Ensidesa v Commission (ECSC) [2003] EUECJ C-198/99P (02 October 2003)

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Court of Justice of the European Communities (including Court of First Instance Decisions)

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Cite as: [2003] EUECJ C-198/99P

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IMPORTANT LEGAL NOTICE - The source of this judgment is the web site of the Court of Justice of the European Communities. The information in this database has been provided free of charge and is subject to a Court of Justice of the European Communities disclaimer and a copyright notice. This electronic version is not authentic and is subject to amendment.

JUDGMENT OF THE COURT (Fifth Chamber)

2 October 2003 (1)

(Appeal - Agreements and concerted practices - European producers of beams)

In Case C-198/99 P,

Empresa Nacional Siderúrgica SA (Ensidesa), established in Avilés (Spain), represented by S. Martínez Lage and J. Pérez-Bustamante Köster, abogados, with an address for service in Luxembourg,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Second Chamber, Extended Composition) of 11 March 1999 in Case T-157/94 Ensidesa v Commission [1999] ECR II-707, seeking to have that judgment set aside,

the other party to the proceedings being:

Commission of the European Communities, represented by J. Currall and W. Wils, acting as Agents, assisted by J. Rivas de Andrés, abogado, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Fifth Chamber),

composed of: M. Wathelet, President of the Chamber, D.A.O. Edward, A. La Pergola, P. Jann (Rapporteur) and S. von Bahr, Judges,

Advocate General: C. Stix-Hackl,

Registrar: M.-F. Contet, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 31 January 2002,

after hearing the Opinion of the Advocate General at the sitting on 26 September 2002,

gives the following

Judgment

By application lodged at the Court Registry on 25 May 1999, Empresa Nacional Siderúrgica SA (Ensidesa) brought an appeal under Article 49 of the ECSC Statute of the Court of Justice against the judgment of the Court of First Instance of 11 March 1999 in Case T-157/94 Ensidesa v Commission [1999] ECR II-707 (the judgment under appeal), by which the Court of First Instance dismissed in part its application for partial annulment of Commission Decision 94/215/ECSC of 16 February 1994 relating to a proceeding pursuant to Article 65 of the ECSC Treaty concerning agreements and concerted practices engaged in by European producers of beams (OJ 1994 L 116, p. 1) (the contested decision). By that decision, the Commission imposed a fine on the appellant under Article 65 of the ECSC Treaty.

Facts and the contested decision

According to the judgment under appeal, the European steel industry underwent, from 1974 onwards, a crisis characterised by a fall in demand giving rise to problems of excess supply and capacity and low prices.

In 1980, after having attempted to manage the crisis by way of unilateral voluntary commitments given by undertakings as regards the amount of steel put on the market and minimum prices (the Simonet Plan) or by fixing guide and minimum prices (the Davignon Plan, the Eurofer I agreement), the Commission declared that there was a manifest crisis within the meaning of Article 58 of the ECSC Treaty and imposed mandatory production quotas for, inter alia, beams. That Community system came to an end on 30 June 1988.

Long before that date, the Commission had announced in various communications and decisions that the quota system was to be abandoned, pointing out that the end of that system would mean a return to a market characterised by free competition between undertakings. However, the sector continued to be affected by excess production capacity which, according to expert opinion, had to undergo a sufficient and rapid reduction to enable undertakings to meet world competition.

From the end of the quota system, the Commission set up a surveillance system involving the collection of statistics on production and deliveries, monitoring of market developments and regular consultation with undertakings on the market situation and trends. The undertakings in the sector, some of which were members of the Eurofer trade association, thus maintained regular contact with DG III (Directorate-General for the Internal Market and Industrial Affairs) of the Commission (DG III) by way of consultation meetings. The surveillance system came to an end on 30 June 1990 and was replaced by an individual and voluntary information scheme.

At the beginning of 1991, the Commission carried out a series of inspections in the offices of a number of steel undertakings and associations of undertakings in the sector. A statement of objections was sent to them on 6 May 1992. Hearings were held at the beginning of 1993.

On 16 February 1994, the Commission adopted the contested decision, by which it found that 17 European steel undertakings and one of their trade associations had participated in a series of agreements, decisions and concerted practices designed to fix prices, share markets and exchange confidential information on the market for beams in the Community, in breach of Article 65(1) of the ECSC Treaty. By that decision, it imposed fines on 14 undertakings for infringements committed between 1 July 1988 and 31 December 1990.

The proceedings before the Court of First Instance and the judgment under appeal

On 18 April 1994, the present appellant brought an action before the Court of First Instance for, inter alia, partial annulment of the contested decision.

By the judgment under appeal, the Court of First Instance granted the present appellant's application in part and reduced the fine imposed on it.

Forms of order sought by the parties

The appellant claims that the Court should:

- primarily, set aside the judgment under appeal in so far as it imposed on the appellant a fine of EUR 3 350 000, dismissed the remainder of the action and ordered the appellant to bear its own costs and to pay three quarters of the Commission's costs;

- in the alternative, annul in part the judgment under appeal on the grounds set out in the appeal and reduce the fine imposed on the appellant;

- in any event, order the Commission to pay the costs incurred at first instance and those of the present appeal.

The Commission contends that the Court should:

- dismiss the appeal in its entirety;

- order the appellant to pay the costs.

The grounds of appeal

The appellant raises six grounds of appeal:

1. infringement of Community law in that the Court of First Instance failed to censure the non-compliance with essential procedural requirements when the contested decision was adopted;

2. infringement of Article 65(1) of the ECSC Treaty;

3. infringement of Community law in that the Court of First Instance failed to annul Article 1 of the contested decision even though that article does not state the duration of the infringement relating to price-fixing;

4. erroneous legal assessment of the agreement to share the French market;

5. improper exercise by the Court of First Instance of its judicial review function and infringement of the appellant's rights of defence;

6. infringement of Community law as regards the choice of turnover used to calculate the fine and the conversion of that turnover into ecus.

The paragraphs of the judgment under appeal challenged by each of the grounds of appeal will be indicated as those grounds are examined.

The appeal

The first ground of appeal

By the first ground of appeal, the appellant submits that the Court of First Instance infringed Community law by failing to censure the non-compliance with essential procedural requirements when the contested decision was adopted.

This ground can be divided into three limbs: first, absence of a quorum for adoption of the contested decision; second, absence of formal correspondence between the decision adopted and that notified and, third, failure to authenticate that decision.

The first limb of the first ground of appeal

The appellant submits that the Court of First Instance erred in law when assessing the minutes of the Commission session during which the contested decision was adopted (the minutes). The Court of First Instance took the view that the contested decision had been adopted in compliance with the applicable quorum without assessing all of the evidence submitted by the appellant and on the basis of a clearly inconsistent interpretation of the minutes.

The judgment under appeal states that it is clear from page 2 of the minutes that nine Commission Members were present during the Commission deliberations even though, according to page 40 of those minutes, Mr Budd and Mr Santopinto, the respective heads of the Cabinets of Sir Leon Brittan and Mr Ruberti, together with Mrs Evans, a member of Mr Flynn's Cabinet, attended the session in the absence of the Commission Members, which, the appellant submits, shows that Sir Leon Brittan, Mr Ruberti and Mr Flynn were not present when the contested decision, referred to in point XXV of the minutes, was adopted in the afternoon.

This limb of the ground of appeal is directed against paragraphs 122 to 124 of the judgment under appeal, which are worded as follows:

122 It is also clear from the attendance list on page 2 of the minutes that nine Commission Members were present when the Commission discussed point XXV, that is to say: Mr Delors, Sir Leon Brittan, Mr Van Miert, Mr Ruberti, Mr Millan, Mr Van den Broek, Mr Flynn, Mr Steichen and Mr Paleokrassas. The quorum required by Article 5 of the [Rules of Procedure of the Commission as laid down in Commission Decision 93/492/Euratom, ECSC, EEC of 17 February 1993 (OJ 1993 L 230, p. 15) (the 1993 Rules of Procedure)] was thus achieved. Likewise, the [contested] decision was able to be adopted with the agreement of the nine Members present, in accordance with Article 6 of those Rules of Procedure.

123 The applicants' argument, however, is based on the attendance list set out on page 40 of the minutes, which indicates that Mr Budd and Mr Santopinto, the respective heads of the Cabinets of Sir Leon Brittan and Mr Ruberti, together with Mrs Evans, a member of Mr Flynn's Cabinet, attended the session in the absence of the Commission Members. From this the applicants infer that, contrary to what is stated on page 2 of the minutes, Sir Leon Brittan, Mr Ruberti and Mr Flynn were not present when the [contested] decision referred to in point XXV was adopted.

124 That argument cannot be accepted. It is clear from the actual wording of the list on page 2 of the minutes that the purpose of that list was to record precisely which Commission Members were absent or present during the meeting in question. That record relates both to the morning and to the afternoon session and is thus proof that the Commission Members concerned were present during those two sessions, unless it is expressly indicated therein that a Member was absent during the discussion on a specific point. In contrast, the list on page 40 of the minutes is not intended to record which Commission Members were present but relates solely to the other persons who may have been present, such as heads of Cabinet. In those circumstances, the indirect inferences which the applicants purport to draw from that list cannot carry greater weight than the express reference, on page 2 of the minutes, to the presence or absence of Commission Members.

According to the appellant, the interpretation made by the Court of First Instance in those paragraphs of the judgment under appeal is entirely unfounded and inconsistent.

The appellant further complains that the Court of First Instance refused to grant its application for a measure of inquiry to determine, by examining the Commissioners' diaries, which of them were actually present at the meeting during which the contested decision was adopted. In refusing to grant that measure, the Court of First Instance infringed the appellant's right, expressly recognised by the Court in paragraph 64 of the judgment in Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555, to have an opportunity to satisfy itself that the procedure followed in adopting that decision was lawful.

The appellant submits that the Court should, in accordance with Article 24 of the ECSC Statute of the Court of Justice, ask the Commission to produce the diaries and other similar documents of its Members so that the list of those Members actually present when the contested decision was adopted during the afternoon session of 16 February 1994 may be established once and for all.

The Commission contends, first of all, that this ground of appeal is inadmissible because it is for the Court of First Instance alone to assess the facts and the value to be attributed to the items of evidence submitted to it.

Similarly, the Commission regards the request for production of the diaries and other similar documents of its Members as inadmissible since that is not a measure which may be ordered in appeal proceedings. Article 118 of the Rules of Procedure of the Court of Justice, which applies specifically to appeals, refers to Articles 43, 44, 55 to 90, 93, 95 to 100 and 102 of those Rules but clearly omits Articles 45 to 54, which relate to measures of inquiry.

Should the Court take the view that this limb of the ground of appeal is admissible, the Commission claims that is unfounded. The Court of First Instance was right to take account of the list on page 2 of the minutes, the purpose of which was to record precisely which Commission Members were present or absent during the meeting in question. Moreover, the Commission submits that the appellant has misinterpreted page 40 of the minutes. As the Court of First Instance observed, it cannot be inferred from the statement on that page that the three Commission Members referred to were absent when point XXV of the agenda was being discussed.

Findings of the Court

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).

In the present case, the appellant does not, by its line of argument, seek to establish distortion by the Court of First Instance of the content of the minutes. It merely calls into question the Court's interpretation of those minutes in paragraph 124 of the judgment under appeal.

Accordingly, it must be held that, in so far as this part of the first limb of the first ground of appeal challenges the assessment of facts and evidence by the Court of First Instance, it must be declared inadmissible.

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).

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).

As regards the claim that the Court should itself order production of the diaries and other similar documents of the Commissioners, suffice it to state that such a measure of inquiry may not be ordered in appeal proceedings, the purpose of which is to review the legality of the decision adopted by the Court of First Instance and which are limited to points of law.

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).

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).

It follows that the first limb of the first ground of appeal is inadmissible.

The second limb of the first ground of appeal

The appellant is challenging paragraph 135 of the judgment under appeal, which is worded as follows:

The applicants have not pleaded, and the Court has not been able to identify, any substantive difference between the versions C(94)321/2 and C(94)321/3 of the [contested] decision, read together, as lodged by the Commission at the Registry of the Court in the four authentic languages, and the versions of [that] decision notified to the applicants. In those circumstances, the fact that the [contested] decision was adopted in the form of two documents, that is to say C(94)321/2 and C(94)321/3, the second of which contained a number of amendments, some hand-written, to the first, is irrelevant, a fortiori since, in substance, those amendments relate only to the payment of the fines by instalments and the decision not to impose fines of less than ECU 100. Likewise, the fact that in some language versions the documents C(94)321/2 and C(94)321/3 have inconsistent page numbering or different character fonts is irrelevant, since the intellectual component and the formal component of those documents, read in conjunction, correspond to the version of the [contested] decision notified to the applicants ([BASF and Others, cited above], paragraph 70).

The appellant takes the view that, in ruling that the adopted and notified versions of a decision do not necessarily have to be consistent, the Court of First Instance misapplied the case-law cited by it. According to that case-law, a lack of formal correspondence between the decision adopted and the decision notified to the parties must lead to annulment of that decision.

The Commission contends that this ground is inadmissible because the Court of First Instance confined itself to establishing the facts of the case and stated that it had found no substantive difference between the different versions of the contested decision.

The Commission further submits that the ground has no basis in law and is founded on a misinterpretation of paragraph 135 of the judgment under appeal. The Court of First Instance did not hold that the Commission may notify to the parties a text which is inconsistent with that adopted but rather that factors such as inconsistent page numbering or different character fonts do not affect the intellectual and formal components of documents.

Findings of the Court

By this limb of the first ground of appeal, the appellant is challenging the assessment of evidence by the Court of First Instance. In paragraph 135 of the judgment under appeal, the Court of First Instance, after having examined the documents submitted to it, held that it had not been established that there was any substantive difference between the notified version of the contested decision and versions C(94)321/2 and C(94)321/3, which were annexed to the minutes.

It follows that the second limb of the first ground of appeal must be declared inadmissible.

The third limb of the first ground of appeal

The third limb of the first ground of appeal is directed against paragraphs 143 to 147 of the judgment under appeal, which are worded as follows:

143 It must first be pointed out that the first paragraph of Article 16 of the 1993 Rules of Procedure did not define how instruments adopted in the course of a meeting were to be annexed to the minutes, in contrast, for example, to Article 16 of the Commission's Rules of Procedure, as amended by Decision 95/148/EC, ECSC, Euratom of 8 March 1995 (OJ 1995 L 97, p. 82), which provides that the instruments in question must be attached to the minutes in such a way that they cannot be separated.

144 In this case, the minutes were received by the Court accompanied by documents C(94)321/2 and C(94)321/3 in the authentic languages, in the same container which Commission officials state to have received as such from the Commission's Secretariat-General, following the Court's request of 11 March 1998. It can therefore be assumed that those documents were annexed to the minutes in the sense that they were placed with those minutes, without being physically attached to them.

145 The purpose of the first paragraph of Article 16 of the 1993 Rules of Procedure is to ensure that the Commission has duly adopted the instrument in the form notified to the party to whom it is addressed. In this case, the applicant has failed to establish that there was any substantive difference between the version of the [contested] decision which was notified to it and the version which, according to the Commission, was annexed to the minutes.

146 In those circumstances, and regard being had to the presumption of validity which Community measures enjoy (Case T-35/92 John Deere v Commission [1994] ECR II-957, paragraph 31), the applicant has failed to establish that documents C(94)321/2 and C(94)321/3 were not annexed to the minutes within the meaning of Article 16 of the 1993 Rules of Procedure. Those documents must therefore be regarded as having been authenticated by the signatures of the President and the Secretary-General on the first page of those minutes.

147 As regards the fact that the minutes produced before the Court were themselves a photocopy lacking the original signatures of the President and the Secretary-General, it must be pointed out that the first page of that document bears the stamp certified to be a true copy, Secretary-General Carlo Trojan and that this stamp bears the original signature of Mr Trojan, the titular Secretary-General of the Commission. The Court takes the view that this certification of authenticity by the titular Secretary-General of the Commission provides sufficient proof for legal purposes that the original version of the minutes bears the original signatures of the President and Secretary-General of the Commission.

The appellant maintains that, in finding that versions C(94)321/2 and C(94)321/3 had been properly annexed to the minutes, the Court of First Instance, in paragraph 144 of the judgment under appeal, failed to comply with the first paragraph of Article 16 of the 1993 Rules of Procedure, which states:

Instruments adopted by the Commission in the course of a meeting or by written procedure shall be annexed, in the authentic language or languages, to the [minutes] of the meeting at which they were adopted or at which note was taken of their adoption. They shall be authenticated by the signatures of the President and the Secretary-General on the first page of the minutes.

The applicant further submits that, in paragraph 147 of the judgment under appeal, the Court of First Instance failed to assess correctly the evidence relating to authentication of the contested decision, as notified, by the President and the Secretary-General of the Commission.

The Commission contends that these two heads of complaint are inadmissible since they relate to findings of fact or the assessment of evidence, which fall within the exclusive jurisdiction of the Court of First Instance.

In addition, the Commission claims that the ground is unfounded because paragraphs 145 and 146 of the judgment under appeal must also be taken into account and observes that the appellant has produced no evidence of a substantive difference between the versions of the contested decision.

As regards paragraph 147 of the judgment under appeal, the Commission claims that Article 16 of the 1993 Rules of Procedure does not require that notified decisions be authenticated but only that the minutes of meetings be so authenticated.

Findings of the Court

The appellant is again challenging the assessment of evidence by the Court of First Instance. In paragraph 144 of the judgment under appeal, the Court of First Instance assumed that documents C(94)321/2 and C(94)321/3 were annexed to the minutes while, in paragraph 147 of that judgment, it held that the certification of authenticity by the titular Secretary-General of the Commission provided sufficient proof for legal purposes that the original version of the minutes bore the original signatures of the President and the Secretary-General of the Commission.

It follows that the third limb of the first ground of appeal must be declared inadmissible.

In light of the above findings, the first ground of appeal must be rejected as inadmissible in its entirety.

The second ground of appeal

The second ground of appeal, which alleges infringement of Article 65(1) of the ECSC Treaty, can be divided into three limbs. The first limb alleges an error as regards the concept of normal competition within the meaning of that provision, the second limb alleges failure to comply with the obligation to demonstrate that the conduct complained of in the contested decision had an adverse effect on competition and the third limb alleges failure to take account of the role played by DG III.

The first limb of the second ground of appeal

By the first limb of the second ground of appeal, alleging an error as regards the concept of normal competition within the meaning of Article 65(1) of the ECSC Treaty, the appellant submits that the Court of First Instance interpreted the concepts of agreement and concerted practice in that provision in the same way as the corresponding concepts in Article 85 of the EC Treaty (now Article 81 EC) even though it ought to have assessed the facts which were the subject of the contested decision in accordance with the rules in Articles 46 to 48, 60 and 65 of the ECSC Treaty and not those specific to the EC Treaty.

According to the appellant, the competition with which the ECSC Treaty is concerned is not that protected by the EC Treaty but rather imperfect competition on an oligopolistic market. Article 60 of the ECSC Treaty introduces an element of concerted action between undertakings by requiring almost automatic alignment of their prices with those published in accordance with that article. The Court of First Instance was therefore wrong to assess the conduct alleged against the appellant in the light of Article 65(1) of the ECSC Treaty without taking account of Article 60.

The Commission claims, first, that this limb of the ground of appeal merely repeats arguments submitted before the Court of First Instance and that it is therefore inadmissible.

The Commission contends, second, that the Court of First Instance's reasoning in paragraphs 238 to 242 and 245 to 253 of the judgment under appeal is correct. In particular, it points out that the conduct of which the appellant was accused consisted of agreements and concerted practices designed to fix prices and market shares. Such practices are not mentioned in Article 60 of the ECSC Treaty and to accept that they are lawful would deprive Article 65 of that Treaty of its effect.

Findings of the Court

In paragraphs 237 to 242 of the judgment under appeal, the Court of First Instance examined the context of Article 65(1) of the ECSC Treaty. In paragraphs 243 to 253, it also examined whether Article 60 of that Treaty was relevant to the assessment, in the light of Article 65(1), of the conduct alleged against the appellant. In paragraph 254 of that judgment, it examined Articles 46 to 48 of the ECSC Treaty and concluded, in the following paragraph, that none of the articles referred to in the present paragraph allowed undertakings to breach the prohibition in Article 65(1) by concluding agreements or participating in concerted practices relating to price-fixing such as those at issue in the present case.

The Court finds that all of the reasons set out by the Court of First Instance in that regard were correct in law.

It follows that the first limb of the second ground of appeal is unfounded.

The second limb of the second ground of appeal

The appellant submits that the Court of First Instance erred in law in paragraph 230 of the judgment under appeal in ruling that the Commission was not under an obligation to demonstrate that the conduct complained of in the contested decision had an adverse effect on competition even though the Commission had seen fit to explain, in recital 222 of the grounds of that decision, that the effect of that conduct was far from negligible. Moreover, the Court of First Instance's reasoning was contradictory in so far as it took the view, in paragraph 517 of that judgment, that the Commission exaggerated the economic impact of the price-fixing agreements found here, as compared with the competition which would have existed had it not been for such infringements, having regard to the favourable economic climate and the latitude given to undertakings to conduct general discussions on price forecasts, between themselves and with DG III.

The Commission contends that, according to the very wording of Article 65(1) of the ECSC Treaty, agreements and concerted practices are contrary to that provision even where they merely tend to restrict competition. The Court of First Instance was therefore right to hold that it was unnecessary to demonstrate that the cartel complained of actually had such an adverse effect on competition.

Findings of the Court

Article 65(1) of the ECSC Treaty prohibits agreements which tend to prevent, restrict or distort normal competition.

It follows that Article 65(1) prohibits agreements the purpose of which is to restrict competition but the anti-competitive effects of which have not been established. The Court of First Instance was therefore right to confirm, in paragraph 230 of the judgment under appeal, that the Commission was not obliged to demonstrate that there had been an adverse effect on competition in order to establish an infringement of Article 65(1) of the ECSC Treaty.

The appellant, drawing on the Court of First Instance's finding in paragraph 517 of the judgment under appeal that the Commission had exaggerated the economic impact of the price-fixing agreements found in this case, argues that the grounds for that judgment are contradictory and maintains that proof of the effects of those agreements is necessary for a finding that they constituted an infringement. That paragraph is contained in the part of the judgment in which the Court of First Instance examined the economic impact of the infringements with a view to assessing whether the fine was fixed at a disproportionate amount (paragraphs 505 to 518).

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 507, 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.

It follows that the Court of First Instance did not contradict itself in taking into account the economic effect of those agreements when assessing the level of the fine even though those effects are not essential for a finding that there has been an infringement of Article 65(1) of the ECSC Treaty.

The second limb of the second ground of appeal is for that reason unfounded.

The third limb of the second ground of appeal

The third limb of the second ground of appeal relates to paragraphs 395 and 404 to 439 of the judgment under appeal. Having examined various items of evidence, the Court of First Instance found, in paragraph 436, that the undertakings concerned had deliberately ensured that the DG III officials did not become aware of their agreements in restraint of competition or their discussions on precise, detailed information individualised at the level of the undertakings.

The appellant submits that the Court of First Instance's reasoning is unacceptable because it involves a clear distortion of the documentary evidence and the statements of witnesses as regards DG III's awareness of the exchange of future price forecasts. However, it was that reasoning which enabled the Court of First Instance to conclude that the appellant had not demonstrated that DG III was involved in the infringements found to have occurred or, in any event, was aware of the content of the meetings organised between the undertakings concerned. The appellant directs its complaint more specifically against paragraphs 395, 409 and 414 to 416 of the judgment under appeal.

Those paragraphs are worded as follows:

395 Even assuming that, after the end of the period of manifest crisis, some doubt could have remained as to the actual scope of Article 65(1) of the Treaty or as to the Commission's position in that regard, given its ambiguous attitude up to 30 June 1988 (see, in that respect, paragraphs 491 to 502 of the judgment being delivered today in Case T-141/94 Thyssen [Stahl] v Commission), this circumstance cannot prevent the actions of the applicant after that date and, more specifically, after 1 January 1989 from being characterised as infringements. In that regard, the Court has already referred to the case-law of the Court of Justice according to which the prohibition laid down in Article 65(1) of the Treaty is of strict application and characterises the system established by the Treaty (Opinion 1/61 [of 13 December 1961 [1961] ECR 243], p. 262).

...

409 It is true that, within that context, the Commission was pursuing a general objective of preserving a balance between supply and demand, and consequently of stability in the general level of prices, intended to allow steel undertakings to become profitable again (see, for instance, the internal DG III note of 24 October 1988 concerning the meeting with the industry on 27 October 1988, DG III's summary of 10 May 1989 of the consultation meeting of 27 April 1989, DG III's summary of 28 October 1989 of the consultation meeting of 26 October 1989, and the internal DG III note of 8 November 1989 concerning a meeting with producers on 7 November 1989).

...

414 It is true that many of the documents relating to the meetings between the industry and DG III refer to price forecasts.

415 Equally, it is clear, a posteriori, from all of the documents produced before the Court that some of the information given to DG III concerning future prices of beams was derived from the agreements reached within the [Eurofer Committee, called the Poutrelles Committee (the Poutrelles Committee)] (see, in particular, the minutes of the Poutrelles Committee meetings of 10 January 1989, 19 April 1989, 6 June 1989 and 11 July 1989 in conjunction with the minutes and speaking notes relating to the consultation meetings of 26 January 1989, 27 April 1989 and 27 July 1989).

416 However, the Court finds that, at that time, the officials of DG III were not in a position to tell that, among the extensive information which Eurofer provided to them concerning, in particular, the general market situation, stocks, imports and exports and demand trends, the information on prices came from agreements between undertakings.

The Commission contends that this limb of the ground of appeal must be declared inadmissible since it relates to the assessment of evidence and not to distortion of that evidence. The appellant gives no explanation whatsoever as to how, specifically, that evidence was distorted, even though it is a matter for it to state the origin and nature of the Court of First Instance's misinterpretation in that respect.

Findings of the Court

In the present case, the appellant alleges that the Court of First Instance distorted the documents and witnesses' testimony submitted to it but in no way demonstrates, or indeed seeks to demonstrate, how the Court of First Instance, in the paragraphs challenged by this limb of the ground of appeal, made incorrect findings of fact and altered the clear and precise sense of those documents and testimony.

In addition, it can be held on the basis of a simple reading of the relevant paragraphs of the judgment under appeal that, in those paragraphs, the Court of First Instance sets out findings relating to the evidence submitted and its own views as to how events unfolded.

Therefore, the third limb of the second ground of appeal is, in reality, directed against the assessment of the evidence by the Court of First Instance. Having regard to the case-law referred to in paragraph 25 of this judgment, it must for that reason be declared inadmissible.

In light of the above findings, the second ground of appeal must be declared inadmissible in part and unfounded in part.

The third ground of appeal

By the third ground of appeal, the appellant submits that the Court of First Instance infringed Community law by failing to annul Article 1 of the contested decision even though that article does not state the duration of the infringement relating to price-fixing.

The appellant observes that, in paragraph 259 of the judgment under appeal, the Court of First Instance found that recitals 227 to 237 of the grounds for the contested decision did not contain evidence which could justify the whole duration of the infringement relating to price-fixing. The appellant therefore challenges the Court of First Instance's finding, in paragraph 263, that the agreements and concerted practices relating to price-fixing of which the appellant was accused constituted continuous collusion even though, according to the case-law of the Court of First Instance, the Commission was under an obligation to demonstrate individually, in the contested decision, the existence and duration of each of the infringements (Case T-11/89 Shell v Commission [1992] ECR II-757, paragraph 190, and Case T-295/94 Buchmann v Commission [1998] ECR II-813, paragraphs 82 and 119).

The Commission contends that this ground of appeal is unfounded. The appellant has attempted to distort the content of the judgment under appeal by referring only to paragraph 259 of that judgment. Although the Court of First Instance acknowledged, in that paragraph, that recitals 227 to 237 of the grounds for the contested decision did not make it possible to establish the duration of the infringement, its finding was based on the examination, in paragraphs 260 to 262 of the judgment under appeal, of other passages in those grounds and on the documents cited in those passages.

Findings of the Court

It is appropriate to set out in their entirety paragraphs 259 to 263 of the judgment under appeal, which are worded as follows:

259 It is true that the matters set out in recitals 227 to 237 of the [contested] decision do not in themselves contain evidence justifying the entire duration of the infringement of price-fixing within the Poutrelles Committee of which the applicant is accused in Article 1 of [that] decision, namely a period of 24 months from 1 January 1989 to 31 December 1990. It is not clear from that part of the [contested] decision that the participants in the meetings of the Poutrelles Committee concluded or applied an agreement or engaged in a concerted practice of price-fixing during the fourth quarter of 1990.

260 However, it is clear from recitals 118 to 121 of the [contested] decision and from the documents cited there that, after broaching, at the meeting on 11 September 1990, the principle of and arrangements for a moderate price increase to be probably applied on 1 January 1991, the members of the Poutrelles Committee continued their discussions at the meeting on 9 October 1990 until they arrived at a consensus on a price increase in the region of [DEM] 20 to 30 on the continental markets during the first quarter of 1991 (see the minutes of that meeting, documents nos 346 to 354 of the file). In addition, the minutes of the meeting indicate that in regard to prices, despite some difficulties in certain countries, the levels for the third quarter of 1990 have been continued for the fourth quarter with full application of the new changes.

261 Having regard to the agreements which were properly concluded or renewed from quarter to quarter and to the practices usually followed within the Poutrelles Committee up to the first inspections carried out by the Commission in January 1991, the Court finds that those documents constitute proof that the collusion in relation to prices, and in particular the extension of previously concluded agreements, took place during the fourth quarter of 1990.

262 More generally, the Court considers that the agreements and concerted practices designed to fix prices of which the applicant is accused, on the basis of the findings of fact set out in recitals 95 to 121 and 227 to 237 of the [contested] decision, can be placed in the context of regular meetings and constant contact between producers, which provided an opportunity for continuous cooperation between them within the Poutrelles Committee.

263 Accordingly, the Commission was correct to find, in recital 221 of the [contested] decision, that the undertakings concerned engaged in continuous collusion with the aim, inter alia, of increasing and harmonising prices in the different Member States of the ECSC and, in recital 242 of [that] decision, that the responsibility for the agreements and concerted practices relating to price-fixing within the Poutrelles Committee described in [that] decision has to be borne by the undertakings for the entire period during which they participated in the meetings and the concomitant cooperation, namely, with respect to the applicant, given the special situation of Spanish producers (see recital 313 of the [contested] decision), the period of 24 months from 1 January 1989 to 31 December 1990.

It is clear from the citation in the preceding paragraph that the Court of First Instance examined various elements of the contested decision before concluding, in paragraph 263 of the judgment under appeal, that the infringement had indeed lasted 24 months. It is true that it found, in paragraph 259 of that judgment, that it was not clear from recitals 227 to 237 of the grounds for the contested decision how long participation in the infringement during the fourth quarter of 1990 lasted but it based its conclusion on various elements of the contested decision, which are described in paragraphs 260 to 262 of the judgment under appeal.

The appellant is not justified in contrasting the finding made in paragraph 259 of the judgment under appeal with the conclusion in paragraph 263 without taking account of paragraphs 260 to 262, in which the Court of First Instance set out the elements which it had taken into consideration.

It follows that the third ground of appeal is unfounded.

The fourth ground of appeal

The fourth ground of appeal alleges an infringement of Community law in the erroneous legal assessment of the agreement to share the French market.

This ground relates to paragraphs 296 and 297 of the judgment under appeal, which are worded as follows:

296 Having regard to that consistent evidence, which can be placed in the context of the meetings of the Poutrelles Committee, one of the main purposes of which was to stabilise the level of import penetration as compared with traditional flows (see below), the Court takes the view that the Commission was justified in concluding, in recital 260 of the [contested] decision, that, without being actively involved in the elaboration of the scheme, the applicant complied with it and that, accordingly, it could legitimately be found to have participated in the infringement in question.

297 Since it has been established that the purpose of the agreement at issue was to stabilise the deliveries of the participants at the level of their traditional flows, the fact that the quantities exported by the applicant on the French market in the fourth quarter were very similar to those which it had exported in the first and second quarters can be interpreted neither as evidence of its non-participation in that agreement nor as a circumstance justifying the application to the facts of this case of the principles laid down by the Court of Justice in [Joined Cases 29/83 and 30/83] CRAM and Rheinzink v Commission [[1984] ECR 1679].

The Court of First Instance held, in paragraph 298 of the judgment under appeal, that the appellant's participation in a market-sharing agreement prohibited by Article 65(1) of the ECSC Treaty had been proven to the requisite legal standard.

The appellant takes the view that the Court of First Instance was wrong to reject, in the judgment under appeal, application to this case of the principles laid down in CRAM and Rheinzink, cited above, under which the decision finding an infringement must be annulled where there is a possible explanation for the events complained other than that given in that decision. At first instance, the appellant submitted that the quantity exported during the fourth quarter of 1989, far from being unusual, could be explained by the fact that it corresponded to its usual exports. The Court of First Instance was, the appellant argues, wrong to reject that explanation in finding that that quantity could not be regarded as evidence of non-participation in an agreement intended to stabilise the participants' deliveries at the level of their traditional flows.

The Commission argues that this ground must be declared inadmissible because it is both a simple restatement of arguments already raised at first instance and an issue relating to the assessment of the facts.

Findings of the Court

Suffice it to point out that, in paragraphs 296 to 298 of the judgment under appeal, the Court of First Instance assessed evidence. In those paragraphs, that Court stated, in particular, that it was satisfied that the facts established could be explained only by participation of the appellant in the agreement which was the subject of complaint.

Having regard to the case-law referred to in paragraph 25 of this judgment, the fourth ground of appeal must therefore be declared inadmissible.

The fifth ground of appeal

The fifth ground of appeal alleges improper exercise by the Court of First Instance of its review function and infringement of the appellant's rights of defence.

This ground relates to paragraphs 332 to 339 of the judgment under appeal. In its reply of 19 January 1998 to a written question put by the Court of First Instance and at the hearing before that Court, the Commission submitted that the information exchange systems in issue did not constitute a separate infringement of Article 65(1) of the ECSC Treaty but formed part of wider infringements. However, after having examined the contested decision in paragraphs 333 to 338 of that judgment, the Court of First Instance concluded, in paragraph 339, that those systems had been treated as a separate infringement in that decision and that, therefore, the arguments raised by the Commission in its reply and at the hearing had to be rejected in so far as they sought to alter that legal assessment.

The appellant complains that, in the judgment under appeal, the Court of First Instance misinterpreted the contested decision by reformulating it, altering its content and attributing to it a finding which it did not contain. Accordingly, that Court exercised improperly its function of reviewing the legality of a measure imposing sanctions. In the appellant's view, it ought to have annulled the fine wrongly imposed in respect of an infringement which, according to the Commission itself, was not separate in nature.

The Commission contends that this ground is inadmissible as it has been raised for the first time before the Court and is different from that raised at first instance, as is clear from paragraph 324 of the judgment under appeal. Moreover, the Commission takes the view that it is unfounded. The Court of First Instance did not in any way reformulate and alter the content of the contested decision but merely rejected the explanations provided by the Commission in its observations and at the hearing.

Findings of the Court

The appellant does not establish, and, moreover, does not seek to establish, how the Court of First Instance infringed Community law by interpreting itself the contested decision rather than relying on the explanations provided by the Commission's representatives in the reply of 19 January 1998 and at the hearing.

It is sufficient to point out in that connection that, where the Court of First Instance rules on an application for annulment of a Community measure, it must interpret that measure itself.

In so far as the ground of appeal can be construed as a complaint that the Court of First Instance distorted the contested decision, the Court observes that, in paragraphs 333 to 337 of the judgment under appeal, the Court of First Instance analysed in depth recitals 263 to 271 of the grounds for that decision. However, the Court cannot, on the basis of a comparison of those paragraphs of the judgment under appeal with those recitals of the contested decision, find that the Court of First Instance distorted the content of that decision.

It follows that the fifth ground of appeal is unfounded.

The sixth ground of appeal

The sixth ground of appeal alleges infringement of Community law as regards the choice of turnover used to calculate the fine and as regards the conversion of that turnover into ecus.

The appellant takes the view that the Court of First Instance was wrong to uphold, in paragraph 474 of the judgment under appeal, the legality of taking into account, for the purpose of calculating the fine, the turnover achieved during the last year of the infringement, that is to say, 1990, even though the Commission ought to have used the turnover achieved in the year prior to the date of adoption of the contested decision, for which consolidated accounts were available to it, namely, in the appellant's case, 1992. To take 1990 as the reference year is contrary to the principle of legal certainty and to the principle of equity.

Moreover, the appellant points out that, instead of fixing the fine in Spanish pesetas and converting it to ecus at the official exchange rate applicable on the day before the contested decision, the Commission converted its turnover into ecus at the exchange rate applicable in 1990. Given the difference between the Spanish peseta/ecu exchange rate in 1990 and that of the day before the contested decision, this method increased by ECU 800 000 the financial burden imposed on the appellant as a result of the fine.

The appellant claims that the Court of First Instance was wrong to justify the legality of the conversion method used by the Commission by relying, in paragraph 471 of the judgment under appeal, on the judgment in Case T-334/94 Sarrió v Commission [1998] ECR II-1439 (paragraph 394 et seq.). In the appellant's view, the principle of equity requires that the least onerous exchange rate be applied to the person concerned (Case 78/77 Lührs [1978] ECR 169, paragraph 13).

The Commission submits that this ground of appeal is inadmissible in its entirety because it merely restates a plea raised before the Court of First Instance.

The Commission further claims that the ground is unfounded. Application of the principle of equity, in the form which the appellant seeks, would entail the arbitrary determination of fines on a case-by-case basis. This fails to take account of the principle of legal certainty, under which it must be possible to determine with some degree of certainty the level of fines which may be imposed to penalise particular conduct. The taking into account of the exchange rate and the turnover of the last year in which the infringement was committed guarantees that a uniform procedure is applied to all accused persons. In addition, that method best takes account of any benefits derived by those committing the infringement. The application of a different method would not allow the conduct complained of to be penalised in a way which is proportionate having regard to the time at which that course of conduct was adopted and its effects.

Findings of the Court

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).

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).

Moreover, the appellant does not show how the use of that reference year infringed the principles of legal certainty and equity. On the contrary, the use of a reference year common to all the undertakings which participated in the same infringement means that each undertaking is assured of being treated in the same way as the others since the penalties are determined in a uniform manner without account being taken of extrinsic and uncertain factors which may have affected turnover between the last year of the infringement and the time when the decision imposing the fine was adopted. Moreover, the fact that the reference year was part of the infringement period made it possible to assess the scale of the infringement committed in the light of the economic reality as it existed during that period.

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).

Next, Article 65(5) of the ECSC Treaty does not prohibit the fixing of a fine in ecus. On the contrary, the use of a common currency to fix the fines imposed on undertakings which have taken part in the same infringement is justified by the need to penalise those undertakings in a uniform manner.

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).

It follows that, in paragraphs 470 to 477 of the judgment under appeal, the Court of First Instance properly justified the method used by the Commission to calculate the fine.

The sixth ground of appeal is therefore unfounded.

It follows from all of the foregoing that the appeal must be dismissed.

Costs

On those grounds,

THE COURT (Fifth Chamber)

hereby:

1. Dismisses the appeal;

2. Orders Empresa Siderúrgica SA (Ensidesa) to pay the costs.

WatheletEdward La Pergola

Jann von Bahr

Delivered in open court in Luxembourg on 2 October 2003.

R. Grass M. Wathelet

Registrar President of the Fifth Chamber

1: Language of the case: Spanish.

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