Súdny dvor Európskej únie·20.2.1997

C-219/95

ECLI:EU:C:1997:74

Súd: Súdny dvor Európskej únie
IČS: 61995CC0219
Zdroj: eur-lex.europa.eu ↗

OPINION OF MR LÉGER — CASE C-219/95 P

OPINION OF ADVOCATE GENERAL LÉGER delivered on 20 February 1997 *

1. By this appeal, Fernere Nord SpA, a prices, the restricting of sales, the sharing of company incorporated under the laws of markets and in measures to implement these Italy ('Ferriere Nord' or 'the appellant') asks agreements and to monitor their operation'. the Court to set aside the judgment of 6 April 1995 in Ferriere Nord v Commission ('the contested judgment'), 1 by which the Court of First Instance dismissed its applica tion for annulment of Commission Decision 89/515/EEC of 2 August 1989 relating to a proceeding under Article 85 of the EEC 2 Treaty ('the contested decision'). 3. According to the findings of the Court of First Instance, the contested decision alleges more specifically that the appellant '... par ticipated in two sets of agreements concern ing the French market ... intended to deter Facts and procedure mine prices and quotas in order to limit imports of welded steel mesh into France, and to set up an exchange of information', the first set of agreements having been implemented between April 1981 and March 1982, the second set between the beginning 4 2. The contested decision imposes fines on of 1983 and the end of 1984. fourteen manufacturers of welded steel 3 mesh for having, in the words of Article 1, '... infringed Article 85(1) of the EEC Treaty by participating from 27 May 1980 until 5 November 1985 on one or more occasions in one or more agreements or concerted prac tices (hereinafter referred to as "agree ments") consisting in the fixing of selling 4. In common with ten of the thirteen other addressees, Ferriere Nord brought an action before the Court of First Instance for annul * Original language: French. ment of the decision in so far as the decision 1 — Case T-143/89 Ferriere Nord v Commission [1995] ECR II-917. concerned itself; in the alternative, it claimed 2 — Commission Decision 89/515/EEC of 2 August 1989 relat- that the fine of ECU 320 000 imposed on it ing to a proceeding under Article 85 of the EEC Treaty (IV/31.553 —Welded steel mesh), OJ 1989 L 260, p. 1. should be set aside or reduced to an equi 3 — According to paragraph 1 of the contested judgment, which table amount. reproduces the definition set out in point 1 of the decision, welded steel mesh is 'a prefabricated reinforcement product made from smooth or ribbed cold-drawn reinforcing steel wires joined together by right-angle spot welding to form a network. It is used in almost all areas of reinforced concrete construction.' 4 — Paragraph 15 of the contested judgment.

I - 4414

FERRIERE NORD v COMMISSION

5. The appellant put forward three pleas in whereas most of the arguments put forward law in support of its application: infringe by Ferriere Nord on appeal may appear to ment of Article 85(1) of the Treaty, infringe repeat those already put forward before the 5 ment of Article 15(2) of Regulation No 17, Court of First Instance, they nevertheless and misuse of powers. The Court of First contest the interpretation and application by Instance rejected all those pleas and ordered that Court of Community provisions and Ferriere Nord to pay the costs. hence satisfy the requirements of Article 51 of the Statute of the Court of Justice and of 6 Article 112(1)(c) of the Rules of Procedure.

6. The appellant brought this appeal by application lodged at the Registry of the Court of Justice on 19 June 1995 in which it First plea alleging infringement of Article claims that the contested judgment should be 85(1) of the Treaty set aside. In its reply, it claims in the alterna tive that the fine should be substantially reduced and that the Commission should be ordered to pay the costs incurred both at first instance and on appeal. The Commis sion claims that the appeal should be dis missed, the validity of the contested decision 9. This first plea breaks down into three upheld and the appellant ordered to pay the parts. Essentially, the appellant maintains costs. that the Court of First Instance:

7. This appeal is organized around two — did not take account of the Italian ver pleas: it maintains that the Court of First sion of Article 85(1) of the Treaty, Instance erred in law in interpreting and according to which an agreement must applying, first, Article 85(1) of the Treaty have as 'its object and effect' the preven and, second, Article 15 of Regulation No 17. tion, restriction or distortion of compe tition;

8. I shall consider each of those pleas in turn, setting out their substance as I do so. I — failed to evaluate the detrimental effects would observe, as a preliminary point, that, on trade between Member States of the

5 — Regulation No 17 of the Council of 6 February 1962, First 6 — See points 18 and 19 of my Opinion in the pending case of Regulation implementing Articles 85 and 86 of the Treaty De Rijk v Commission, Case C-153/96 P [1997] ECR I-2901, (OJ, English Special Edition 1959-1962, p. 87). I-2903.

I - 4415

OPINION OF MR LÉGER — CASE C-219/95 P

agreements to which the appellant was a which directly or indirectly fix purchase or party; selling prices or any other trading conditions or share markets or sources of supply.'

— wrongly assessed the economic and legal links between the market in welded steel mesh — the product to which the anti It then concluded from this that: competitive agreements related — and the market in wire rod, a product coming under the ECSC Treaty which is upstream of the market in welded steel mesh and on which the latter product is dependent. 'It follows from the wording of that provi sion that the only relevant questions are whether the agreements to which the appli cant was a party with other undertakings had The Italian version of Article 85 as their object or effect the restriction of competition and whether they might have 9 affected trade between Member States ...'.

10. After finding that the appellant had admitted to being a party to the agreements between producers of welded steel mesh and that it did not dispute the object of those agreements, namely to fix prices and quo 11. In answering those questions, the Court 7 of First Instance found, on the basis of the tas, the Court of First Instance observed as follows: factual evidence adduced, that:

'Article 85(1) of the Treaty prohibits, as incompatible with the common market, all 'By fixing prices and quotas, the agreements agreements between undertakings and con to which the applicant was a party had as certed practices which may affect trade their object or effect the restriction of com between Member States and which have as petition and might have affected trade their object or effect the prevention, restric 10 between Member States ...'. tion or distortion of competition within the common market, and in particular those

8 — Paragraph 26 of the contested judgment 9 — Paragraph 27 of the contested judgment. 7 — Paragraph 25 of the contested judgment. 10 — Paragraph 28 of the contested judgment.

I - 4416

FERRIERE NORD v COMMISSION

12. The appellant had put forward in sup 13. The appellant asserts that, in interpreting port of its application a plea based on the Article 85, the Court of First Instance Italian version of Article 85(1), which, unlike wrongly refused to take account of the actual the other language versions, refers to agree effects of the agreement in as much as it ments which have as their object and effect referred only to its anti-competitive object. 11 the restriction of competition. It con In this connection, it accuses the Court of cluded from this that that provision lays First Instance of wrongly basing its reason down a cumulative and not an alternative ing on case-law which did not relate to the condition and that if that cumulative con Italian version of Article 85. It further main dition was not satisfied, it could not be tains that it appears from the cases cited by charged with any infringement. The Court of the Court of First Instance that the other First Instance held, however, that: language versions should be called in aid only where the meaning of one version of a provision is not clear, which is not true of the Italian version of Article 85.

'The applicant may not rely on the Italian version of Article 85 of the Treaty in order 14. The appellant's argument cannot be to require the Commission to demonstrate upheld either as regards the alleged cumula that the agreement had both an anti tive nature of the conditions laid down by competitive object and effect. That version Article 85 or as regards the alleged irrel cannot prevail by itself against all the other evance of the case-law cited. language versions, which, by using the term "or", clearly show that the condition in question is not cumulative but alternative, as the Court of Justice has consistently held since its judgment in [Case 56/65] Société Technique Minière [[1966] ECR 235, at 249]. The uniform interpretation of rules of 15. Suffice it to say that the Court of First Community law requires that they be Instance was right in law when it pointed interpreted and applied in the light of out that it is now established, by settled case- the versions existing in the other Commu law, that the condition laid down in Article nity languages (judgments of the Court of 85(1) is alternative and not cumulative. In Justice in Case 19/67 Van der Vecht [1967] particular, the judgment in Société Technique ECR 345 at p. 354, and in Case 283/81 CIL- Minière, to which the Court of First Instance FIT vMinistry of Health [1982] ECR 3415, referred, leaves the matter in no doubt: 12 paragraph 18).'

11 — That version reads as follows: '1. Sono incompatibili con il mercato comune et vietati tutti gli accordi tra imprese, tutte le decisioni di associazioni d'imprese e tutte le pratiche con- cordate che possano pregiudicare il commercio tra Stati membri e che abbiano per oggetto e per effetto di impedire, '... for the agreement at issue to be caught by restringere o falsare il gioco della concorrenza all'interno del mercato comune ..." (my emphasis). the prohibition contained in Article 85(1) 12 — Paragraph 31 of the contested judgment. it must have as its "object or effect the

I-4417

OPINION OF MR LÉGER — CASE C-219/95 P

prevention, restriction or distortion of com 16. The later judgment in Consten and petition within the Common Market". Grundig v Commission clearly confirms that analysis:

The fact that these are not cumulative but alternative requirements, indicated by the conjunction "or", leads first to the need to consider the precise purpose of the agree '... for the purpose of applying Article 85(1), ment, in the economic context in which it is there is no need to take account of the con to be applied. crete effects of an agreement once it appears that it has as its object the prevention, 15 restriction or distortion of competition.'

This interference with competition referred to in Article 85(1) must result from all or some of the clauses of the agreement itself.

17. I would observe, for completeness' sake, that the Court has maintained that approach in more recent cases. In the 1990 judgment in Sandoz Prodotti Farmaceutici v Commis- Where, however, an analysis of the said sion, 16 the Court held that: clauses does not reveal the effect on compe tition to be sufficiently deleterious, the con sequences of the agreement should then be considered and for it to be caught by the prohibition it is then necessary to find that those factors are present which show that competition has in fact been prevented or restricted or distorted to an appreciable extent. 'For the purpose of the application of Article 85(1) there is no need to take account of the concrete effects of an agreement when it has as its object the prevention, restriction or

13 ...'. 14 — Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299. 15 — At 342. See also Case 32/65 Italy v Council and Commis- sion [1966] ECR 389, at 407-408. 16 — Case C-277/87 Sandoz prodotti farmaceutici v Commission 13 — At 249. [1990] ECR I-45 (summary publication).

I-4418

FERRIERE NORD v COMMISSION

distortion of competition within the com that Community legislation is drafted in sev mon market ...'. eral languages and that the different lan guages versions are all equally authentic. An interpretation of a provision of Community law thus involves a comparison of the differ 19 ent language versions.' 18. Consequently, it may be inferred with certainty from the Court's case-law that Article 85(1) does not require an agreement to have both an anti-competitive object and an anti-competitive effect. It is only if the content of the agreement does not disclose an anti-competitive object that it will be nec 21. Accordingly, the Court of First Instance essary to determine whether it has adverse cannot be accused of not having taken effects on competition. In other words, it account of the Italian version of Article 85(1) will be necessary to go into any deleterious of the Treaty in interpreting and applying effect on the market only if it cannot be that provision, since it had to respect the found that the object of the agreement is overriding requirement of uniform interpre prohibited. tation of Community law.

19. Consequently, the Court of First Instance was right in law to reject the appel Effects on trade between Member States lant's argument based on the claim that the conditions laid down in Article 8(1) of the Treaty are cumulative.

20. That conclusion is unaffected by the fact 22. The appellant claims that the Court of that that argument could be derived from the First Instance erred in law by failing to con Italian version of that provision. According sider in what respect the agreements to to the case-law cited by the Court of First which it was a party affected trade between Instance, '... the need for a uniform interpre Member States. It considers that, to be con tation of Community [provisions] necessi trary to Article 85, an agreement must be tates that this passage should not be consid capable of affecting (pregiudicare) trade ered in isolation, but that, in cases of doubt, between Member States to an appreciable it should be interpreted and applied in the extent. In its view, however, the agreements light of the versions existing in the other ... in question were not capable of affecting languages'. 18 '[I]t must be borne in mind trade between France and Italy to an appre ciable extent.

17 — Paragraph 3 of the summary, at I-46. 18 — Van der Vecht, at 354; my emphasis. 19 — CILFIT vMinistry of Health, paragraph 18.

I - 4419

OPINION OF MR LÉGER — CASE C-219/95 P

23. It refers in this regard to Béguelin degree of probability that it may have an Import, which sets out the requirements influence on the pattern of trade in such a for the application of Article 85 in the fol way that it might hinder the attainment of a lowing terms: single market between States. That condition must be understood by reference to the actual circumstances of the agreement. Only 23 actual examination can bear this out.

'To be incompatible with the common mar ket and prohibited under Article 85, an agreement must be one which "may affect trade between Member States" and have "as [its] object or effect" an impediment to 21 "competition within the common market". 25. Whilst the appellant considers that fac tual aspects (intra-Community trade con fined to frontier regions) peculiar to the cir cumstances of the case suffice to rule out the possibility that its participation in the agree ments at issue had any influence whatsoever on intra-Community trade in welded steel mesh, it seems to me that, on the contrary, the contested judgment scrupulously took account of the facts of the dispute in analys 'Finally, in order to come within the prohibi ing the arguments put forward by the appel tion imposed by Article 85, the agreement lant in its application, as reiterated in its must affect trade between Member States and appeal, and that it rejected them after setting the free play of competition to an appre out detailed reasoning. 22 ciable extent.

...'

26. The Court of First Instance rightly held in accordance with this Court's case-law that it is enough, for the purposes of Article 85(1), that the agreements at issue were 24. That judgment simply confirms the case- capable of affecting trade to an appreciable law to the effect that an agreement is caught effect, and that there is no need to establish by Article 85 only if there is a sufficient that there were such effects.

20 — Case 22/71 Béguelin Import [1971] ECR 949. 23 — See, for example, Case 5/69 Volk [1969] ECR 295, para- 21 — Paragraph 10. graph 7, and Case 1/71 Cadillon [1971] ECR 351, para- 22 — Paragraph 16. graph 8.

I - 4420

FERRIERE NORD v COMMISSION

27. The Court of First Instance was there majority of cases to establish for legal pur fore perfectly justified in stating that the poses, but merely requires that it be estab restrictive effect may be caught by Article lished that such agreements are capable of 25 85(1) if the following two conditions are having that effect.' met: it is sufficient that the effect either actu ally occurred or was capable of occurring; the damage which it was capable of causing to competition must have been appreciable:

29. The Court of First Instance then ana lysed the context of the case before concluding that the market could have been appreciably affected: 'With regard to the effect on trade between Member States, Article 85(1) of the Treaty does not require that the restrictions on competition which have been established have actually affected trade between Member States, but only requires that it be established that such agreements are capable of having 'In the present case, the fact that the appli that effect (judgment in [Case 19/77] Miller cant's units of production of welded steel 24 [[1978] ECR 131], paragraph 15).' mesh are far away from the French market is not in itself of such a nature as to hinder its exports to that market. Moreover, the appli cant's arguments themselves show that the agreements were, in so far as they tended to increase prices, likely to increase its exports to France and thereby to affect trade 28. The reference made by the Court of between Member States. First Instance to the judgment in Miller appropriately calls to mind this Court's completely unambiguous view on this point:

Furthermore, assuming, as the applicant claims, that the agreements did not alter the 'In prohibiting agreements which may affect total market share held by the Italian pro trade between Member States and which ducers and that its exports remained far have as their object or effect the restriction below its allocated quota, it is nevertheless of competition, Article 85(1) of the Treaty the case that the restrictions on competition does not require proof that such agreements which have been established were likely to have in fact appreciably affected such trade, divert patterns of trade from the course which would moreover be difficult in the which they would otherwise have followed

24 — Paragraph 32. 25 — Miller, paragraph 15.

I - 4421

OPINION OF MR LÉGER — CASE C-219/95 P

(judgment in [Joined Cases 209/78 to 215/78 was indeed considered, as I have just and 218/78] Van Landewyck [[1980] ECR observed — was whether, in accordance with 3125], paragraph 172). The object of the Enichem Anie v Commission, as cited by the agreements was to allocate quotas for Court of First Instance, the infringement in imports into the French market in order to which the appellant took part was capable as bring about an artificial increase in prices on a whole of infringing Article 85 of the 26 that market.' Treaty:

30. Moreover, the appellant considers that the Court of First Instance was wrong to cite (at paragraph 27 of the contested judgment) the judgment in Enichem Anie v Commis- 27 sion. It argues that, whereas that case was '... the applicant's argument that its own concerned with an agreement between all activities could not have restricted compe producers in the Community with a view to tition must be rejected since the relevant sharing the market by means of the indi question is not whether the applicant's indi vidual allocation of annual sales 'quotas', vidual participation was capable of restrict trade between States was very limited in the ing competition but whether the infringe case of welded steel mesh. ment in which it participated with others could have had that effect. The undertakings which took part in the infringement held in the Decision to have been committed account for nearly the whole of that market, which would clearly indicate that the 31. That argument cannot be upheld and the infringement which they committed together 28 reference made by the Court of First could restrict competition.' Instance is entirely relevant.

32. The Court of First Instance rightly held that '... the question whether, having regard to the applicant's weak position on the French market, its own participation in those 33. Consequently, the argument that the agreements could restrict competition or Court of First Instance misinterpreted the affect trade between Member States is irrel concept of detrimental effect on trade evant'. The only relevant factor — which between Members States within the meaning of Article 85 of the Treaty cannot be upheld.

26 — Paragraphs 33 and 34 of the contested judgment. 27 — Case T-6/89 Enichem Anic v Commission [1991] ECR II-1623, paragraphs 216 and 224. 28 — Enichem Anic v Commission, paragraph 216.

I - 4422

FERRIERE NORD v COMMISSION

Effect of the regime for wire rod on the mar- price of welded steel mesh depends largely ket in welded steel mesh on that of wire rod'.

It considered, however, in making its deter mination of the facts submitted to it in the 34. In its action before the Court of First exercise of its sole jurisdiction as tribunal of Instance, the appellant observed that, in fact, as follows: assessing the impact on competition of the agreements at issue, the economic and legal context relating to wire rod could not be ignored in view of the close links between the market in welded steel mesh, the product to which the anti-competitive agreements related, and the market in wire rod, a prod 'but it does not follow from this that any uct coming under the ECSC Treaty. In so far possibility of effective competition in that as the price of welded steel mesh largely sector was precluded. The producers still had depends on the price of wire rod, if the a sufficient margin to allow effective compe agreements at issue had had the effect of tition in the market. The agreements could increasing the price of welded steel mesh, therefore have had an appreciable effect on that outcome coincided with the Commis competition (judgment of the Court of sion's wish, as manifested in its policy of Justice in Van Landewyck and Others v restructuring the steel industry, of seeing the Commission [cited above], paragraphs 133 price of wire rod increase, since the rise in and 153).' the price of wire rod was brought about by the increase in the price of welded steel mesh.

36. Reiterating the reasoning it had already expounded before the Court of First Instance, the appellant argues on appeal that 35. At paragraph 29 of the contested judg the Court of First Instance failed to assess its ment, the Court of First Instance conceded argument that the agreement relating to as follows: welded steel mesh was lawful on the ground that it helped to decrease production of wire rod, and referred to irrelevant case-law.

29 — In so doing, however, it emphasized a factor which had already been taken into account by the decision. In the fac- tual part of the decision, point A(2) states that The value added in welded steel mesh compared with its intermediate 'With regard to the effect on competition, it material, wire rod, is relatively small (20 to 25%). Its final price depends greatly, therefore, on the price of the inter- is true, as the applicant observes, that the mediate material.'

I - 4423

OPINION OF MR LÉGER — CASE C-219/95 P

37. To my mind, the Court of First Instance justified in this case and whether the fine was cannot be accused of having failed to con imposed in accordance with criteria of fair sider the appellant's reasoning in this regard. ness. In this connection, it raises an argu ment which it considers to be 'determina tive'. It relates to the close link between the market in welded steel mesh and the market in wire rod, which, in its view, should have 38. It considered that the essential aspect had a bearing on whether the fine was justi was whether there was potential for effective fied and on its amount. It refers chiefly to competition on the market in question. The the judgment in Suiker Unie and Others v Court of First Instance answered that ques 30 Commission, , in which this Court consid tion in the affirmative and concluded that the erably reduced the amount of the fines agreements in the market in welded steel imposed by the Commission on the ground mesh were capable of having an appreciable that the latter had not taken account of the effect on competition. legislative background and economic context of the conduct to which exception was taken — that is to say of the extent to which the system introduced by the common organiza tion of the markets was capable of affecting 39. Consequently, that argument should be conditions on the sugar market. It takes the rejected. view that the situation in this case is no dif ferent from the one considered by this Court in Suiker Unie and accuses the Court of First Instance of having failed to discern any simi Second plea alleging that the fine is unfair larity between the situation of the sugar in Suiker Unie and that of wire rod in this case on the ground that in the former case there was a common organization of the market and in the other a quota and price regime. In 40. By its second plea the appellant main the appellant's view, a quota and price tains that the Court of First Instance misin regime under the ECSC is tantamount to a terpreted and misapplied Article 15(2) of common organization of the agricultural Regulation No 17, which gives the Commis markets. sion simply a power to impose a fine, with out requiring it to do so. It argues that the Court of First Instance considered it settled that where the competition rules have been infringed, the Commission must impose a fine. 42. Lastly, the appellant seeks to obtain a reduction in the fine by raising a series of arguments which it maintains the Court of First Instance failed to take into account. I 41. Conversely, it argues that it is possible shall examine those arguments in turn. not to impose a fine where this is warranted by the circumstances. Specifically it contends that the Court of First Instance failed to consider all the arguments which it put for 30 — Joined Cases 40/73 to 48/73, 50/73, 54/73, 55/73, 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Com- ward in order to evaluate whether a fine was mission [1975] ECR 1663.

I - 4424

FERRIERE NORD v COMMISSION

43. By this plea, the appellant is in fact con 46. The only requirement laid down in testing the Court of First Instance's interpre Article 15(2) in order for the Commission to tation and application of Article 15(2) of exercise its power, according to the case-law Regulation No 17 as regards (a) the qualify of this Court, is that there must have been a ing conditions on account of which the finding that the infringements were commit Commission may inflict a fine and (b) the ted '... intentionally or at least negligently, so determination of the amount of the fine. that the undertakings concerned are liable to pay a fine as provided for in Article 15(2) of 31 Regulation No 17 in respect thereof ...'. The Court of First Instance took care to call that qualifying condition to mind in para 44. Under Article 15(2) of Regulation graph 41 of the contested judgment before No 17: going on in paragraph 42 to find that it was fulfilled:

'2. The Commission may by decision impose on undertakings or associations of undertakings fines ... where, either intention 'In the present case, having regard to the ally or negligently: intrinsic seriousness and obvious nature of the infringement of Article 85(1) of the Treaty, and in particular subparagraphs (a) and (c) thereof, the Court considers that the applicant cannot claim that it did not act (a) they infringe Article 85(1) or Article 86 deliberately.' of the Treaty; ...

47. Neither can it be accepted that the Court In fixing the amount of the fine, regard shall of First Instance failed to establish that it be had both to the gravity and to the dura was justified in imposing the fine, in particu tion of the infringement.' lar as regards its amount, and that it did not take account of the appellant's arguments.

45. As far as the actual principle of imposing a fine is concerned, the Court of First Instance cannot be accused, as the appellant 48. The second subparagraph of Article 15(2) alleges, of not having specified the optional of Regulation No 17 provides that, in fixing nature of a fine in the event of a finding of the amount of the fine, regard is to be had an infringement of Article 85(1). The word to 'the gravity and to the duration of the ing of Article 15(2) of Regulation No 17 ('The Commission may') is sufficient to establish this and the Court of First Instance 31 — Suiker Unie and Others v Commission, paragraph 611. See is not under any obligation to point this out also the order of the Court of Justice of 25 March 1996 in Case C-137/95 P SPO and Others v Commission [1996] in order not to infringe that provision. ECR I-1611, paragraph 53.

I - 4425

OPINION OF MR LÉGER — CASE C-219/95 P

infringement'. The requirement relating to processed product. Without any rules gov the 'gravity of the infringement' is inter erning deliveries and prices of the processed preted by this Court as having to be estab product, welded steel mesh, there was risk lished in the light of a number of factors, that the protection given to wire rod would such as the legislative and economic context have been ineffective. That is why the pro of the sector in question. This is among the ducers filled that gap in the system with their avenues by which the appellant seeks to own rules on their own initiative. The Court obtain a reduction in the amount of the fine ought therefore to make a considerable which has been imposed on it. reduction in the fine, as the Court of Justice did in the judgment in the Suiker Unie case, on the ground that the scope for applying the competition rules was greatly reduced.'

49. As for what the appellant regards as its 'determinative' argument, that is to say the link with the market in wire rod, which it considers should have a bearing on the justi fication or the amount of the fine, it must be held that the Court of First Instance duly set forth the appellant's reasoning (paragraphs 58, 59 and 60 of the contested judgment) 51. In the judgment in Suiker Unie, this before setting out its reasons for rejecting it Court, after setting out the basis for the (paragraphs 63 to 66). principle of imposing a fine, 32 stated the cri teria for determining its amount:

50. In particular with regard to the alleged parallel with the link between sugar and beet considered by this Court in the judgment in Suiker Unie, the Court of First Instance described the appellant's claims thus in para graph 58 of its judgment: 'In fixing the amount of the fines under Article 15(2) [of Regulation No 17] regard shall be had both to the gravity and the duration of the infringement so that the Court has to take particular account of the 'In those cases there was a common organi legislative background and economic context zation of the markets for sugar which was of the conduct to which exception is taken, intended to guarantee, by a system of prices the nature of the restrictions of competition, and quotas, fair remuneration for the base as well as the number and size of the under 33 product, sugar beet. Here there is "a com takings concerned.' mon organization of the markets" at the level of the basic product, wire rod, the aim of which is to protect that product directly, 32 — Paragraph 611. although there is no provision made for the 33 — Paragraph 612.

I - 4426

FERRIERE NORD v COMMISSION

After this, the Court justified the reduction between the market situation considered in in the fine in terms of the specific character Suiker Unie and the instant case: istics of the market in sugar:

'the applicant cannot rely on the judgment in Suiker Unie, since that judgment relates to a 'The common organization of the market in situation which is fundamentally different in sugar, which moreover is tending to emerge two respects from that in the present case. from its initial transitional phase and ... only First, the Suiker Unie case concerned a com left a residual field available for competition, mon organization of an agricultural market has therefore helped to ensure that sugar falling within the EEC Treaty, whereas the producers continue to behave in an uncom present case concerns a system of pricing and petitive manner. production quotas falling under the ECSC Treaty. Secondly, in the Suiker Unie case, it was the derived product which was the sub ject of a common organization of the market, whereas in the present case it is the basic product which is the subject of the pricing Although this situation cannot lead to accep and production quota system. It follows tance of practices which are likely to make that, at an economic level, the situation with still worse what are, from the point of view which the Suiker Unie judgment was con of the Treaty, the disadvantages of such a cerned and that in the present case are fun system, it nevertheless means that the behav damentally different, and the applicant can iour of the parties concerned cannot be therefore not rely on that judgment in sup 36 regarded with the usual severity.' 34 port of its claims.'

53. Accordingly, contrary to what the appel 'Having regard to these factors the fines 35 lant contends, the Court of First Instance did imposed ... must be reduced ...'. pay sufficient attention to its arguments. In particular, it clearly established that, unlike the situation considered by this Court in Suiker Unie, the market in welded steel mesh is such that there can be effective compe tition and that the agreements on that market 52. The Court of First Instance rejected as amounted to an infringement of Article 85 follows the alleged parallel to be drawn justifying imposition of the fine laid down in the contested decision.

34 — Paragraphs 619 and 620. 35 — Paragraph 624. 36 — Paragraph 63.

I - 4427

OPINION OF MR LÉGER — CASE C-219/95 P

54. As regards lastly the series of arguments 57. As far as the duration of the infringe put forward by the appellant with a view to ment is concerned, the assessment of which obtaining a reduction in the fine imposed on is not contested by the appellant, I would it, they need not detain us long since, in refer to the facts set out in paragraph 15 of applying Article 15(2) of Regulation No 17, the contested judgment. once again the Court of First Instance can not be accused of having failed to take them into account.

58. As regards the gravity of the infringe ment, suffice it to say that the Court of First Instance did not shirk from considering the matters raised in support of the appeal.

55. For the purposes of fixing the amount of the fine, the gravity of the infringement, which has to be taken into account, '... has to be determined by reference to numerous fac 59. Accordingly, the appellant's argument tors, such as, in particular, the particular cir that it acted with the intention of safeguard cumstances of the case, its context and the ing the market in wire rod 'in accordance dissuasive effect of fines; moreover, no bind- with the provisions adopted by the Commis ing or exhaustive list of the criteria which sion' was considered and rejected by the 37 must be applied has [to be] drawn up'. Court of First Instance in paragraph 64 of the contested judgment on the ground that it could not be relied upon as a 'mitigating fac tor'.

56. It is therefore not so much whether a list 60. Furthermore, the appellant's allegation of arguments was taken into consideration, that it did not benefit in any way from the but whether two factors, one relating to the alleged infringement was considered by the duration of the infringement, the other to its Court of First Instance in paragraph 53 et gravity, which has to be assessed in the light seq. of the contested judgment, where it is of a general context, were present which is stressed that the decision did in fact take determinative in assessing the amount of the account of the unprofitable nature of the fine imposed. In applying the second sub production of welded steel mesh in general paragraph of Article 15(2) of Regulation No and of the appellant's position in particular. 17 as it did, the Court of First Instance did investigate whether those two conditions were satisfied.

61. As for the argument that the appellant 37 — Order in SPO and Others v Commission, paragraphs 53 and 54; my emphasis. had acted 'with a view to integrating and not

I - 4428

FERRIERE NORD v COMMISSION

partitioning the markets', it was not raised as 63. Lastly, the argument that the appellant such during the proceedings before the did not encourage the anti-competitive Court of First Instance. However, as the agreements on the Italian market, even Commission has pointed out, that argument though it had been in a position to do so falls within the broader context of an having regard to its important position on infringement committed intentionally or that market, — an argument which was not negligently and, as such, was correctly analy taken up by the Court of First Instance — sed in paragraphs 41 and 42 of the contested seems to me to carry no weight: the appel judgment. lant cannot use as a mitigating factor the claim that it did not engage in prohibited practices to a greater extent than it actually did.

62. As to the appellant's contention that it was not party either to the agreements relat ing to the Benelux market or to those relat ing to the German market, even though it had a considerable interest in the latter, the Court of First Instance cannot be accused of having failed to pay heed to this argument, since, in any event, the decision accuses the appellant only of having participated in the agreements relating to the French market, 64. The plea alleging misinterpretation and not of having participated in those relating to misapplication of Article 15(2) of Regulation the Benelux or German markets. No 17 should therefore also be rejected.

Conclusion

65. 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 in accordance with Article 69(2) of the Rules of Procedure .

I - 4429