C-176/99

A — The ground of appeal taking issue with the formal legality of the Decision . I -10693

1. Infringement of the rights of the defence by the Commission and the possibility of its régularisation (fourth ground of appeal) I-10693

2. The Commission's adoption of the Decision I -10694

(a) The quorum when the Decision was adopted by the Commission (second ground of appeal) I -10694

(b)The question of the proper authentication of the Decision by the Commission (third ground of appeal) I -10696

B — The ground of appeal alleging that the assessment of the substantive legality of the Decision was defective in law (fifth ground of appeal) I- 10697

1 — Original language: German.

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OPINION OF MRS STIX-HACKL — CASE C-176/99 P

I — Introduction breached the competition law of the Euro- pean Coal and Steel Community by estab- lishing, in an anti-competitive manner, systems for the exchange of information 1. The present case is an appeal brought and engaging in price-fixing and market- against the judgment delivered by the Court sharing. The Commission imposed fines on of First Instance on 11 March 1999 in Case 14 of the undertakings. In the case of T-137/94 ('the judgment under appeal'). 2 ARBED SA (hereinafter 'the appellant') the C o m m i s s i o n i m p o s e d a fine of ECU 11 200 000.

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ARBED v COMMISSION

order the Commission to bear the costs Second ground of appeal: of the proceedings at both instances;

or '[It] is based on the grounds that the Court of First Instance gave for finding that the necessary quorum was present when the Decision was adopted.' — in the alternative, refer the case back to the Court of First Instance and reserve judgment on costs. Third ground of appeal:

The Commission contends that the Court should: '[It] is based on the argument that, in assuming that the Decision was properly authenticated, the Court of First Instance (1) dismiss the appeal; infringed ARBED's right of observance of essential formal provisions.'

(2) order the appellant to pay the costs of the proceedings. Fourth ground of appeal:

Summary of the grounds of appeal and not have had any detrimental effect their component parts according to the on 'normal competition' within the essential issues of law involved meaning of Article 65 of the ECSC Treaty (fifth ground of appeal) and

8. The submissions relating to the individ- ual grounds of appeal and their component parts indicate that the appellant is alleging several breaches of the ECSC Treaty. Summarised according to the essential — the adoption of the Decision issues of law involved, the appellant is against the appellant was unlawful arguing that in the judgment under appeal (first ground of appeal). the Court of First Instance breached Com- munity law in that it:

— erred in law in accepting the formal legality of the Decision, even though 9. The examination which follows will base itself around this summary. The grounds of appeal put forward by the appellant and the subdivisions and argu- — its procedural rights had been ments contained therein, together with the infringed in the procedure before Commission's arguments, will be set out the Commission (fourth ground of under these individual points. appeal) and

— the Decision was not properly adopted (second and third grounds of appeal); 10. The grounds of appeal in the present proceedings substantively correspond in part to the grounds of appeal and their subdivisions submitted in Case C-194/99 P Thyssen Stahl v Commission. 6 My — erred in law in accepting the substan- Opinion in that case is also being delivered tive legality of the Decision, today. Where the content of the sub- missions is the same I will refer in this Opinion to the appraisal that I have under- taken in my Opinion on Case C-194/99 P. — even though the practices com- plained of in the Decision could 6 — [2003] ECR I-10821.

14. The Commission considers that the appellant is not taking into account the fact that the documents mentioned by it 12. In paragraph 78 of the judgment in the were documents internal to the Commis- ICI case 8 the Court of First Instance itself sion and points out that, according to the stated that failure to provide information case-law of the Court of Justice,9 those constitutes an infringement of the rights of documents did not have to be disclosed the defence where the information 'might during the administrative procedure. The have influenced the course of the procedure case-law cited by the appellant, however, and the content of the decision to the relates to documents that come from other undertakings involved in the investigation. 7 — J o i n e d Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström and Others v Commission [1993] ECR 1-1307. 9 — Case T-7/89 Hercules Chemicals v Commission 11991] ECR 8 — Case T-36/91 ICI v Commission [1995] ECR 11-1847. II-1711.

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OPINION OF MRS STIX-HACKL — CASE C-176/99 P

15. The Commission observes, with refer- 18. There is no need to go any further into ence to the arguments raised by the then the question raised by the appellant as to applicants summarised by the Court of whether Community law allows the alleged First Instance in the order of 19 June procedural error by the Commission to be 1996, 10 that the appellant has itself con- remedied during the judicial proceedings in ceded that the principle of confidentiality the Court of First Instance 11because — as of internal documents of the Commission indicated — the Commission did not com- applies in the administrative procedure. mit any procedural error.

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ARBED v COMMISSION

under appeal. It submits that the Court of 24. If the Court should find the ground of First Instance clearly misconstrued the appeal admissible, the Commission takes minutes of the Commission session on the view that it is unfounded. The Court of 16 February 1994 at which the Decision First Instance properly took into account was adopted in relation to the question of the list on page 2 of the minutes of the whether the necessary quorum was present session, the purpose of which was to when the Decision was adopted. provide an exact record of the Commission Members who were present at or absent from the meeting concerned. To cast doubt on the accuracy of that list on the basis of another excerpt from the minutes that did not have that purpose would be tanta- mount to allowing the indirect con- 21. There is no reason to give precedence sequences of a document the content of over the attendance list on page 40 of the which has nothing at all to do with the minutes to the list of Commission Members issue under examination to take priority who were present on page 2. As the Court over evidence that does directly concern of First Instance itself states in that issue. This is contrary to the principle paragraph 125 of the judgment under that Community measures enjoy a pre- appeal, the first list mentioned above states sumption of validity. that 'in the absence of the Commission Members [certain Commissioners' Cabinet members]... attended the session'.

25. The Commission is finally of the opinion that the appellant is misinterpret- ing page 40 of the minutes. As the Court of First Instance stated, the presence of Com- 22. Citing the case-law of the Court, 12 the missioners' Heads of Cabinet at a session of appellant stresses the importance of com- the Commission does not necessarily sig- pliance with the principle of collegiate nify that the Commissioners were absent responsibility, which requires such com- from the whole of the session. pliance to be 'ensured'.

Submissions of the parties 32. The Commission refers to the state- ments made by the Court of First Instance in paragraph 141 et seq. of the judgment under appeal. The Court of First Instance 28. The appellant takes issue with properly referred to the presumption of paragraph 143 et seq. of the judgment validity applying to Community actions under appeal in which the Court of First and to the fact that the Rules of Procedure Instance erred in its assumption that the of the Commission did not stipulate the Commission authenticated the Decision manner in which documents had to be properly — that is to say, in accordance annexed to each other; it also found that with Article 12(1) of the Commission's the appellant had not proven that the 1993 Rules of Procedure. documents were not annexed.

29. However, this would only be the case if 33. Finally, the Court of First Instance the wording of the Decision were firmly observed that the appellant had not demon- attached to the minutes and the minutes strated that there was any material dif- bore the signatures of the President and ference between the notified version of the

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ARBED v COMMISSION

Submissions of the parties 38. The Court of First Instance did never- theless state in paragraph 632 of the judg- ment under appeal that 'there is no need to

36. The appellant takes issue with 13—The judgments of the Court of Justice in Case 13/60 paragraph 295 et seq. of the judgment Galling and Others v High Authority [1962] ECR 83 and of the Court of first Instance in Case T-239/94 EISA v under appeal. It considers that in Commission [1997| LCR II-1839.

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OPINION OF MRS STIX-HACKL — CASE C-176/99 P

39. The Commission contends, with refer- ence to paragraph 293 et seq. of the judgment under appeal and paragraph 297 Appraisal et seq. in particular, that the Court of First Instance properly ruled that, even in the context of the ECSC Treaty, Article 65 could not be interpreted as meaning that practices that are incompatible with the 42. Since the arguments put forward essen- objective and wording of that provision tially correspond to those presented by the should be permitted. appellant Thyssen Stahl AG in Case C-194/99 P, I refer, in relation to the grounds on which the fifth ground of appeal should be dismissed as unfounded, to paragraph 135 et seq. of the Opinion that I am delivering today in the afore- 40. The Court of First Instance exhausti- mentioned case. Those grounds apply vely investigated the conduct of the Com- mutatis mutandis. mission during the course of the measures covered by the investigation and took the view that the Commission had never sup- ported the various undertakings' restrictive practices and that, even if it were proven 43. It must also be stated with regard to that the Commission had tolerated them, paragraph 632 of the judgment under this would not have had the effect of appeal that the allegation that the Court discharging the appellant from its liability. of First Instance did not consider the The Court of First Instance did take the arguments of the then applicant is incor- Commission's conduct into account, how- rect. That issue is dealt with in ever, in reducing the size of the fine on the paragraph 293 et seq. of the judgment grounds that, because of that conduct, a under appeal. The substance of the passage I-10698

47. Firstly, the appellant takes issue with paragraph 92 et seq. of the judgment under 44. The fifth ground of appeal must there- appeal. It considers that the Court of First fore also be dismissed as unfounded in that Instance infringed its rights of defence; in respect. the paragraphs cited it justified the adop- tion of the Decision against the appellant on grounds that were not those given to TradeARBED by the Commission in the statement of objections. Hence, neither 45. The fifth ground of appeal, alleging TradeARBED nor the appellant itself were that the assessment of the substantive able to safeguard their rights of defence; legality of the Decision was defective in during the administrative procedure Tra- law, must therefore be dismissed in its deARBED was unable to submit its obser- entirety as unfounded. vations on a reason that had not been given in that form in the statement of objections and it itself had not been able to submit its observations on the reasoning of the Court of First Instance since it is not reflected in the Decision in that way. C — The ground of appeal taking issue with the adoption of the Decision against the appellant (first ground of appeal)

Submissions of the parties 48. The Commission considers that the problem of the appellant not having been formally and expressly informed that the Commission intended to impute liability to it for the conduct of TradeARBED was 46. The appellant takes the view that the widely discussed in the proceedings before Court of First Instance erred in law in the Court of First Instance so that the

appellant was in a position to exercise its 51. The appellant takes issue, thirdly, with rights of defence within that framework. paragraph 98 et seq. and accuses the Court Citing the case-law of the Court of Jus- of First Instance of having based the judg- tice 14 the Commission contends that the ment under appeal on inconsistent reason- Court of First Instance could also have ing tantamount to an absence of reasoning. considered this issue of its own motion. On the basis of one and the same fact it simultaneously concluded that, on the one hand, there was uncertainty as to the individual roles and responsibilities of the appellant and its subsidiary TradeARBED whilst, on the other, the appellant had assumed right from the start that the Commission was imputing liability to it 49. The appellant takes issue, secondly, for the conduct of its subsidiary Tra- with the statements by the Court of First deARBED. Instance in paragraph 92 of the judgment under appeal according to which, in relation to the question of whether both undertakings are considered in law to be one and the same 'undertaking' for the purposes of Article 65(1) of the ECSC Treaty, 'it is established that TradeARBED 52. In the opinion of the Commission the does not determine its conduct on the appellant has misconstrued the judgment Community market in beams indepen- u n d e r a p p e a l . In c o n c l u d i n g in dently, but in all material aspects carries paragraph 98 of the judgment under out the instructions given to it by the appeal, from the findings in paragraph 97, applicant (ARBED)'. The Court of First that there was uncertainty as to the par- Instance based that appraisal on an asser- ticular roles and responsibilities of the two tion that it did not justify in any way, so companies, the Court of First Instance did that it was in breach of the duty to provide not decide that this uncertainty had an reasons. effect on the appellant. Its findings showed that there was no uncertainty as to the roles and responsibilities of the two companies on the appellant's part as it was apparently never in any doubt that the administrative procedure was directed against it. The observation by the Court of First Instance in paragraph 99 of the judgment under 50. The Commission contends that appeal, that the appellant took it for a d e q u a t e r e a s o n s were given for granted from the outset that the Commis- paragraph 92 of the judgment under appeal sion was holding it liable for the conduct of and that it justifies the conclusion that the its subsidiary TradeARBED, was a logical case-law of the Court of Justice cited in consequence of the fact that during the paragraphs 90 and 91 of the judgment administrative procedure the appellant had under appeal can be transposed to ARBED. always acted as if it were the subject of investigation by the Commission at the same time as its subsidiary. This follows 14 — Case C-252/96 P Parliament v Gutiérrez de Quijano y from the matters described in paragraph 96 Lloréns [1998] ECR I-7421 and Case C-320/92 P Finsider v Commission [1994] ECR I-5697. of the judgment under appeal.

53. The appellant alleges, fourthly, that the which was also communicated to Tra- Court of First Instance misconstrued the deARBED, was answered by the appel- scope of the statement of objections by lant's counsel. relying on matters not contained in that statement. It refers, in particular, to the matters described in paragraph 96 of the judgment under appeal which the Court of First Instance took into account when determining the scope of the statement of 56. In the opinion of the Commission objections. errors by the Court of First Instance 'relat- ing to the facts' are not open to review by the Court. Furthermore, the Court of First Instance did not take that evidence as the basis for an assumption that the applicant was the addressee of the statement of 54. The Commission considers that the objections. The Court of First Instance appellant is distorting the appraisal by the simply used the evidence to support the Court of First Instance, which never ques- conclusion that ARBED had been aware of tioned the fact that TradeARBED was the that statement. addressee of the statement of objections. The Court of First Instance simply exam- ined various aspects of fact in order to establish whether the appellant was aware of the objections that the Commission had raised in the statement to its subsidiary. 57. Finally and sixthly, the appellant com- Furthermore, it examined whether the plains that the Court of First Instance appellant had also been in a position to clearly erred in law in preventing the submit its observations on it and whether observance of its rights of defence, which the adoption of the Decision against the is a fundamental right, by putting simple appellant because of the conduct of its requests for information by the Commis- subsidiary did therefore infringe the appel- sion on a par with the statement of lant's rights of defence. objections. The appellant refers to paragraph 100 of the judgment under appeal in which the Court of First Instance states that it had an opportunity to submit its observations on the imputation of liability contemplated by the Commission 55. The appellant alleges, fifthly, that the when it was requested to provide infor- Court of First Instance had made an mation concerning its own turnover. obvious error of fact that was tantamount to defective reasoning. As proof that the appellant was aware that it was being held liable for the alleged infringements from the outset, it relied on the fact that a number of requests for information made 58. This mere request for information does to TradeARBED by the Commission were not contain any of the characteristic fea- answered by the appellant's legal depart- tures of a statement of objections. Even if it ment and that the statement of objections, were to be deemed such a statement, it did

60. In the second argument on the first 15 — The Court of First Instance refers to the relevant case-law ground of appeal the appellant takes issue in paragraph 90 of the judgment under appeal. in law with the assumption by the Court of 16 — For the established case-law see, for example, the order of the Court in Case C-479/00 P(R) Commission v Gerot First Instance that the Commission [2001] ECR 1-3121.

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2. The addressee of the statement of objec- would be unnecessary in principle to tions answer the question of whether the Court of First Instance erred in law in its assess- ment of the problem of whether the appel- lant knew or should have known of the risk of it being held liable for the conduct of its 64. In the other arguments on the first subsidiary if the Decision were to prove ground of appeal the appellant takes issue, invalid simply because it was directed at an all in all, with what it considers to have addressee that was not a formal addressee been its lack of proper involvement in the of the statement of objections. procedure before the Decision was adopted. This is based on the following:

68. It is therefore necessary to start with the basic question as to whether the Court 65. In the first, fourth and sixth arguments of First Instance erred in law, in the on the first ground of appeal the appellant paragraphs of the judgment under appeal takes issue with the alleged error of law in the subject of complaint, in its assessment failing to rule that its rights of defence had of the question of the appellant's involve- been infringed as a result of the fact that it ment in the procedure before the Commis- was not a formal addressee of the statement sion. of objections and was therefore not for- mally a party to the procedure before the Commission.

'It is settled case-law that the statement of objections must set forth clearly all the essential facts upon which the Commission is relying at that stage of the procedure. The essential procedural safeguard which the statement of objections constitutes is an application of the fundamental principle of 71. What then is the significance of that Community law which requires the right to case-law in relation to the observance of a fair hearing to be observed in all proceed- the rights of the defence in a case such as ings (Joined Cases 100/80 to 103/80 this one in which — in contrast to the Musique Diffusion Française and Others v CMB case — the issue is not so much the Commission [ 1 9 8 3 ] ECR I 8 2 5 , content of the statement of objections but paragraphs 10 and 14). the fact that the statement of objections was not addressed to the subsequent addressee of the Decision? The starting point for these reflections must be the question of observance of the rights of the defence — something that was also given pre-eminence in the CMB judgment. It follows that the Commission is required to specify unequivocally, in the statement of objections, the persons on whom fines may be imposed.

However, that does not mean to say that it 75. If, therefore, in a group situation there must also have been clear to it that the is a possible conflict' of interests with regard Commission intended to make use of that to a defence the fact that the statement of legal possibility in this specific case. objections is addressed to undertakings with potential liability serves as a clear warning that the Commission is specifically contemplating liability and that there might therefore be a particular need for individual defences to be put forward. However, a statement of objections will not meet that specific objective of giving a warning if the parties potentially liable are merely aware 73. This distinction is vital because only of its contents; the statement of objections the certainty that the Commission was must also be formally addressed to them. actually considering holding the appellant liable for the practices of TradeARBED would have produced a separate need for a defence.

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the Decision against the appellant even 80. In paragraph 101 of the judgment though the statement of objections had under appeal the Court of First Instance only been sent to TradeARBED. states:

'Having regard to all the facts of the case, moreover, the Court considers that Mr Temple Lang's letter of 30 June 1992, in which he stated that ARBED was not the 3. The possibility of an error of form being addressee of the statement of objections remedied by the appellant's own conduct and apparently denied it the right of access to the file for that reason, regrettable though it might be, did not in fact adversely affect the applicant's rights of defence...'

ARBED v COMMISSION

83. In this case therefore it would only be 86. It must therefore ultimately be deter- at all conceivable for that failure to address mined on the whole, with regard to the first the statement of objections to be remedied ground of appeal, that in paragraph 92 ct if it were to be irrefutably established from seq. of the judgment under appeal the indisputable facts that in the appellant's Court of First Instance simply undertook case there was no (further) need for that an appraisal of evidence with regard to the particular warning function (the need for question of whether the content of the an individual defence argument). This statement of objections was known to the would only be the case if it were to be appellant and whether the conditions for proven that the appellant was fully aware such liability (single 'undertaking') were of the need for an individual defence and satisfied. did nothing to satisfy that requirement due only to reasons that lay solely within its domain.

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It may then itself give final judgment in the IV — Costs matter, where the state of the proceedings so permits, or refer the case back to the Court of First Instance for judgment.

91. In this case the files are sufficiently 93. Under Article 32 of the ECSC Statue complete for the Court of Justice to decide and Article 122(1) of its Rules of Pro- the matter itself; the case does not therefore cedure, where the appeal is well founded have to be referred back to the Court of and the Court itself gives final judgment in First Instance. the case, the Court is to make a decision as to costs. Under Article 69(3) of its Rules of Procedure, applicable to the appeal pro- cedure by virtue of Article 118, the Court may order costs to be shared or order each 92. As only one of the grounds of appeal is party to bear its own costs where each well founded the judgment should only be party succeeds on some and fails on other set aside to that extent and the Decision heads or if there are exceptional circum- amended accordingly. Consequently, the stances. Since only the ground of appeal judgment should only be set aside to the relating to the fine is well founded — and extent that it upholds the legality of the then only in part — it would appear adoption of the Decision against the appel- reasonable for the appellant to bear its lant. Articles 4 and 6 of the Decision should own costs and three-quarters of the Com- be annulled with regard to the appellant. mission's costs.

V — Conclusion

94. In the light of the foregoing, I accordingly propose that the Court: