
         — failure to order the Commission to pay to the                         liability, inasmuch as the respondent imposed a fine
             applicant at first instance the full expenses and                   only on Siderúrgica Aristrain Madrid, attributing to it
             interest resulting from the lodging of a surety or                  the conduct of its sister company;
             from payment of the fine in full or in part; the
             Court should rule that the interest on the fine does            (b) Second, in relation to the aggravating circumstance
             not begin to accrue until the judgment of the Court                 resulting from awareness that the conduct criticised
             of First Instance becomes enforceable, and should                   was unlawful; and, finally
             accordingly order the Commission to pay the
                                                                             (c) In relation to the date indicated in the operative part
             expenses and interest accrued on the surety or
                                                                                 of the Commission decision from which the alleged
             payment of the fine,
                                                                                 infringements attributed to Siderúrgica Aristrain Mad-
                                                                                 rid began to run.
         — idem in relation to the eighth and ninth pleas in
             the present appeal.                                        — Infringement of Community law through misapplication
                                                                             and misinterpretation of the principle of equality and
    3. Refer the case back to the Court of First Instance, in so             proportionality in so far as the judgment of the Court of
         far as is not ready for judgment, in order that the latter          First Instance failed correctly to take account of the
         may rule on:                                                        depreciations incurred by the Spanish peseta, which result-
                                                                             ed in an increase in the fine payable by Siderúrgica
                                                                             Aristrain Madrid compared with those payable by other
         — the plea relating to misuse of power.                             undertakings whose currencies had not suffered devalu-
                                                                             ation or had been revalued.
II. Order the respondent to pay the costs and also rule that
    the respondent must pay the costs in the proceedings at             — Infringement of Community law and of fundamental rights
    first instance, in the event that the Court of Justice upholds           on the ground of inconsistency in the reasoning of the
    in whole or in part the pleas in law set out in the present              judgment of the Court of First Instance in so far as it failed
    appeal.                                                                  to order the Commission to pay the expenses and interest
                                                                             resulting from the lodging of a surety or payment of the
                                                                             fine.
Pleas in law and main arguments                                         — Infringement of Community law by reason of a breach of
                                                                             Article 33 of the Rules of Procedure of the Court of First
                                                                             Instance and breach of procedural guarantees in so far as
— Infringement of Community law through misapplication                       the deliberations of the Court were concluded by only
    and misinterpretation of Article 65 of the Treaty estab-                 three of the five judges who constituted the Chamber at
    lishing the European Coal and Steel Community (the ECSC                  the time of the hearing.
    Treaty) in the assessment of the infringements allegedly
    committed within the context of that Treaty and the                 — Infringement of Community law in so far as the appellant
    ECSC market, inasmuch as the grounds of the impugned                     was refused the right to a fair decision within a reasonable
    judgment are contradictory in relation to this point.                    period of time, contrary to Article 6 of the European
                                                                             Convention on Human Rights.
— Infringement of Community law inasmuch as the Court of
    First Instance erred in law in its judgment in its application      (*) See case C-199/99 P, OJ C 204, 17.7.1999, p. 32.
    of the notion of misuse of power due to the fact that it            (1) OJ 1999 C 160 of 5.6.1999, p. 16.
    failed properly to examine the appellant’s argument in that
    regard or the factors relied on.
— Infringement of Community law through misapplication
    and misinterpretation of Article 15 of the ECSC Treaty,             Appeal brought on 25 May 1999 by Empresa Nacional
    inasmuch as the statement of reasons in the decision                Siderúrgica S.A. (Ensidesa) against the judgment delivered
    relating to the fine is defective.                                  on 11 March 1999 by the Court of First Instance of
                                                                        the European Communities (Second Chamber, Extended
— Infringement of Community law in so far as the judgment               Composition) in Case T-157/94 Empresa Nacional Sid-
    of the Court of First Instance is not sufficiently reasoned in      erúrgica S.A. (Ensidesa) v Commission of the European
    regard to:                                                                                     Communities
                                                                                                (Case C-198/99 P) (*)
    (a) a fundamental point in the applicants’ argument
         concerning the absence of a quorum for the adoption                                      (1999/C 299/07)
         of the contested decision;
                                                                        An appeal has been brought before the Court of Justice of the
    (b) its refusal to compare the level of the fines imposed on        European Communities on 25 May 1999 by Empresa Nacional
         other cartels under the EEC Treaty, without offering           Siderúrgica S.A. (Ensidesa), represented by Santiago Martı́nez
         any valid grounds for that refusal.                            Lage and Jaime Pérez-Bustamente Köster, of the Madrid Bar,
 ---pagebreak--- 16.10.1999            EN                      Official Journal of the European Communities                                          C 299/7
with an address for service at the Chambers of Aloyse May,                    existing allows undertakings consciously to adapt to the
Box 144, 31 Grand Rue, L-2011 Luxembourg, against the                         conduct of their competitors. The Court of First Instance
judgment delivered on 11 March 1999 by the Court of First                     erred in law in basing its line of argument on ‘normal
Instance of the European Communities (Second Chamber,                         competition’ under Article 85(1) of the EC Treaty, without
Extended Composition) in Case T-157/94 Empresa Nacional                       in any way explaining the scope and meaning of that
Siderúrgica S.A. v Commission of the European Communities.                   expression in the ECSC Treaty. The Court of First Instance
                                                                              erred in law in accepting that the Commission was not
                                                                              obliged to demonstrate the negative effect which the
The appellant claims that the Court should:                                   conduct criticised might have on competition, notwith-
                                                                              standing the fact that the Commission had itself taken the
— Primarily: annul the judgment of the Court of First Instance                view that such effect was not negligible. The Court of First
    in Case T-157/94 (1) in so far as it imposes a fine of EUR                Instance distorted the written evidence and the declarations
    3 350 000, dismisses the remainder of the action and                      of witnesses in forming the view that the officials of DG III
    orders the company to bear its own costs and to pay three                 could not have known that, among the copious infor-
    quarters of the Commission’s costs;                                       mation which Eurofer provided to them concerning the
                                                                              general situation on the market, the information on prices
                                                                              was the result of an agreement which the undertakings had
— In the alternative: annul in part the judgment of the Court
                                                                              reached. At the end of the crisis period, the Commission
    of First Instance on the grounds set out in the statement of
                                                                              failed to provide practical guidelines or clear directions
    appeal, and reduce the fine imposed on Ensidesa;
                                                                              which could dispel the doubts which undertakings had as
                                                                              to the application of Article 65(1) of the ECSC Treaty. The
— In either case: order the Commission to pay the costs of                    Commission was aware of and even encouraged the
    the proceedings at first instance and those of the present                exchange of information carried out by the undertakings,
    appeal.                                                                   particularly concerning orders, deliveries, the real level of
                                                                              prices and estimated level of future prices within the
                                                                              framework of numerous meetings held between the under-
Pleas in law and main arguments                                               takings and DG III.
                                                                         — Infringement of Community law inasmuch as the Court
Infringement of Community law by reason of the erroneous
                                                                              failed to annul Article 1 of the decision on the ground that
legal assessment of the infringements of essential procedural
                                                                              it did not indicate the duration of the infringement relating
requirements committed when the Commission decision was
                                                                              to price-fixing.
adopted.
— Absence of a quorum when the decision was adopted: the                 — Infringement of Community law by reason of the
    Court of First Instance failed to take the measures necessary             erroneous legal assessment of the agreement to share the
    to determine whether the Commission had complied with                     French market.
    the principles governing essential procedural requirements.
    On the basis of the scant material available, the Court of
    First Instance reached a manifestly erroneous interpretation         — Infringement of Community law by reason of the improper
    of the content of the minutes recording the adoption of                   exercise by the Court of First Instance of its judicial review
    the decision in forming the view that this had been adopted               function and infringement of Ensidesa’s rights of defence:
    with a sufficient quorum, whereas the minutes referred to                 the judgment under appeal misconstrues the Commission
    make clear that the contrary was the case.                                decision, attributing to it a conclusion which it does not
                                                                              contain. The Court of First Instance ought to have annulled
                                                                              the fine wrongly imposed on Ensidesa in the decision for a
— Absence of formal correspondence between the decision                       separate infringement which, as the Commission acknowl-
    adopted and that notified.                                                edged, did not take place.
— Lack of authentication: the procedure followed by the
    Commission and accepted as adequate by the Court of                  — Infringement of Community law in upholding the legality
    First Instance — submission of the minutes of the meeting                 of the conversion of turnover into ecus, this being an
    without their annexes being attached — fails to guarantee                 infringement of the principle of equity.
    that the Commission adopted the text of the decision in the
    version sent to Ensidesa, thereby infringing the meaning             — Infringement of Community law in upholding the legality
    attributable to Article 16 of the Commission’s Rules of                   of taking into consideration the turnover achieved during
    Procedure in the version prior to their amendment in                      the last year of the infringement.
    1995.
— Infringement of Community law by reason of the
    erroneous legal assessment of the conduct attributed to              (*) See case C-199/99 P, OJ C 204, 17.7.1999, p. 32.
    Ensidesa in the light of Article 65(1) of the ECSC Treaty:           (1) OJ 1999 C 160 of 5.6.1999, p. 17.
    the Court of First Instance interpreted Article 65 of the
    ECSC Treaty as if it were Article 81 EC (ex Article 85 of
    the EC Treaty), thereby committing a manifest error.
    The ECSC Treaty establishes regulated competition in an
    oligopolistic market, in which the limited competition