C-185/95

IV — Discussion of the pleas in support of the appeal I - 8429

A — First plea: failure to give judgment within a 'reasonable time' I - 8429

1. Admissibility of the plea I - 8429

(a) The provision relied upon I - 8429

(b) The nature of'theplea I - 8432

(c) The measure sought I - 8433

2. The obligation on the Court of First Instance to 'examine the case' and the 'fair hearing' principle I - 8446 3. The principles of 'unfettered assessment of evidence' and 'benefit of the

doubt' 1-8449

4. Reasons for refusing offers of evidence I - 8449

D — Fourth plea: breach of the rules concerning offers of evidence out of time I - 8450 E — Fifth plea: infringement of the right of access to the file I - 8452

* Original language: French.

I - 8422

5. Application of Article 85(1) of the Treaty to the quota and price agree­ ments for the Benelux market I - 8468

G — Seventh plea: breach of Article 15 of Regulation No 17 I - 8472

1. No separate assessment of mitigating and aggravating circumstances .. I - 8473

2. The allegation that BStG took part in the structural crisis cartel I - 8476

3. BStG's lack of awareness that the structural crisis cartel and the conduct

aiming to protect it were illegal I - 8478

(f) No justification for taking account of total turnover I - 8483

H — Alternative claim for reduction of the fine to a reasonable amount I - 8484

Conclusion I - 8484 I - 8423

OPINION OF MR LÉGER — CASE C-185/95 P

1. By this appeal Baustahlgewebe GmbH — catalogue mesh (Listenmatten), ('BStG' or 'the appellant'), a company incor­ porated under German law, is asking the Court to set aside the judgment of the Court of First Instance of 6 April 1995 in Baustahl- gewebe v Commission 1 'the judgment 3 appealed against' or 'the judgment'), partly — tailor-made mesh (Zeichnungsmatten). dismissing its application for the annulment of Commission Decision 89/515/EEC of 2 August 1989 relating to a proceeding under 2 Article 85 of the EEC Treaty ('the contested Decision' or 'the Decision') and fixing the fine imposed on the appellant at ECU 3 mil­ lion. 4. In paragraphs 2 and 3 of the judgment the Court of First Instance found as follows:

I — Facts and procedure

its operation (points 126 and 127 of the June 1985 between Michael Müller 4and Decision).' Mr Marie, a director of Tréfilunion ...'. The Court of First Instance adds that 'according to the Decision ... the conces­ sions made by each side at the meeting were adhered to, as evidenced by the facts that neither Tréfilunion nor the other French producers complained to the Com­ mission about the German structural crisis 5. In the contested Decision, the Commis­ cartel and that the applicant's works at sion fined 14 producers of welded steel mesh Gelsenkirchen (Germany) did not export for having, in the words of Article 1 of the catalogue mesh to France' and that 'any Decision, 'infringed Article 85(1) of the EEC future export business was to be linked to Treaty by participating from 27 May 1980 5 a delivery quota'; until 5 November 1985 on one or more occa­ sions in one or more agreements or concerted practices (hereinafter referred to as "agree­ ments") consisting in the fixing of selling prices, the restricting of sales, the sharing of markets and in measures to implement these agreements and to monitor their operation'.

— with regard to 'the agreements intended to protect the German structural crisis cartel against uncontrolled imports of welded steel mesh, ... having participated in an agreement with Sotralentz con­ cerning quota arrangements for exports 6 6. With regard to the facts giving rise to the by the latter to Germany'; action before the Court of First Instance, it appears from the judgment that the contested Decision criticises the appellant in particular for:

— '[in the] desire to restrict or regulate on the Benelux market: imports into Germany ...', concluding two supply contracts of 24 November 1976 and 22 March 1982 with Bouwstaai Roer­ mond BV (later Tréfilarbed Bouwstaai Roermond) and Arbed SA afdeling Ned­ — 'having participated in agreements between erland. 'In those contracts, BStG took the German producers exporting to the over exclusive sales in Germany, at a price Benelux States and the other producers to be fixed according to specific criteria, selling in the Benelux States concerning of a specified annual volume of welded observance of prices fixed for the Benelux steel mesh from the Roermond works. market. According to the Decision, those Bouwstaai Roermond BV and Arbed SA agreements were decided on at meetings afdeling Nederland undertook, for the held in Breda and Bunnik between August term of those contracts, not to make any 1982 and November 1985 ...' 11'The Deci­ 8 direct or indirect deliveries to Germany'. sion ... also criticises the applicant for 'The Decision ... states that the exclusive having participated in agreements between distribution agreements did not satisfy the the German producers, on the one hand, conditions of Commission Regulation and the Benelux producers (the "Breda (EEC) No 67/67/EEC of 22 March 1967 club"), on the other, consisting in the on the application of Article 85(3) of the application of quantitative restrictions to Treaty to certain categories of exclusive German exports to Belgium and the Neth­ dealing agreements (OJ, English Special erlands and communication of export fig­ Edition 1967, p. 10, ...), at least since the ures of certain German producers to the 12 making of the wider arrangements on trade Belgo-Dutch group.' between Germany and Benelux. Since that date those agreements had to be regarded as part of a comprehensive market-sharing arrangement ...'; 9

12. The Court of First Instance gave judg­ ment annulling Article 1 of the contested Decision 'as regards the finding therein that the [appellant] participated in an agreement 9. BStG claimed that the Court should annul with Sotralentz SA to set quotas for the lat- the provisions of the Decision applying to it ter's exports to the German market and the or, alternatively, that the fine should be reduced finding that an agreement existed between the to a reasonable amount, and that the Com­ [appellant] and Tréfilunion to make their mission should be ordered to pay the costs. future exports subject to quotas'. Conse­ BStG also sought authorisation to examine quently, the Court of First Instance reduced certain documents relating to the procedure the fine of ECU 4.5 million to ECU 3 mil­ before the Commission and to the relations lion and dismissed the application with regard between the Commission, the Bundeskartel­ to the remaining claims. lamt and the representatives of the German cartel association concerning the structural crisis cartel.

III — The appeal

10. The Commission claimed that the Court of First Instance should dismiss the applica­ tion as unfounded and order the appellant to pay the costs. 13. With its appeal, BStG asks the Court of Justice, first, to set aside the judgment of the Court of First Instance in so far as it fixes the fine at ECU 3 million, dismisses its applica­ tion and orders it to pay part of the costs and, second, to annul Articles 1, 2 and 3 of 11. In support of its application the appellant the contested Decision in so far as they apply put forward three pleas in law alleging breach to the appellant and were not annulled by of the rights of the defence, infringement of that judgment. Article 85(1) of the Treaty and infringement of Article 15(2) of Council Regulation No 17. 14

— infringed the appellant's right to legal pro­ tection within a 'reasonable period' because of the excessive length of the proceedings; — contravened Article 15 of Regulation No 16 17 with regard to fixing the fine.

— infringed the principle of 'orality' in that the judgment was delivered 22 months after the closure of the oral procedure;

17. I shall examine each of these pleas in the — disregarded the principles applying in the order given above, and as the first is the most matter of proof; important I shall consider it at some length.

15 — French translation of the appeal, p. 2. 16 — Appeal, paragraph 6.

I - 8428

BAUSTAHLGEWEBE v COMMISSION

23. One of the questions raised by this plea 20. The Commission does not agree that the concerns the Court's jurisdiction to take cog­ length of the procedure was excessive. nisance of the principle on which it has based.

I - 8429

OPINION OF MR LÉGER — CASE C-185/95 P

24. With regard to the principles of the Con­ 26. It is clear from the Court's case-law that vention, the Court observed quite recently the Convention lays down rules all of which that, 'as the Court has consistently held (see, are not merely safeguarded in Community in particular, Opinion2/94 [1996] ECR I-1759, law by the Court. Those rules also guide the paragraph 33), fundamental rights form an Court in formulating fundamental principles integral part of the general principles of Com­ which are of the utmost importance in this munity law whose observance the Court area. ensures. For that purpose, the Court draws inspiration from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories. The Convention has special significance in that respect. As the Court has also held, it follows that measures are not acceptable in the Community which 27. It must also be observed that the consti­ are incompatible with observance of the tutional traditions common to the Member human rights thus recognised and guaranteed States make a substantial contribution to the (see, in particular, Case C-260/89 ERT [1991] development of these fundamental principles. ECR 1-2925, paragraph 41).' 17

I - 8430

BAUSTAHXGEWEBE v COMMISSION

29. The existing case-law on the subject has principle. The Court of First Instance, like in particular been developed in cases con­ the national courts and the other Community cerning respect for the principles of the Con­ institutions, is subject to the principles of the vention in connection with certain Commu­ Convention. nity administrative procedures in the area of, 20 for example, the civil service and competi­ 21 tion law, and cases concerning the interpre­ tation of Community law in the light of those 2 principles. 2 In particular, Article 6 of the Convention has been applied in quite a number 23 of cases.

31. Article 6 of the Convention enshrines the right of any person to a 'fair ... hearing within a reasonable time', which is available where a court is required to determine 'his civil rights and obligations or ... any criminal charge 30. In the present case it is not a matter of against him'. It cannot be disputed — and the ensuring respect for the principle of a 'fair Commission does not dispute — that, in the hearing' on the part of a Member State or a light of the case-law of the European Court Community institution in relation to a dis­ of Human Rights and the opinions of the puted measure. The issue in the present appeal European Commission of Human Rights, the is whether judicial proceedings before the present case involves a 'criminal charge'. 25

I - 8431

OPINION OF MR LÉGER — CASE C-185/95 P

32. Therefore, the principle pleaded by BStG ment or a fine, or whether the amount of the is one of those which it is the Court's task to fine must be paid by the party concerned from ensure is respected. his own resources which are intended to meet his everyday needs, an excessive delay in giving judgment cannot be tolerated in either case. In my opinion, these differences are rel­ evant only to the question whether the length of the procedure is 'reasonable'. They also lead to sanctions or redress suited to the 33. For the sake of completeness, let me add nature of the offence. that, although it has not yet been positively 26 established by the Court , I think there is no doubt that Article 6 applies to legal per­ sons because it is clear from the case-law of the European Commission of Human Rights that the pronoun 'everyone' covers legal per­ 27 sons as well as natural persons. 36. Therefore everyone must be entitled to have his case disposed of within a 'reasonable time'.

34. Furthermore, legal persons do not differ from natural persons to such an extent that their safeguards must be limited, for the proper administration of justice, in actions to which they are parties. (b) The nature of the plea

(c) The measure sought

39. However, I take the view that this is a question of law because the Court will not confine itself to confirming a series of facts. The Court will have to distinguish the facts according to their respective influence on the length of the period in question, after car­ 43. With regard to the measure sought by the rying out an exercise consisting in either clas­ appellant if it were found that the Court of sifying them as matters which may indicate First Instance had contravened Article 6 of shortcomings in the administration of justice the Convention, I would merely observe that, or accepting that they may justify the length in principle, this is within the normal juris­ of time taken. In determining in this way diction of the Court. Article 54 of the Statute whether the duration of the proceedings was provides that, if the appeal is well founded, reasonable or unreasonable, the Court makes the Court is to quash the decision of the a legal assessment which produces legal effects. Court of First Instance and the former may then give final judgment where the state of the proceedings so permits, or refer the case back to the Court of First Instance for judg­ ment.

40. Furthermore, the period of time in ques­ tion is attributed to the Court of First Instance itself, so that the Court of Justice is not being asked to review an assessment or a legal char­ acterisation of the facts by that Court and to 44. Therefore the Court of Justice is perfectly substitute its own. able to reduce or even discharge the fine imposed on any party or, if it does not have the necessary facts, it may refer the case back to the Court of First Instance for this pur­ pose.

46. First of all, it is clear that, were the Court to find that the time taken by the Court of First Instance in giving judgment in the action is not 'reasonable' within the meaning of 49. Consequently, the Court of Justice is the Article 6 of the Convention, this could not only court which could take effective action lead to referring the case back to the latter on a breach of Article 6 of the Convention by Court. After quashing the judgment appealed the Court of First Instance. against, the Court of Justice could not permit the further time necessary for re-examination of the case to be added to the period which has elapsed since the matter was first brought before the Court of First Instance. The remedy would actually be worse than the ailment. 50. Therefore, assuming that the length of time in question does not meet the require­ ments of the Convention, the next question is what action the Court could take on BStG's application for the fine to be reduced or remitted.

inal courts differ from one Member State to 55. It does not seem to me that modifying another. They often act purely on the direc­ the penalty or taking steps with regard to the tions of the judge, there being no basis in actual prosecution is a suitable remedy for constitutional law or even, sometimes, in exceeding time limits, quite apart from the statute, for the steps they take. In some States fact that the rules are not the same in all the the prosecution is ruled inadmissible (Federal Member States. Republic of Germany, Kingdom of Belgium and Kingdom of the Netherlands) or with­ drawn (Kingdom of Belgium and Ireland). The penalty may also be reduced (Federal Republic of Germany, Kingdom of Belgium, Kingdom of Spain, Republic of Finland, Grand Duchy of Luxembourg, Kingdom of the Neth­ erlands and Kingdom of Denmark, in the case 56. If the appellant's plea is indeed based on of imprisonment) or suspended (Federal a point of law, I do not think it is of the kind Republic of Germany and Kingdom of Bel­ which permits the sanction imposed by the gium). In the Kingdom of Spain, the defen­ Commission, as partly upheld by the Court dant may petition for a pardon where the of First Instance, to be called into question. principle of 'reasonable time' has not been adhered to.

57. In so far as sanctions imposed are based on grounds of Community law, they can be reviewed in any case following reconsidera­ tion of those grounds. It is because the Court of First Instance misapplies the law applicable 53. However, in most Member States a breach to the case that the Court of Justice has the of the principle does not affect the validity of right to quash the judgment entirely or in the proceedings in question. It merely enables part and thus to remit or reduce the fine 28 an action for compensation to be brought imposed. The interpretation of the law given before the competent court. by the Court of Justice when exercising its power of review leads to a different assess­ ment of the degree of liability of the party in question and may be such as to call into question the penalty imposed. Therefore a connection exists between the subject-matter

59. Furthermore, as this complaint has no connection with any defective interpretation of the Community law applicable to the case, a re-examination of the matter would in no 61. For all these reasons I conclude that way answer the plea that the proceedings were BStG's plea is invalid and consequently I not contested within a 'reasonable time'. The propose that the Court dismiss it without absence of any connection means that the further consideration. Court cannot, in default of a provision expressly authorising it to do so, recognise a right to plead that the proceedings were not conducted within a 'reasonable time' in order to reduce or remit, by amending the judg­ ment appealed against, the fine imposed on BStG. I think it would be difficult to identify criteria for choosing between remitting and reducing the fine or, if it were reduced, the criteria necessary for determining the amount of the fine, unless there were some method of evaluating the damage, which could then be 62. However, it seems to me impermissible, deducted from the fine. and even legally unacceptable, to hold that Article 6 of the Convention lays down a rule with which it is the Court's task to secure compliance while, at the same time, proposing that the Court should not give a ruling on a plea based on that Article, without men­ 60. However, this course would entail two tioning (although there is no requirement to main drawbacks. As it is based on the idea of do so) the remedy which, in my view, could compensation, it would require the amount make up for the inadequacy of the relevant of the redress to be deducted from a penalty. provisions.

3. Action for liability as the appropriate SGEEM and Etroy v EIB case, Advocate remedy General Gulmann contended that the word 'institutions' in Article 215 refers to Article 4 of the Treaty, which lists the Community 30 institutions. However, the Court went fur­ ther in finding that the term should not be understood as referring only to the institu­ 31 tions listed in Article 4. Consequently, it docs not appear that the Court of Justice or 63. As an appeal is not an effective response the Court of First Instance should be regarded 32 where proceedings are not conducted within as being outside the ambit of Article 215. a 'reasonable time', I think an action for com­ pensation must represent the means for pre­ venting this principle of the Convention from becoming a dead letter when it is raised against proceedings before the Court of First Instance. 66. In the procedural respect, however, there is a serious difficulty in that, under Article 3(1) of the abovementioncd Decision 88/591, as amended by Article 1 of the Council Deci­ 33 sion of 8 June 1993, the Court of First Instance itself has jurisdiction to hear such actions when they are brought by natural or 64. Let me outline the factors which, in my legal persons. opinion, would permit the Court, if neces­ sary, to rule as admissible an action for com­ pensation on the ground that the Court of First Instance had breached the rule requiring proceedings to be conducted within a 'rea­ 67. Again without prejudging the issue sonable time'. whether the time taken by the Court of First Instance to give judgment was unreasonable or its own share of the responsibility in the present case, it is not feasible to entrust a judicial body with the task of determining whether its own conduct is wrongful or unlawful. This would unquestionably be con­ trary to the principle of an impartial tribunal 65. The action for compensation exists in the laid down in Article 6(1) of the Convention. common legal tradition of the Member States and in Community law. As we have seen, the national legal systems recognise the principle of compensation for the damage suffered by 29 — Case C-370/89 [19923 ECR I-6211. the party concerned as a result of a breach of 30 — Point 14 of the Opinion. 31 — See paragraph 16 of the judgment. the 'reasonable time' rule. Article 215, second 32 — For the problems arising from the principle of the liability paragraph, of the Treaty allows an action to of the Community Courts, see B. du Ban, 'Les principes be brought for the non-contractual liability g énéraux communs et la responsabilité non-contractuelle de a Communauté', Cahiers de Droit Européen, 1977, No 4, p. 397. of the Community arising from damage caused 33 — Décision 93/350/Euratom/ECSC, EEC, amending Decision by its institutions. In his Opinion in the 88/591 (OJ 1993 L 144, p. 21).

70. Although the jurisdiction of the Court of Justice in this area necessarily leads to the 68. Furthermore, it is clear from the pre­ examination by a single court of the plea in ambles to Decisions 88/591 and 93/350 that question, it is accepted that a two-tier judicial the establishment of a second court, i. e. the system, as understood in the Community Court of First Instance, is designed to improve legal order and in general, ensures that justice the judicial protection of individuals. It is is done. However, this procedural safety net, hardly possible to envisage a more serious designed to reduce the risk of mistakes in law breach of this requirement than by allowing by means of a review of the law applied by one of the parties to act as judge in its own the Court of First Instance, must not deprive case. the parties of the essential safeguard of the impartiality of the court before which they bring their action. It cannot be denied that the two-tier court system is only one aspect of judicial protection. Therefore the principle of impartiality, which precludes the assess­ 69. Therefore Article 3 of Decision 88/591 ment by a court of its own conduct, must in must be read in the light of the principle of this case take precedence. impartiality laid down by the Convention, particularly as it is difficult to imagine that the Community legislature could have con­

76. These are the steps which could be con­ templated to ensure the effectiveness of Article 6 of the Convention in regard to a 'reason­ 73. The second paragraph of Article 215 lays able time'. down the principle of the Community's non­ contractual liability by referring to the 'gen­ eral principles common to the laws of the Member States'. As we have seen, most Member States allow compensation for damage arising from disregard of the right to B ·— Second plea: infringement of the so-called obtain judgment within a 'reasonable time'. principle of 'orality'

I - 8439

OPINION OF MR LÉGER — CASE C-185/95 P

left by the hearing and, therefore, BStG con­ 82. In the wider sense, the principle of orality siders that this irregularity in the procedure comprises the immediacy of the proceedings, must lead to the judgment being set aside. which means that the court must have direct and personal contact with all those taking 36 part in the hearing.

79. The Commission considers that the oral element does not have primacy in the Com­ 83. The concept of 'immediacy' (or 'Unmit­ munity law on the organisation of the courts telbarkeit' in German law, 'immédiateté' in and that this plea must be dismissed. French law, 'inmediación' in Spanish law and 'imediaçao' in Portuguese law) takes full account of the requirements of the principle of orality where it calls for a direct relation­ ship between the court and the party con­ cerned. 'Immediacy' in physical terms, which means that the court cannot interpose an intermediary between itself and the party or 80. The principle of orality, as recognised in his representative, presupposes that a judge the legal systems of the Member States, appears who was not present at the hearing cannot to have a number of different aspects. contribute to the decision in the case. Article 33(2) of the Rules of Procedure of the Court of First Instance provides that 'only those Judges who were present at the oral proceed­ ings may take part in the deliberations'.

I - 8440

BAUSTAHLGEWEBE v COMMISSION

elapse between the date of the hearing and the damage which it causes cannot be con­ the delivery of judgment, so that the benefit fused with the penalty. of the hearing was lost, so to speak, as the memory of it faded in the minds of the judges.

87. It follows that a breach of the two prin­ ciples does not produce the same conse­ quences. Contrary to what is possible in the case of 'reasonable time', and as in the case of 85. Because of its temporal dimension, this other procedural irregularities which may aspect may appear to relate to the issue of affect a plaintiff's interests, the proceedings 'reasonable time'. Furthermore, the time taken may be annulled and reopened where his by a court to give judgment is a factor which interests have not been irremediably dam­ is taken into account by the Strasbourg Court aged. to assess whether a period of time is 'reason­ able'. It is one of the aspects of the criterion, used by that Court, of the effect of the con­ duct of the competent authorities, in this case the courts, on the length of the period in 37 question. 88. However, before giving a ruling on the plea in question, the Court must state its views on the existence and, if necessary, the force in Community law of the principle of 'immediacy', which means that its place in the Community legal order must be deter­ mined.

be counted among the general principles of 93. However, two qualifications must be law the observance of which is ensured by made. Firstly, the rules which give effect to the Court. the principle of 'immediacy', unlike the 'rea­ sonable time' principle in certain Member States, are not constitutional but, rather, statu­ tory. They are normally included in codes of civil, criminal or administrative procedure. Secondly, their effectiveness is not systemati­ cally guaranteed because, in addition to those States which do not specify a maximum time- limit, there are others which do not attach 91. As I have already stated, the Convention any penalty to failure to meet the specified does not distinguish the question of the time time-limit, at least not by invalidating the taken by a court to give judgment from the proceedings in question (United Kingdom of general problem of 'reasonable time'. More­ Great Britain and Northern Ireland, Kingdom over, the requirements of Article 6 of the 39 of Belgium and Kingdom of Denmark). Convention relate only to a public hearing. However, there is no question arising with regard to the public nature of the hearing in the present case.

I - 8442

BAUSTAHLGEWEBE v COMMISSION

95. Of course, care must be taken to ensure 98. The appellant contends that the Court of that the absence of a rule laying down a First Instance fundamentally disregarded the maximum period within which a judgment principles relating to evidence, concerning must be delivered does not amount to an both its presentation and its assessment. The acceptance that there is no time-limit what­ Court of First Instance is said merely to have ever to the length of deliberations or lead to verified that the Commission had 'legally suc­ the dismissal of any appeal against proceed­ ceeded' in producing proof of certain allega­ ings which could be described as intermi­ tions so as to support the decision in ques­ nable. On this point it is sufficient to observe tion. The appellant also claims that the Court that it is precisely the 'reasonable time' prin­ of First Instance did not ascertain whether ciple, already examined, which aims to meet the evidence produced by the Commission this requirement. could have been interpreted differently or whether the evidence offered by the appellant could have cast doubt on the Commission's evidence.

96. Therefore I must conclude that the plea relating to the principle of orality is inadmis­ sible.

99. The appellant's plea has five limbs:

C — Third plea: breach of the principles applying in the matter of evidence

1. The criterion for examination by the Court of First Instance

— the offers of evidence by BStG were refused on inadequate grounds, contrary to the right to a fair hearing.

102. First of all, let me say that the appellant has no justification for saying that the Court of First Instance did not carry out an adequate examination of the facts which it put to it. It is clear from paragraph 61 of the contested judgment concerning the 1985 agreement between BStG and Tréfilunion, paragraphs 84 to 86 concerning the agreements on quotas 100. The Commission considers it necessary and prices with the Benelux producers, para­ to point out that an appeal to the Court of graphs 111 to 113 concerning the agreement Justice may be based only on pleas alleging between BStG and Tréfilarbed, and para­ infringement of rules of law, excluding the graphs 125 and 126 concerning quota and assessment of facts, and that the criterion used price agreements on the Benelux market, that by the Court of First Instance to assess the the Court gave a complete account of BStG's facts falls logically within the latter category. arguments. The Commission disputes the appellant's argu­ ment that the Court of First Instance must always allow requests for measures of inquiry and observes that the measures of procedural organisation taken by the Court, in the form of questions to the appellant, show that the Court did not neglect to examine the appel­ 103. In its reply to the Commission, BStG lant's evidence. makes it clear that the issue is not the assess-

I - 8444

BAUSTAHLGEWEBE v COMMISSION

107. Let me add, although it is not really necessary, that BStG's argument may also be understood as insisting on a requirement that 105. Therefore it is necessary to apply the a more complete statement should be given of settled case-law of the Court of Justice which the reasons on which the judgment is based, states that it is clear from both Article 49, including observations on alternative explana­ first paragraph, of the EC Statute of the Court tions, favourable to the applicant, of the facts of Justice, Article 168a of the Treaty and submitted to the Court of First Instance. The Article 51 of that Statute, and also from Article Court of First Instance, it argues, has an obli­ 112(1)(c) of the Rules of Procedure of the gation to show that it did not fail to examine Court of Justice, that the latter does not have the facts in the light of the explanations given jurisdiction to make findings as to the facts by one of the parties. or, in principle, to examine the evidence used by the Court of First Instance in support of those facts. According to the same case-law 42 — See, in particular, Case C-136/92 P Commission v Brazzelli relating to the abovementioned provisions, it Lualdi andOthers [1994] ECR I-1981, paragraphs 47 to 49 and 66; the order in Case C-19/95 P San Marco v Commis- is for the Court of First Instance alone to sion [1996] ECR I-4435, paragraphs 36 to 41; Blackspur DIY assess the value which should be attached to and Others v Council and Commission, cited above, para­ graph 29; and the order in Case C-55/97 P AIUFFASS and AKT v Commission [1997] ECR I-5383, paragraphs 24 and 25. 43 — Sec, in particular, Case C-53/92 P Hilti v Commission [1994] ECR I-667, paragraph 42, and Blackspur, cited above, para­ 41 — Sec paragraph 36 of the appeal. graph 29.

109. However, it seems to me excessive, where the reasoning of the judgment is based on detailed facts, as in the present case, and not on assumptions, to require the Court of First 112. According to BStG, these principles Instance to indicate why it formed the view require the Court of First Instance to allow that the circumstances adduced by one party offers of evidence, save in certain limited cases to throw a different light on the facts in issue which have not been shown to exist here. It lacked persuasive power. It cannot be inferred, considers that the refusal of its offers to pro­ from the fact that there was no formal discus­ duce witnesses and to appear personally sion by the Court of First Instance of the amounts to a premature assessment of evi­ explanations offered by one party, that those dence, which is incompatible with the prin­ matters were not examined, since the Court's ciples of the rule of law. BStG adds that, even reasoning is based on detailed circumstances if no offers had been made, the principle that and implicitly, but necessarily, excludes the in criminal proceedings a court must enquire appellant's arguments. into the facts without being bound by the parties' applications means that it must of its own motion extend its examination to all the evidence, and that this obligation to examine the case of its own motion means also that the Court of First Instance ought to have attempted to obtain the best possible evi­ dence.

113. First of all, it must be borne in mind 117. For example, in the Vidai v Belgium that the Court of Justice has jurisdiction to judgment of 22 April 1992, the Strasbourg review observance of the general principles of Court observed that 'Article 6§(3)(d) ... leaves law and the rules of procedure in relation to it to [the national courts], again as a general the burden of proof and the taking of evi­ rule, to assess whether it is appropriate to call 46 dence. witnesses, in the "autonomous" sense given to that word in the Convention system ... it "does not require the attendance and exami­ nation of every witness on the accused's behalf: its essential aim, as is indicated by the words 'under the same conditions', is a full 48 'equality of arms' in the matter" ...', 114. Apart from that derived from Article 6 of the Convention, the principles on which the appellant relies are not embodied in spe­ cific rules which would make it possible to ascertain their meaning and effect and to estab­ lish whether they have binding force. I must 118. Therefore it appears that the right to therefore confine my discussion to the provi­ obtain an examination of a witness is condi­ sions of the Convention. tioned by the 'fairness' of the proceedings, which may be deemed to be affected in a case in which the testimony of a witness requested by the person charged is refused where it might have given the court evidence capable of countering the testimony of a prosecution witness. 115. Article 6(3)(d) provides that 'Everyone charged with a criminal offence has the fol­ lowing minimum rights:... to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as 119. In the present case it must be held that witnesses against him'. 47 the Court of First Instance did not carry out the examination of witnesses in a way which indicates an arbitrarily selective assessment of the testimony necessary for its decision.

125. In my opinion, therefore, it was with a 122. In this respect the Court of First Instance view to the proper administration of justice appears to be justified in making any decision and in compliance with the relevant rules that to accept offers of evidence subject to the the Court of First Instance was able to accede condition that the party concerned should to the requests for personal appearance and specify grounds likely to justify the examina­ for the hearing of witnesses without pre­ 51 tion requested. judging the main issue, as the Court guarded against any risk of an arbitrary decision by examining the reasons for the offers of evi­ dence, subject to giving sufficient grounds in 49 — Emphasis added. 50 — See the order in Case C-140/96 P Dimitriadis v Court of law for the decision on the main issue, as we Auditors [1997] ECR 1-5635, paragraphs 27 and 28. The shall see later, when discussing the plea alleging Court of Justice has also ruled that the Court of First Instance may refuse a request for an expert opinion on the breach of Article 85(1) of the Treaty. ground that the measure of inquiry requested 'would serve no useful function for the Court, which considers that it has received sufficient information from the entire course of the proceedings'. It is true that the plea was not immediately directed against that ground (see Case C-326/91 P De Compte v Parliament [1994] ECR 1-2091, paragraph 123). 52 — See paragraphs 13 and 14 of the judgment. 51 — See Case 35/67 Van Eiek v Commission [1968] ECR 329. 53 — See paragraph 29 of the Commission's statement in reply.

131. The reply to the argument that the Court of First Instance did not state sufficient rea­ sons for refusing BStG's offers of evidence is closely related to the Court's discretion to 128. As I have already said, it is for the Court assess the value of the evidence available to it. of First Instance, precisely by virtue of the In other words, if the Court considers that same discretion as that to which the appellant the probative value of the documents in the file is sufficient to persuade the Court, it must then — first and foremost —· state the grounds 54 — Point 105 above. justifying the decision on the main issue. If

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this condition is fulfilled, I consider that the lant's offers of evidence as being out of time Court can then refuse, with a brief statement in paragraphs 94, 120 and 138 of the judg­ of reasons, the offers of evidence made to it. ment.

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of evidence at the stage of the reply. The pur­ and, according to the appellant, this was not pose of this requirement is to enable the the case with regard to its offers of evidence. Court of First Instance to assess the merits of The appellant goes on to suggest that Article the reasons given for the delay and to decide 48(1) can be used only to refuse offers of new on the admissibility of such offers in full evidence in support of new facts. knowledge of the facts. This is because the offers are not only made at an advanced stage of the procedure, but they may also give rise to further delays in the course of the proce­ dure and new measures of inquiry may have to be ordered if the Court considers them necessary.

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144. As I have already mentioned, the appel­ before the Commission, all the documents lant does not relate to any specific rule the from the file that were of direct or indirect principles which it relies upon to challenge, concern to it and on which the statement of on grounds other than the abovementioned objections was based', provisions of Article 48, the refusal by the Court of First Instance to accept its offers of evidence. The appellant's suggested ques­ tioning of the validity of that rule requires at the very least that it should set out before the and that Court of Justice an argument with precise and specific references. As the appellant has not done so, it is sufficient to observe, once again, that there are no grounds for making distinctions between proceedings where 'the [appellant] has not produced any evi­ Article 48 itself does not do so. dence to show that other documents were relevant to its defence',

145. The plea alleging breach of the rules concerning offers of evidence out of time must therefore be declared inadmissible. which led the Court to conclude that

E — Fifth plea: infringement of the right of access to the file 'the [appellant] was enabled to put forward, as it wished, its views on all the objections made by the Commission against it in the statement of objections which was addressed 146. The appellant claims that the Court of to it and on the evidence supporting those First Instance infringed the rights of the objections, mentioned by the Commission in defence by refusing its request for access to the statement of objections or in the annexes the file. thereto, and that, accordingly, the rights of the defence have been safeguarded'.

in full knowledge of the circumstances and 149. BStG contends that the rule that the fully to provide for the [appellant's] Commission must make available to under­ defence'. takings involved in a procedure pursuant to Article 85(1) of the Treaty all the documents, whether in their favour or otherwise, which it has obtained during the course of the inves­ tigation applies not only to the administrative procedure, but also to the procedure before 148. Second, in dismissing the request for the the Court of First Instance. The Court's production of all the documents from the demand for evidence to show that other docu­ Federal Cartel Office and the documents con­ ments are relevant to the appellant's defence cerning the trilateral negotiations between the fails to take account of the fact that the appel­ Commission, the Federal Cartel Office and lant cannot judge the importance of a docu­ the representatives of the German undertak­ ment the existence and contents of which arc ings involved in the structural crisis cartel, the unknown to it. The importance attached to Court of First Instance observed that: the structural crisis cartel in the contested judgment means that the refusal of the request for the production of documents relating to the cartel amounts to an infringement of the rights of the defence. 'the [appellant] does not claim that, through not having such documents at its disposal, it was unable to defend itself against the objec­ tions raised against it and that it has adduced no evidence to show how such documents might contribute to determination of the present dispute' 150. I have previously had occasion to set out the reasons why I consider it essential to make it a fundamental principle of Commu­ nity law that an undertaking involved in a procedure under Article 85(1) of the Treaty and that should have a right of access to the entire file 59 during the administrative procedure.

152. Adherence to this principle during the 154. As the Court of First Instance observed administrative procedure has now been facili­ in paragraph 34 of its judgment, BStG received tated by the method described by the Com­ all the documents that were of direct or indi­ mission, with a view to greater transparency, rect concern to it and on which the statement in the Twenty-third Report on Competition of objections was based. Furthermore, in exer­ Policy of 5 May 1994: cising its absolute power to make factual findings, the Court observed, in paragraph 23, that the letter of 12 March 1987 from the Director-General for Competition accompa­ nying the statement of objections showed that 'the main documents concerning the case were 'With the Statement of Objections the Com­ enclosed and that, in order to avoid any dis­ mission sends a copy of all the documents on closure of business secrets, only the docu­ which it is relying to establish the existence ments of direct or indirect concern to the of an infringement. It also sends any docu­ addressee undertaking were enclosed', adding ments that, on the basis of careful examina­ that 'the undertakings were entitled, in order tion of the file, appear to go against or con­ to prepare their observations, to examine other tradict the Commission's case (known as documents held by the Commission, subject "exculpatory" documents). If an undertaking to obtaining prior authorisation'. thereafter makes a reasoned request that the Commission re-examine its file to determine whether it has any further documents which concern a specified matter that the under­ taking considers useful to its defence, the Commission will do so, and forward any such 60 documents.' 155. In order to explain why it did not request authorisation at that time, BStG states that it was not represented by a lawyer during the administrative procedure and that it did not examine the file since the complaints of which 153. In the present case I do not think that it had been notified did not hold it respon­ the requirements relating to the transparency sible. of the administrative procedure were disre­ garded, during the judicial proceedings, as a result of the decision of the Court of First Instance not to grant the request for access to the file.

statement of objections ..., that it was desig- entitled the Court of First Instance to require nated by name on several occasions in tne the appellant to produce 'evidence to show analysis contained in the factual part and in that other documents were relevant to its 63 the legal assessment of the statement of objec­ defence' before ordering the production of tions ... and that it received numerous annexes documents during the judicial proceedings. on which the Commission based its objec­ There can certainly be no question of requiring 62 tions'. The Court adds that the appellant the undertaking concerned to show the effects sent a letter to the Commission in which it which the document requested might have submitted written observations on the state­ had on the decision, which presupposes that ment of objections and asked for a hearing. the undertaking knew the detailed contents of the document. This would amount to imposing M on it an impossible burden of proof. The undertaking must merely provide the Court with information showing that the document could be useful for the purposes of the case. 157. It is clear from these numerous findings that BStG was directly implicated by the statement of objections. The Court of First Instance was therefore justified in finding that the fact that BStG did not appoint a lawyer was a matter of its own choice and that the administrative procedure was not affected by a breach of the rights of defence. It should be 159. For reasons of the proper administra­ added that the appellant does not deny that tion of justice, the right of access cannot be it refrained from enquiring as to the Com­ absolute. It must therefore not be possible for mission's position, in spite of the information the undertaking concerned to challenge the in the statement of objections, concerning the failure to disclose any document in the file extent of the appellant's involvement in the without previously identifying it and without offences in question. Consequently, the Court showing — to however limited an extent — of First Instance was justified in finding, how it will assist that undertaking. 65

161. In the BPB Industries and British Gypsum v Commission judgment the docu­ ments which were not disclosed were identi­ 164. With regard to the request to examine fied, so that the only point in dispute was the documents sent to the Commission by whether they 'fell within the categories of the Federal Cartel Office and those con­ documents which the Commission may legiti­ cerning the trilateral negotiations between the mately refuse to disclose by reason of their Commission, the Federal Cartel Office and 67 confidential nature'. the representatives of the German undertak­ ings involved in the structural crisis cartel, the grounds for refusing BStG's request do not 68 appear excessive.

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procedural documents, that this should be a standard mesh were interchangeable. Under preliminary requirement for a request by those circumstances, BStG indicates that it BStG for production. The Court of First had no interest in participating in agreements Instance was therefore entitled to find that concerning standard mesh. the appellant had failed to state reasons jus­ tifying access to these documents.

169. The appellant adds that it would not have been a suitable partner for entering into 166. The plea alleging infringement of the an agreement with producers from other right of access to the file must for these rea­ Member States because less than 2% of its sons be dismissed. production was exported to other Member States and 99% of those exports were of cata­ logue mesh. BStG complains that the Court of First Instance did not note this point and that it failed to examine the submissions based on the small size of the markets for catalogue F — Sixth plea: infringement of Article 85(1) mesh outside Germany and on the insignifi­ of the Treaty cant delivery flows between States.

167. According to BStG, the contested judg­ ment contravenes Article 85 of the Treaty by 170. The Commission considers that BStG is failing to assess certain facts put forward by wrongly trying to obtain a review by the BStG and by disregarding certain matters Court of Justice of factual findings. referred to in Article 85(1) and (3).

171. Regarding BStG's capacity to produce 1. Demarcation of the market other types of welded steel mesh, the Court of First Instance found that 'certain under­ takings to which the Decision relates, including the [appellant], have the capacity to produce different kinds of welded steel mesh, so that it may reasonably be concluded that 168. BStG contends that the Court of First there is some capacity in the industry to adapt Instance did not give sufficient grounds for the production plant in order to produce the part of its judgment dealing with the demar­ 70 different kinds of welded steel mesh'. cation of the market in question. BStG argues that, contrary to what the Court says, it never stated that it could manufacture standard mesh on its machines or that catalogue mesh and 70 — Paragraph 41 of the judgment.

176. The Court of First Instance also con­ firmed the existence of that interest in making it clear that this price situation favouring 174. Concerning the interchangeability of the interchangeability 'existed for part of the products, the Court of First Instance observed, 74 period covered by the agreements'. on the basis of factual findings and assess­ ments which are not open to review by the Court of Justice, that 'the prices of standard mesh and Listenmatten to which the [appel­ lant] refers ... are not far removed from each 72 other'. It added "that 'the use of standard

177. It must be added that the parts of the zi — See, in particular, De Compte v Parliament, cited above, judgment relating to the appellant's produc­ paragraph 123. With regard to the validity of a judgment tion of other types of mesh and to the inter­ certain grounds of which reveal an infringement of Com­ munity law, but the operative part of which appears well founded on other legal grounds, see the judgments in Case C-30/91 P Lesteile v Commission [1992] ECR 1-3755, para­ graph 28, and Case C-36/92 P SEP v Commission [1994] ECR I-1911, paragraph 33. 73 — Paragraph 40 of the judgment, emphasis added. 72 — Paragraph 39 of the judgment. 74 — Ibid.

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changeability of standard mesh and catalogue -standardised mesh, on one hand, and a group mesh are not supported by the appellant's consisting of catalogue mesh and tailor-mado alleged acknowledgement that they were true, mesh, on the other, is not the same as the contrary to what it claims. Commission's distinction between catalogue mesh and tailor-made mesh. At this point, therefore, the Court gave contradictory grounds for its judgment.

180. In paragraph 136 of the judgment the Court stated that 'there is a link between the It seems to me that BStG's distinction between prices of the various kinds of welded steel a group consisting of standard mesh and scmi-

76 — See point 173 and the related footnote, along with point 174 75 — Paragraph 38 of the judgment. et seq. of this Opinion.

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mesh, since the price of standard mesh has an legal standard the facts set out in the first influence on that of catalogue mesh and tailor- paragraph of point 140 of the Decision, namely made mesh ... As an exporter of catalogue that Tréfìlunion undertook not to lodge a mesh, the [appellant] must inevitably have complaint against the structural crisis cartel wished to maintain the prices of standard and that the [appellant] would refrain from mesh within a certain bracket, as compared exporting catalogue mesh to France for a with catalogue mesh'. period of two to three months' and the Court confirmed that 'the Commission was right to consider that they constituted an infringe­ ment of Article 85(1) of the Treaty'.

181. Above all, in replying to the appellant's complaints, the Court added that 'those exports [of catalogue mesh by BStG] were not particularly limited in absolute terms since ... they reached 18 000 tonnes in 1985, including 5 128 tonnes to other Member States of the Community of Six, reflecting export turnover within the Community of DM 4 184. BStG claims that the judgment fails to 969 032'. indicate why the agreements with Tréfìlunion constituted an infringement of Article 85(1) of the Treaty. The appellant complains that the Court of First Instance did not assess the facts by reference to the requirements laid down by that provision.

186. The Commission submits that the Court 189. From an analysis of two internal memo­ made a proper assessment of the contested randa, one by Mr Marie, a director of Tréfil­ facts by attaching to them the applicable rule. union, dated 16 July 1985, and the other by The Commission adds that some of the appel­ Mr Müller, dated 27 August 1985, the Court lant's arguments contain new factual allega­ concluded that 'the Commission has estab­ tions which cannot be considered at the appeal lished to the requisite legal standard that there stage, but this is disputed by BStG. was concertation between the [appellant] and Tréfilunion regarding the first two matters referred to'. The Court considered that 'Mr Marie's commitment not to lodge a com­ plaint against the German cartel must be seen as an agreement to follow a particular course of conduct towards a competitor in exchange for concessions from that competitor, forming part of an agreement in breach of Article 85(1) 78 of the Treaty'. 187. The appellant's complaint relating to the alleged breach of Article 85(1) of the Treaty must be construed as alleging a lack of rea­ soning in the judgment of the Court of First Instance or a failure to reply to submissions, which amounts to the same thing. 190. It is therefore clear that, by specifying the role played in the formation of the agree­ ment by Mr Marie's undertaking not to lodge a complaint against the structural cartel, the Court expressly replied to BStG's complaint concerning the Decision. The words used by the Court show that this conduct is not in itself anti-competitive but that it is one of the elements of the agreement which gave rise to 188. The Court of First Instance found that concessions in the form of a restriction of 'the Decision (point 140) holds that the [appel­ exports for a certain time. lant] engaged in general concertation with Tréfilunion to limit mutual penetration of their products in Germany and France, that conduct being manifested in three ways: Tré­ filunion would not lodge a complaint with the Commission against the German struc­ tural crisis cartel; the [appellant's] works in 191. With regard to the fact that the judg­ Gelsenkirchen would not export catalogue ment states no reasons relating to the absence mesh to France for a period of two to three of anti-competitive effects and of interference months; and, finally, the two parties agreed to with trade between Member States, which are make their future exports subject to quo­ said to result from Mr Müller's undertaking tas'. not to export, it must be observed that BStG

193. Furthermore, if such is BStG's inten­ tion, it cannot be allowed to submit new pleas before the Court of Justice. The Court's case-law consistently refers to Article 48(2) of 196. BStG complains that the Court of First the Rules of Procedure of the Court of First Instance erred in law in finding that the Com­ Instance, which prohibits the introduction of mission had established to the requisite legal new pleas in law in the course of the proceed­ standard that BStG took part in price and ings unless they are based on matters of law quota agreements with the Benelux producers or of fact which come to light in the course relating to the German market. The appellant of the procedure. The Court of Justice has contends that the Court failed to take account observed that 'to allow a party to put for­ of relevant essential facts on which the appel­ ward for the first time in proceedings before lant relied and which none the less cast doubt the Court of Justice a plea in law which it has not raised before the Court of First Instance would be to allow it to bring before the Court — whose appellate jurisdiction is limited — 79 — See Commission v Brazzelli Lualdi, cited above, paragraphs 57 to 59, and the orders in San Marco v Commission, cited a case of wider ambit than that which came above, paragraphs 49 and 50, and in Case C-49/96 P Pro- goulis v Commission [1996] ECR I-6803, paragraphs 31 to before the Court of First Instance. In an 33.

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BAUSTAHLGEWEBE v COMMISSION

202. It also follows from the relevant provi­ sions that it is for the Court of First Instance 80 — Sec, in particular, the judgments of the Court of Justice cited alone to assess the value which should be in footnote 42 and the orders in Case C-26/94 P X v Com- mission [1994] ECR I-4379, paragraphs 10 to 13, and in attributed to the documents produced before Koelman v Commission, cited above, paragraphs 52 and 53. it, provided that the general principles of law Sec, more specifically, the order in San Marco v Commis- sion, cited above, paragraphs 59 and 60. and the procedural rules on the burden of

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proof and the production of evidence are of First Instance erred in law in its assess­ observed. ment, nor has it specified the parts of the judgment which it seeks to have set aside. In reality, the appellant is not pleading the breach of any rule of law but is merely disputing the assessment of the facts by the Court of First Instance.

203. We have seen, when examining the other pleas, that the Court of First Instance observed the rules and principles applying in the matter of evidence. So far as the present plea is con­ cerned, BStG maintains none the less that the 206. The third limb of the sixth plea must Court misrepresented the evidence before it, therefore be declared inadmissible. but this is not proved by BStG inasmuch as it merely reproduces its original argument.

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when the steel industry of Luxembourg and 213. It is not disputed that an exclusive dis­ the Saar was being reorganised. tribution agreement with clauses prohibiting parallel imports or having comparable effects cannot be covered by Regulation No 67/67. The point in issue, however, is whether the agreements in question come within that cat­ egory on the ground that they prevent par­ allel imports. 209. The Commission submits that the appel­ lant's argument that parallel imports were not prohibited in the agreements is a question of assessment of the facts by the Court of First Instance and is therefore not open to appeal. The Commission adds that the submission concerning its supposed toleration of the 214. Only the first of these two problems agreements in question is a new plea which relates to the legal assessment of the facts. By must be declared inadmissible. taking this approach, the Court of First Instance shows that, because of the nature which they are found to have, the facts fall within a particular legal category from which legal consequences flow. When, further on, the Court assesses the facts, it carries out, in 210. I think I must agree with the Commis­ contrast, a concrete, detailed examination of sion. those facts in order to determine their salient characteristics. The Court's approach then requires a factual examination of the docu­ ments in the file in the sense that this approach takes account of the specific features of the case before it. In the present case, the Court of First Instance examined the provisions of 211. I have already mentioned the principles the agreements and the conditions for imple­ developed by the Court's case-law concerning menting them in order to identify their par­ the admissibility of appeals on a point of law. ticular nature. Those principles exclude the assessment of 81 facts from the Court's jurisdiction.

216. The Court of First Instance observes that 'this view is based on two factors. First, Tréfilarbed Roermond had undertaken 219. It would be possible to find once again expressly not to make deliveries of any kind that the ground in question is not the only ... even deliveries not intended for resale. Sec­ ground in support of the Court's assessment ondly, the word "indirectly" could be inter­ of the facts before it. Assuming that this part preted by the reseller as committing the sup­ of the reasoning were invalid, it would follow plier to take to take the action necessary to that the account of the other factors estab­ preclude deliveries to Germany from other lishing territorial protection would be suffi­ countries, that is to say to control the other cient to consider that the obligation to state exclusive distributors with a view to prohib­ reasons had been fulfilled. The fact that this iting them from exporting to Germany'. 83 particular ground is superfluous would mean that its questionable nature should not have radical consequences.

225. It is true that BStG stated before the 221. As can be seen, the ground in question Court of First Instance that 'according to the appears to fulfil the Court's obligation to state information in the possession of the [appel­ reasons when read in conjunction with the lant's] contracting partner, the agreements other parts of the reasoning. were ... submitted on several occasions to the approval procedure with the Commission in connection with the reorganisation of the Luxembourg and Saar steel industry, and the Commission never expressed any doubts as 86 to their legality', and that the Court did not 222. Finally, paragraph 98 of the contested state any views on the subject. judgment shows that the appellant had already maintained before the Court of First Instance that the agreements in question were not intended to prevent parallel imports. It is clear that BStG's complaint, which is identical to that raised before the Court of First Instance, 226. To establish the extent of the Court's seeks to question that Court's assessment of obligation to state reasons, it is necessary to the facts. determine the exact nature of the observa­ tions in question.

223. Consequently, the part of the appellant's argument concerning the very existence of stated reasons must be declared unfounded, 227. If these constituted a plea in law, they while the part relating to the substance of could not have been introduced in the course those reasons must be dismissed as inadmis­ of proceedings, at the stage of lodging the sible because it seeks to challenge the Court reply, unless they were accompanied by proof of First Instance's assessment of the facts, that they were based on matters of law or fact which came to light in the course of the pro­ cedure, which is unlikely and, in any event, has not been proved. In that case, however, the Court would at least have had to rule on the admissibility of the plea. 224. I also take the view that the plea alleging that the Commission tolerated the exclusive distribution agreements must be dismissed 86 — Paragraph 17 of the reply.

232. I therefore propose that the Court find that BStG's argument did not call for a sepa­ rate reply from the Court of First Instance and that the complaint of the lack of a state­ 230. It seems to me contrary to the principles ment of reasons be dismissed as unfounded. of the proper administration of justice to require the Court of First Instance to reply to every argument of the parties where these are found to be merely general and unspecified allegations which do not appear to be sup­ ported by any proof whatever. Such a require­ 233. The fourth limb of the sixth plea must ment, on the pretext of protecting the parties accordingly be dismissed in its entirety. against a denial of justice or failure to state reasons, would be likely to encourage the proliferation of unfounded complaints, some of which could arise from the parties' sole aim of weakening the Court's judgment in order to secure the option of challenging its 5. Application of Article 85(1) of the Treaty to validity, if necessary. the quota and price agreements for the Benelux market

87 — The Commission's toleration of the agreements in question is pleaded by BStG to support the plea that they are exempted pursuant to Regulation No 67/67. This plea was raised when the action was brought before the Court of First Instance. The reply shows that the appellant considers that the exemption of the agreements is confirmed by the fact that the Commission raised no objection when it was notified of the agreements. For the distinction between an 234. The Court of First Instance found that argument and a plea, see the judgment in Case C-153/96 P De Rijk v Commission [1997] ECR I-2901, paragraph 19, 'the Commission has established to the req­ and my Opinion in that case, point 21. uisite legal standard that the [appellant] par-

239. Regarding the issue of Mr Müller's capacity, the Court of First Instance observed that it could not 'for the same reasons as those set out in paragraph 92 above, accept the [appellant's] argument that Michael Müller, its chief executive, acted only in his capacity 236. The appellant adds that the reasoning of as chairman of the Fachverband Betonstahl­ the judgment is contradictory and contends matten or of the supervisory body of the that mere presence at a meeting during which cartel and not as chairman of the [appel­ 9 other undertakings conclude an agreement on lant]'. 0 prices cannot amount to a breach of the abovementioned provision if the undertaking in question does not itself distribute the prod­ ucts which are the subject of the agreement. As BStG exports catalogue mesh to the Benelux countries, it cannot be accused of 240. The Court considered that 'that argu­ participating in agreements relating to the ment is not supported by any evidence'. It prices of standard mesh.

89 — See points 105 and 198 et seq. above. 88 — Paragraph 137 of the judgment. 90 — Paragraph 135 of the judgment.

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242. The Court of First Instance was there­ fore entitled, in its absolute discretion, to find that this had not been proved, and it is thus not for the Court of Justice to question that conclusion.

244. This careful reasoning shows that the Court of First Instance carried out a proper examination and sufficiently established the 243. The Court of First Instance likewise nature of the appellant's potential interest in gave an express ruling on BStG's interest in participating in agreements relating to the concluding agreements on the Benelux market. 93 prices of standard or semi-standard mesh. As I have already mentioned, the Court of Consequently, here again the Court's conclu­ First Instance stated that it could not 'accept sion cannot be questioned without contra­ vening the jurisdiction rules.

91 — Paragraph 92. 92 — Paragraph 131. 93 — Points 179 to 182 above. 94 — Paragraph 136 of the judgment.

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246. However, the appellant has neither proved nor claimed that such misrepresenta­ 249. The appellant cites paragraph 132 of the tion occurred. This is shown by the fact that Court's judgment, in which it 'considers that, it merely reproduces in its appeal part of its having regard to the manifestly anti­ 97 replies to the Court's questions, which, fur­ competitive object of the meetings, as evi­ thermore, were partly summarised by the denced by the numerous telexes from Court in paragraph 125 of the judgment. The Mr Peters to Tréfilunion, the [appellant], by passage reproduced is accompanied only by taking part without publicly distancing itself the argument that the Court of First Instance from what occurred at them, gave the impres­ ignored the appellant's statement, thus sion to the other participants that it sub­ showing that the purpose of its claim is to scribed to the results of the meeting and obtain a review of its application to the Court would act in conformity with them ... This of First Instance which, pursuant to Article finding is not altered by the fact that, at the 49 of the EC Statute of the Court of Justice, meetings concerned, the German producers is outside the jurisdiction of the latter. were criticised by the others. It is apparent from the telex messages from Mr Peters ... that the [appellant] was regarded as the under­ taking which should, and did in fact, encourage 95 — Paragraph 131. 96 — Paragraph 132. certain German producers to observe the 97 — Paragraphs 91 and 93 of the appeal. prices on the Benelux market.'

In fixing the amount of the fine, regard shall 253. On the basis of all of the foregoing I be had both to the gravity and to the dura­ propose that the sixth plea be dismissed. tion of the infringement.'

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BAUSTAHLGEWEBE v COMMISSION

255. In support of its plea alleging breach of 1. No separate assessment of mitigating and this provision, BStG sets out the following aggravating circumstances arguments:

256. BStG criticises the Court of First Instance for finding that the reasons stated in the — the Commission did not carry out a sepa­ Decision in relation to the amount of the fine rate assessment of the mitigating and aggra­ were sufficient. It contends that the Court vating circumstances of the infringements; erred in finding that the Commission had car­ ried out a separate assessment of the criteria determining the gravity of the infringements.

— the appellant's participation in the struc­ tural crisis cartel was regarded as an 257. The Commission replies that the appel­ infringement on its part; lant's complaint is inadmissible because it repeats before the Court of Justice the argu­ ments set out before the Court of First Instance.

260. In the present proceedings, the appellant claims that the Decision did not specify the misconduct alleged against it or identify clearly the different circumstances, in its favour or otherwise, surrounding the facts in question 264. Firstly, it appears that each of the para­ which the Commission took into account in graphs of the judgment examining the appel­ fixing the fine. lant's alleged infringements gives a detailed summary of the parts of the Decision relating to BStG. The Court of First Instance refers precisely to the relevant passages of the Deci­ sion which clearly identify BStG's individual conduct and the part it played in setting up or operating each of the agreements. 99It is 261. In support of its complaints the appel­ also significant that BStG did not consider it lant cites point 203 of the Decision, which necessary to give particulars of those parts of states that 'in fixing the individual fines, the the passages which might undermine the Com­ Commission has taken into account the degree mission's statement of the reasons for its and duration of the involvement of the under­ Decision, which demonstrates that there was takings involved, together with their financial no serious deficiency in the statement. and economic position'. BStG believes that this illustrates the Commission's failure to assess individually the mitigating and aggra­ vating circumstances taken into account for the purposes of the fine.

265. Secondly, in reaching the conclusion that the Decision, read as a whole, provided the appellant with the information necessary for it to establish whether the Decision was 262. It should be observed that the statement founded, and enabled the Court of First of reasons required by Article 190 of the EC Treaty must show clearly and unequivocally the reasoning of the Community authority which originated the act complained of, so 99 — The paragraphs of the judgment referring to the relevant passages of the Decision are shown in the footnotes to point that the persons concerned are informed of 6 of this Opinion.

266. The Court of First Instance rightly pointed out that the Decision could not be challenged on the basis of a partial reading. Point 197 et seq. of the Decision, cited by the 268. The Court of First Instance thus refers appellant in its written observations, are not to specific passages of the Decision relating to sufficient to establish that detailed individual the appellant's conduct which are capable of reasons were not given because, as we have justifying a harsher penalty. In these par­ just seen, the Decision sets out the acts attrib­ ticular observations, the Commission shows utable to BStG for each infringement, although that BStG was the driving force in commit­ in different places. As clarity is required in ting the infringements and also that relation to proof of the responsibility of more Mr Müller used his triple capacity. The neces­ than one party and to the existence of a sary supplement to the passages in question is

100 — Paragraph 146 of the judgment. 101 — Paragraph 149 of the judgment.

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provided by point 207 of the Decision, in were not limited to certain undertakings, it which the Commission states that the heaviest was not necessary for the Commission to fines should be imposed on the undertakings carry out an individual assessment. whose executives held senior positions in the associations of undertakings such as the Fach­ verband Betonstahlmatten.

272. It follows that the complaint that the Court of First Instance incorrectly assessed the statement of reasons in the Decision con­ 269. It should be observed that the appellant cerning the circumstances of the infringe­ does not mention these passages when it cites ments must be rejected. only point 197 et seq. in asserting that the Decision does not state sufficient reasons.

278. This point is confirmed by the fact that, according to the Commission Decision, the object of the cartel was strictly limited to the German market because it provided for a reduction in the production capacities of 275. The Commission considers that the German producers, for price regulation and 105 Court of First Instance justified the choice delivery quotas in the German market. made in the Decision not to find that the However, the alleged infringements by BStG existence of the cartel was a mitigating cir­ consist in acts seeking to restrict exports of cumstance in relation to BStG. welded steel mesh from Germany to other Member States and to fix prices in markets other than the German market. With regard to the agreements designed to set quotas for exports from the other Member States to Germany and to ensure adherence to the prices prevailing on the German market, BStG 276. With this complaint the appellant is has not shown that the Commission consid­ attempting to demonstrate that the Commis­ ered them to be elements of the cartel agree­ sion and the Court of First Instance found in ment, reality that it was illegal for BStG to partici­ pate in the cartel, although the Commission was aware of its existence and, furthermore, had tolerated it.

279. The Court of First Instance also noted, inter alia, that:

277. In paragraphs 55 and 140 of its judg­ ment the Court of First Instance stated that the cartel did not, as such, form part of the infringements found by the Decision. It stated — the first paragraph of point 126 of the the same in observing, in paragraph 148, that Decision stated that 'the agreements con­ the appellant 'used the cartel to protect the cerning the German market should be German market against competition from pro­ seen against the background of the estab­ ducers in other Member States by means of lishment and operation of the structural measures incompatible with Community law'. crisis cartel'; It is quite clear from these findings that in both cases BStG is not being criticised for forming or participating in the cartel, but for 105 — Point 126 et seq. of the Decision.

281. The Commission's acknowledgment, 3. BStG's lack of awareness that the struc- noted by BStG in another case, in point 174 tural crisis cartel and the conduct aiming to of the Decision, that it found the appellant protect it were illegal 'responsible' for the cartel is not sufficient to contradict all the other findings of the Deci­ sion reproduced in part in the preceding para­ graphs, which affirm the contrary, particu­ larly as, although the passage in question describes the anti-competitive effects of the cartel, which the Commission has never denied, it does not express the idea that it 284. BStG complains that the Court of First constitutes one of the confirmed infringe­ Instance did not examine its argument that it 107 ments. was unaware that the cartel was illegal and that it found that the offences had been com­ mitted 'intentionally' within the meaning of Article 15 of Regulation No 17. The appel­ 106 — Paragraph 55 of the judgment. 107 — In point 174 of the Decision, the Commission states that lant maintains that it was also unaware that the cartel arrangement not only restricted competition conduct intended to protect the cartel, that is between the cartel members in the German market, but also distorted competition in trade within the Community. to say, of the kind which is the subject of this The Commission adds that the arrangement was liable to affect trade between Member States. case, was illegal.

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BAUSTAHLGEWEBE v COMMISSION

285. The Commission replies that these argu­ 4. Disproportionate fine ments of BStG are inadmissible because they are being put forward for the first time at the appeal stage.

— the national authorities' toleration of the structural crisis cartel; 288. The first complaint must, however, be declared unfounded in so far as the Court of First Instance, as we have already seen, previ­ ously dismissed on adequate legal grounds, the plea that the German structural crisis cartel had been taken into account as consti­ — the principle that the fine should take tuting an integral part of the infringement account only of the turnover relating to confirmed by the Decision. As this aspect the agreements in question and not the was no longer necessary for evaluating the total turnover; facts, the question whether BStG was aware that the cartel was legal was not relevant in determining whether the offences which it was alleged to have committed were com­ mitted 'intentionally'. — the excessive duration of the administra­ tive procedure and the proceedings before the Court of First Instance, which should 108 — Paragraph 142 of the judgment. be accepted as a mitigating circumstance;

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OPINION OF MR LÉGER — CASE C-185/95 P

— the error in fixing the fine by reference to teria which must be applied has been drawn BStG's market share; up'. 9

— the principle of equality, whereby the fine imposed on it should not be abnormally high in comparison with the other fines imposed as a result of the Commission's Decision. 293. In the Court's view there are accord­ ingly no criteria which must always be taken into account or which cannot be taken into account to measure the gravity of an offence. The Court thus appears to consider that it is for the Commission to determine in each case 290. These complaints challenge the interpre­ the factors for assessing the gravity of the tation and application of Article 15(2) of offence, provided, of course, that the reasons Regulation No 17 by the Commission and why it considers the chosen criteria appro­ the Court of First Instance. priate are adequately stated.

298. Before expressing an opinion on BStG's other complaints, I must point out that some of them show that the appellant is merely (a) Excessive length of the proceedings repeating the arguments which it set out before the Court of First Instance and has not pro­ duced anything to show that that Court's 113 assessment was mistaken in law.

296. As the complaint that the Commission did not take account of the excessive length of the administrative procedure when fixing (b) Fine disproportionate by reference to the fine was not discussed before the Court share capital of First Instance, it must be ruled inadmis­ 11 sible. For the reasons already stated, 1this point cannot be raised for the first time before the Court of Justice.

299. The appellant repeats, in relation to the Court of First Instance, the argument which it set out before that Court against the Com­ 1 mission. 14

303. The Court of First Instance examined 301. This argument was also raised by BStG this point before dismissing it, observing with before the Court of First Instance, which regard to the fine of 3.15% of turnover that expressly refuted it in finding that 'the Com­ 'no mitigating circumstances exist in respect mission was right not to treat the existence of of the [appellant], save as stated in paragraph the structural crisis cartel as a general miti­ 122 above, and that, conversely, there was an gating circumstance in the [appellant's] case, aggravating circumstance — as in the case of except as indicated by the Court in paragraph Tréfilunion, to which was applied the higher 122. It should be noted, first, that the [appel­ percentage of 3.60% — which ... reflects the lant] did not avail itself of the possibility pro­ number and extent of the infringements found 117 vided by Article 85(3) of the Treaty of noti­ against the [appellant]'. fying the cartel agreement to the Commission in order to obtain from it a declaration that Article 85(1) did not apply and, secondly, that the [appellant] used the cartel to protect the German market against competition from pro­ ducers in other Member States by means of measures incompatible with Community 116 law'. As the appellant does not adduce any legal argument capable of placing in question 304. The inescapable conclusion is that BStG the Court's reasoning, its ground of com­ has not shown any breach of the relevant law plaint must be declared inadmissible. in the reasoning of the judgment and that the

308. The Court of First Instance observed 305. BStG challenges the use of this criterion that, pursuant to Article 15(2) of Regulation on the ground that a firm's financial resources No 17, the Commission could 'impose fines are not proportionate to its market position. of between ECU 1 000 and ECU 1 000 000, This complaint refers to a ground of the and the latter figure may be increased up to a judgment in which the Court of First Instance ceiling of 10% of the turnover', before finding rejected a plea for mitigation on the basis that that the Commission, 'which took account not the appellant did not belong to a large indus­ of the total turnover achieved by the [appel­ trial entity. It appears that the criterion in lant], but only of the turnover in welded steel question originates in the judgment itself and mesh in the Community of six Member States therefore was not discussed as such before and did not exceed the 10% ceiling, did not the Court of First Instance. However, as I therefore, having regard to the gravity and 1 have already pointed out, 18the choice of duration of the infringement, infringe Article 119 criteria for assessing the gravity of infringe­ 15 of Regulation No 17'. ments is within that Court's discretion.

309. In exercising its power to make factual findings, the Court of First Instance therefore first observed that the turnover for welded 306. Moreover, no mistake of law is alleged steel mesh alone had served as the basis for in support of this complaint and it must calculating the fine. It then applied correctly therefore be declared inadmissible. the abovementioned provision by pointing

313. For the reasons set out above, I propose that the Court should :

— dismiss the appeal in its entirety;

— order the appellant to pay the costs pursuant to Article 69(2) of the Rules of Procedure .

120 — For a recent judgment, see Ferriere Nord v Commission, cited above, paragraph 31.

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