Ferriere Nord SpA v Commission of the European Communities.
Date: 1997-07-17
14 Admittedly, unlike the other language versions of Article 85, it appears from the Italian version, as a result of its use of the coordinating conjunction `e', that the agreement must have as its object and effect the prevention, restriction or distortion of competition. However, that difference cannot cast doubt on the interpretation of Article 85 given by the Court of First Instance in paragraph 30 of the contested judgment.
15 In fact, as the Court of First Instance rightly held, it is settled case-law that Community provisions must be interpreted and applied uniformly in the light of the versions existing in the other Community languages (Van der Vecht and CILFIT v Ministry of Health, paragraph 18).  This is unaffected by the fact that, as it happens, the Italian version of Article 85, considered on its own, is clear and unambiguous, since all the other language versions expressly render the condition set out in Article 85(1) of the Treaty in the form of an alternative.
19 In this connection, it must be held that the Court of First Instance rightly pointed out in paragraph 32 of the contested judgment that, according to Case 19/77 Miller v Commission [1978] ECR 131, paragraph 15, Article 85(1) of the Treaty does not require that agreements referred to in that provision have actually affected trade between Member States, which, moreover, is difficult to prove to a sufficient legal standard in most cases, but requires that it be established that the agreements are capable of having that effect.
20 Furthermore, it has been consistently held that in order that an agreement, decision or concerted practice may affect trade between Member States it must be possible to foresee with a sufficient degree of probability on the basis of a set of factors of law or fact that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States such as to give rise to the fear that the realization of a single market between Member States might be impeded (see Case 54/65 Société Technique Minière v Maschinenbau Ulm [1966] ECR 235 and Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck v Commission [1980] ECR 3125, paragraph 170).
31 The applicant may not rely on the Italian version of Article 85 of the Treaty in order to require the Commission to demonstrate that the agreement had both an anti-competitive object and effect.  That version cannot prevail by itself against all the other language versions, which, by using the term "or", clearly show that the condition in question is not cumulative but alternative, as the Court of Justice has consistently held since its judgment in Société Technique Minière (cited above, p. 249).  The uniform interpretation of rules of Community law requires that they be interpreted and applied in the light of the versions existing in the other Community languages (judgments of the Court of Justice in Case 19/67 Van der Vecht [1967] ECR 345 at p. 354, and in Case 283/81 CILFIT v Ministry of Health [1982] ECR 3415, paragraph 18).'
13 The appellant complains that the Court of First Instance failed to take account of the Italian version of Article 85(1) of the Treaty, according to which an agreement must have as its object and effect the prevention, restriction or distortion of competition, with the result that the provision lays down a cumulative, and not an alternative, condition.  The reasoning of the Court of First Instance in paragraph 31 of the contested judgment is incorrectly based on case-law not relating to the Italian version of Article 85.  The other language versions should be called in aid only where the meaning of one version of a provision is not clear, which is not the case here.
14 Admittedly, unlike the other language versions of Article 85, it appears from the Italian version, as a result of its use of the coordinating conjunction `e', that the agreement must have as its object and effect the prevention, restriction or distortion of competition. However, that difference cannot cast doubt on the interpretation of Article 85 given by the Court of First Instance in paragraph 30 of the contested judgment.
15 In fact, as the Court of First Instance rightly held, it is settled case-law that Community provisions must be interpreted and applied uniformly in the light of the versions existing in the other Community languages (Van der Vecht and CILFIT v Ministry of Health, paragraph 18).  This is unaffected by the fact that, as it happens, the Italian version of Article 85, considered on its own, is clear and unambiguous, since all the other language versions expressly render the condition set out in Article 85(1) of the Treaty in the form of an alternative.
16 It follows that the first limb of the first plea must be rejected.
17 The second limb of the first plea relates to paragraphs 32 to 35 of the contested judgment, which read:
`32 ... Article 85(1) of the Treaty does not require that the restrictions on competition which have been established have actually affected trade between Member States, but only requires that it be established that such agreements are capable of having that effect (judgment in Miller, cited above, paragraph 15).
33 In the present case, the fact that the applicant's units of production of welded steel mesh are far away from the French market is not in itself of such a nature as to hinder its exports to that market.  Moreover, the applicant's arguments themselves show that the agreements were, in so far as they tended to increase prices, likely to increase its exports to France and thereby to affect trade between Member States.
34 Furthermore, assuming, as the applicant claims, that the agreements did not alter the total market share held by the Italian producers and that its exports remained far below its allocated quota, it is nevertheless the case that the restrictions on competition which have been established were likely to divert patterns of trade from the course which they would otherwise have followed (judgment in Van Landewyck, cited above, paragraph 172).  The object of the agreements was to allocate quotas for imports into the French market in order to bring about an artificial increase in prices on that market.
35 It follows that, as is found in the Decision, by being a party to agreements which had as their object the restriction of competition within the common market and which might have affected trade between Member States, the applicant infringed Article 85(1) of the Treaty.'
18 The appellant complains that the Court of First Instance merely held in paragraph 32 that it is sufficient that the agreements to which it was a party were capable of actually affecting trade in order for them to be contrary to Article 85 of the Treaty, whereas the Court of First Instance should also have established in what respect those agreements hampered trade between Member States.  In its view, the agreements at issue were not capable of actually affecting trade between Italy and France.
19 In this connection, it must be held that the Court of First Instance rightly pointed out in paragraph 32 of the contested judgment that, according to Case 19/77 Miller v Commission [1978] ECR 131, paragraph 15, Article 85(1) of the Treaty does not require that agreements referred to in that provision have actually affected trade between Member States, which, moreover, is difficult to prove to a sufficient legal standard in most cases, but requires that it be established that the agreements are capable of having that effect.
20 Furthermore, it has been consistently held that in order that an agreement, decision or concerted practice may affect trade between Member States it must be possible to foresee with a sufficient degree of probability on the basis of a set of factors of law or fact that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States such as to give rise to the fear that the realization of a single market between Member States might be impeded (see Case 54/65 Société Technique Minière v Maschinenbau Ulm [1966] ECR 235 and Joined Cases 209/78 to 215/78 and 218/78 Van Landewyck v Commission [1980] ECR 3125, paragraph 170).
21 It follows that the second limb of the first plea must also be rejected.
22 The third limb of the first plea relates to paragraph 29 of the contested judgment:
`29 With regard to the effect on competition, it is true, as the applicant observes, that the price of welded steel mesh depends largely on that of wire rod, but it does not follow from this that any possibility of effective competition in that sector was precluded.  The producers still had a sufficient margin to allow effective competition in the market.  The agreements could therefore have had an appreciable effect on competition ...'.
23 The appellant complains that the Court of First Instance gave no reasons for its finding that, despite the legislative and economic context relating to wire rod, any possibility of effective competition in the sector of welded steel mesh was not for all that excluded.
24 Admittedly, the appellant does not contest the existence of a margin of competition on the market in welded steel mesh despite the ECSC regime applicable to wire rod. However, it complains that the Court of First Instance did not consider whether the agreements on welded steel mesh might not have been consistent with Article 85 of the Treaty in so far as they helped to increase the price of welded steel mesh and hence, indirectly, of wire rod.  The Commission wanted the price level on the wire rod market to recover.  Consequently, the appellant claims that the true aim of the agreement with French manufacturers of welded steel mesh was not to restrict competition in the sector, but to pursue the same aims as the Commission in the wire rod sector.
25 In this regard, it must be held that the Court of First Instance was right in law to find merely that there was a sufficient margin to allow effective competition in the market in welded steel mesh.  The fact that the market in wire rod - upstream of the market in welded steel mesh - was subject to production quotas, and not imposed prices as the appellant seems to be arguing, has no bearing on the finding made by the Court of First Instance.  In any event, the legislative and economic context of wire rod did not authorize the appellant to take part in anti-competitive agreements relating to a derived product on the pretext of protecting the product upstream, thereby substituting itself for the competent authorities, which alone  had the power to do so.
26 The whole of the first plea must therefore be rejected.
Second plea, alleging infringement of Article 15(2) of Regulation No 17
27 This plea is concerned with fixing and determining the amount of the fine in accordance with Article 15(2) of Regulation No 17.
28 Article 15(2) of Regulation No 17 provides as follows:
`The Commission may by decision impose on undertakings or associations of undertakings fines ... where, either intentionally or negligently:
(a) they infringe Article 85(1) or Article 86 of the Treaty; or
(b) ...
In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.'
29 The appellant asks that the fine imposed on it by the contested decision be abolished or, at least, reduced.
30 In this regard, it maintains that the Court of First Instance did not consider all the arguments which it raised before it or that it did not consider sufficiently to what extent they were well founded.  In the alternative, it argues that, assuming the fine to be well founded in principle, its amount is in any case excessive and unjust.
31 As regards the allegedly unjust nature of the fine, it is important to point out that it is not for this Court, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of Community law (Case C-310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I-865, paragraph 34).  In contrast, the Court of Justice does have jurisdiction to consider whether the Court of First Instance has responded to a sufficient legal standard to all the arguments raised by the appellant with a view to having the fine abolished or reduced.
32 It should first be pointed out (see the order of 25 March 1996 in Case C-137/95 P SPO and Others v Commission [1996] ECR I-1611) that, on the one hand, the first subparagraph of Article 15(2) of Regulation No 17 lays down the conditions which must be fulfilled to enable the Commission to impose fines (initial conditions); those conditions include the intentional or negligent nature of the infringement.  On the other hand, the second subparagraph of that provision governs determination of the amount of the fine, which depends on the gravity and duration of the infringement.
33 In the present case, the fact that the applicant's units of production of welded steel mesh are far away from the French market is not in itself of such a nature as to hinder its exports to that market.  Moreover, the applicant's arguments themselves show that the agreements were, in so far as they tended to increase prices, likely to increase its exports to France and thereby to affect trade between Member States.
38 It should be called to mind in this connection that, in fixing the amount of the fines, regard must be had to the gravity and to the duration of the infringement so that the Court has to take account of the legislative background and economic context of the conduct to which exception is taken (Suiker Unie and Others v Commission, paragraph 612).
56 It must be held that the argument based on the devaluation of the lira was not raised by the appellant either before the Court of First Instance or in this appeal.  In order for such a plea to be admissible at the stage of the reply, the appellant should have established, in accordance with Article 42(2) of the Rules of Procedure, in what respect the devaluation of the Italian lira was a new fact which came to light in the course of these proceedings.  Since the appellant has adduced no evidence of this, the plea must be rejected as inadmissible.