Thyssen Stahl AG v Commission of the European Communities.
Date: 2003-10-02
20.  First of all, it should be pointed out that, as is clear from Article 32d(1) CS and Article 51 of the ECSC Statute of the Court of Justice, an appeal lies on a point of law only. Therefore, the Court of First Instance has sole jurisdiction to find and appraise the relevant facts and to assess the evidence, except where those facts and that evidence have been distorted (see, to that effect, Case C-136/92 P   Commission   v   Brazzelli Lualdi and Others   [1994] ECR I-1981, paragraphs 49 and 66; Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P, C-251/99 P, C-252/99 P and C-254/99 P   Limburgse Vinyl Maatschappij and Others   v   Commission   [2002] ECR I-8375, paragraph 194; and Case C-312/00 P   Commission   v   Camar and Tico   [2002] ECR I-11355, paragraph 69).
30.  In all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of Community law which must be complied with even if the proceedings in question are administrative proceedings (Case 85/76   Hoffmann-La Roche   v   Commission   [1979] ECR 461, paragraph 9).
31.  The rights of the defence are infringed where it is possible that the outcome of the administrative procedure conducted by the Commission may have been different as a result of an error committed by it (Case 30/78   Distillers Company   v   Commission   [1980] ECR 2229, paragraph 26). An applicant undertaking establishes that there has been such an infringement where it adequately demonstrates, not that the Commission's decision would have been different in content, but rather that it would have been better able to ensure its defence had there been no error, for example because it would have been able to use for its defence documents to which it was denied access during the administrative procedure (see, to that effect, Case C-51/92 P   Hercules Chemicals   v   Commission   [1999] ECR I-4235, paragraph 81, and   Limburgse Vinyl Maatschappij  , paragraph 318).
46.  With respect to the reference in paragraph 164 of the judgment under appeal to the presumption of validity enjoyed by the measures of Community institutions (see, inter alia, Case C-137/92 P   Commission   v   BASF and Others   [1994] ECR I-2555, paragraph 48), suffice it to state that the Court of First Instance did not draw from that presumption any factual or legal conclusion but relied solely on its own assessment of the facts and evidence to conclude that the contested decision had been properly authenticated.
47.  It follows that, in so far as the second limb of the second ground of appeal is directed against that reference, it is irrelevant and therefore unfounded.
78.  Moreover, it should be borne in mind that, although as a general rule the Community judicature undertakes a comprehensive review of the question whether or not the conditions for applying the competition provisions of the EC and ECSC Treaties are met, its review of complex economic appraisals made by the Commission is necessarily limited to verifying whether the relevant rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of appraisal or misuse of powers (see, to that effect, with respect to Article 85 of the EC Treaty (now Article 81 EC), Case 42/84   Remia and Others   v   Commission   [1985] ECR 2545, paragraph 34, and Joined Cases 142/84 and 156/84   BAT and Reynolds   v   Commission   [1987] ECR 4487, paragraph 62).
81.  According to the case-law relating to the tractor market, referred to in paragraph 69 of this judgment, in which the Court of First Instance and the Court of Justice first examined an agreement on the exchange of information in the context of the EC Treaty and the general findings of which can be applied to the ECSC Treaty, such an agreement is incompatible with the rules on competition if it reduces or removes the degree of uncertainty as to the operation of the market in question with the result that competition between undertakings is restricted (see, in particular, Case C-7/95 P   John Deere  , cited above, paragraph 90).
82.  The criteria of coordination and cooperation necessary for determining the existence of a concerted practice, far from requiring an actual   "plan"   to have been worked out, are to be understood in the light of the concept inherent in the provisions of the EC and ECSC Treaties on competition, according to which each trader must determine independently the policy which he intends to adopt on the common market and the conditions which he intends to offer to his customers (see Case C-7/95 P   John Deere  , paragraph 86, and the case-law cited therein).
83.  While it is true that this requirement of independence does not deprive traders of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, however, strictly preclude any direct or indirect contact between such traders, the object or effect of which is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings and the volume of the said market (Case C-7/95 P   John Deere  , paragraph 87, and the case-law cited therein).
84.  In paragraphs 88 to 90 of that   John Deere   judgment, the Court confirmed the general premiss on which the Court of First Instance based its reasoning, namely that:
─  in principle, where there is a truly competitive market, transparency between traders is likely to lead to intensification of competition between suppliers, since the fact that in such a situation a trader takes into account information on the operation of the market, made available to him under the information exchange system, in order to adjust his conduct on the market, is not likely, having regard to the atomised nature of the supply, to reduce or remove for the other traders all uncertainty about the foreseeable nature of his competitors' conduct;
─  however, on a highly concentrated oligopolistic market, the exchange of market information is liable to enable undertakings to be aware of the market positions and strategies of their competitors and thus to impair appreciably the competition which exists between traders.
86.  Contrary to what the appellant claims, an information exchange system may constitute a breach of competition rules even where the relevant market is not a highly concentrated oligopolistic market. It is true that, in its judgment in Case T-35/92   John Deere  , cited above, which was upheld in this regard by the Court's judgment in   John Deere  , the Court of First Instance concluded that the tractors market was such a market. However, those judgments take into consideration a number of criteria in that regard, the only general principle applied in relation to the market structure being that supply must not be atomised.
101.  First of all, as follows from Article 32d CS, the first paragraph of Article 51 of the ECSC Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice, an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, to that effect, Case C-248/99 P   France   v   Monsanto   [2002] ECR I-1, paragraph 68).
105.  Moreover, the present limb of the ground of appeal challenges a number of different findings made by the Court of First Instance throughout the judgment under appeal but does not set out coherent legal arguments specifically contesting that Court's assessment of the concept of   "normal competition"   within the meaning of Article 65(1) of the ECSC Treaty as regards either the interpretation of the legal rule or its application in the present case in the light of the conduct of DG III.
106.  As the second limb of the fourth ground of appeal is too vague to be answered, it must be declared inadmissible.
118.  Thus, in that part of the judgment under appeal, the Court of First Instance examined one of the criteria normally applied in assessing the seriousness of an infringement, while stating, in paragraph 635, that an infringement of Article 65(1) of the ECSC Treaty may be found and a fine imposed under Article 65(5) even in the absence of anti-competitive effects. As it stated in paragraph 636 of the judgment under appeal, the effect which an anti-competitive practice has is therefore not a conclusive criterion for assessing the proper amount of a fine. Factors relating to the intentional aspect may be more significant than those relating to the effects, particularly where they relate to infringements which are intrinsically serious, such as price-fixing and market-sharing, factors which are present in this case.
144.  It is settled case-law that the purpose of the obligation to state the reasons on which an individual decision is based is to enable the Court to review the legality of the decision and to provide the person concerned with sufficient information to make it possible to ascertain whether the decision is well founded or whether it is vitiated by a defect which may permit its legality to be contested (Case 32/86   Sisma   v   Commission   [1987] ECR 1645, paragraph 8).
149.  With regard to statements of figures relating to the calculation of fines, it is appropriate to point out that, however useful and desirable such figures may be, they are not essential to compliance with the duty to state reasons for a decision imposing fines; in any event, the Commission cannot, by mechanical recourse to arithmetical formulas alone, divest itself of its own power of assessment (Case C-291/98 P   Sarrió   v   Commission   [2000] ECR I-9991, paragraphs 75 to 77, and   Limburgse Vinyl Maatschappij  , paragraph 464).
154.  The general principle of Community law that everyone is entitled to a fair hearing, and in particular the right to legal process within a reasonable period, is applicable in the context of proceedings brought against a Commission decision imposing fines on an undertaking for infringement of competition law (Case C-185/95 P   Baustahlgewebe   v   Commission   [1998] ECR I-8417, paragraph 21, and   Limburgse Vinyl Maatschappij  , paragraph 179).
155.  The reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities (Baustahlgewebe  , cited above, paragraph 29, and   Limburgse Vinyl Maatschappij  , paragraph 187).
156.  The Court has held in that regard that that list of criteria is not exhaustive and that the assessment of the reasonableness of a period does not require a systematic examination of the circumstances of the case in the light of each of them, where the duration of the proceedings appears justified in the light of one of them. The purpose of those criteria is to determine whether the time taken in the handling of a case is justified. Thus, the complexity of the case or the dilatory conduct of the applicant may be deemed to justify a duration which is prima facie too long. Conversely, the time taken may be regarded as longer than is reasonable in the light of just one criterion, in particular where its duration is the result of the conduct of the competent authorities. Where appropriate, the duration of a procedural stage may be regarded as reasonable from the outset if it appears to be consistent with the average time taken in handling a case of its type (Limburgse Vinyl Maatschappij  , paragraph 188).