Empresa Nacional Siderúrgica SA (Ensidesa) v Commission of the European Communities.
Date: 2003-10-02
25.  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).
28.  With respect to the request for production of the Commissioners' diaries, it must be observed that it is for the Community Court to decide, in the light of the circumstances of the case and in accordance with the provisions of the Rules of Procedure on measures of inquiry, whether it is necessary for a document to be produced. As regards the Court of First Instance, it follows from Article 49 read in conjunction with Article 65(b) of its Rules of Procedure that a request for production of documents is a measure of inquiry which the Court may order at any stage of the proceedings (Case C-286/95 P   Commission   v   ICI   [2000] ECR I-2341, paragraphs 49 and 50).
29.  Given that a copy of the minutes, that is to say, the document provided for in the 1993 Rules of Procedure for the purpose of recording the course of Commission meetings, was available to the Court of First Instance and that, as is stated in paragraph 147 of the judgment under appeal, it reviewed the regularity of those minutes, it was under no obligation whatsoever to adopt a further measure for taking evidence by requesting other documents if it formed the view that such a measure was unnecessary to establish the truth (see, to that effect,   Limburgse Vinyl Maatschappij and Others  , cited above, paragraph 404).
31.  First, measures of inquiry would necessarily lead to the Court ruling on questions of fact (see, to that effect, Case C-199/92 P   Hüls   v   Commission   [1999] ECR I-4287, paragraph 91).
32.  Second, the appeal relates only to the judgment under appeal and it is only if that judgment were set aside that the Court of Justice could, in accordance with the first paragraph of Article 54 of the ECSC Statute of the Court of Justice, deliver judgment itself in the case (see, to that effect,   Hüls  , cited above, paragraph 92).
101.  In paragraph 474 of the judgment under appeal, the Court of First Instance held that   "the taking into account of the turnover achieved by each undertaking during the reference year, that is to say, the last complete year of the period of infringement found, enabled the Commission to assess the size and economic power of each undertaking and the scale of the infringement committed by each of them, those aspects being relevant for an assessment of the gravity of the infringement committed by each undertaking (see [Joined Cases 100/80 to 103/80   Musique Diffusion française and Others   v   Commission   [1983] ECR 1825], paragraphs 120 and 121)."
102.  In doing so, the Court of First Instance set out sufficient grounds for legal purposes for the taking into account, when calculating the fine, of the turnover achieved in the last year of the infringement. It is clear from the case-law of the Court that, when the size and economic strength of an undertaking at the time of the infringement are being assessed, it is necessary to refer to the turnover achieved at that time and not that achieved at the time when the decision imposing the fine was adopted (see, to that effect, Case C-291/98 P   Sarrió   v   Commission   [2000] ECR I-9991, paragraph 86).
104.  As regards the fixing of the fine in ecus on the basis of turnover converted at the exchange rate applicable in 1990, the conversion of turnover achieved in the reference year at the exchange rate applicable at that time makes it possible to avoid distorting the assessment of the respective size of the undertakings which took part in the infringement by taking account of extrinsic and uncertain factors, such as changes in the value of national currencies during the subsequent period (Case C-291/98 P   Sarrió  , cited above, paragraph 86).
106.  Lastly, as regards monetary fluctuations, they are an element of chance which may produce advantages and disadvantages which the undertakings have to deal with regularly in the course of their business activities and whose very existence is not such as to render inappropriate the amount of a fine lawfully fixed by reference to the gravity of the infringement and the turnover achieved during the last year of the period over which it was committed (see Case C-291/98 P   Sarrió  , paragraph 89).