C-179/99

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OPINION OF MRS STIX-HACKL — CASE C-179/99 P

30 June 1990 and was replaced with an 4. A number of the undertakings concerned individual and voluntary information and the appellant brought actions against scheme. 4 the Decision before the Court of First Instance, which dismissed the appellant's application.

5. On 17 May 1999 the appellant lodged an appeal against that judgment at the Registry of the Court of Justice.

3. On 16 February 1994 the Commission adopted 'Decision 94/215/ECSC... relating to a proceeding under Article 65 of the I I — Forms of order sought and pleas in ECSC Treaty concerning agreements and law concerted practices engaged in by European producers of beams' 5 (hereinafter 'the Decision') against 17 European steel under- takings and one of their associations, the 6. In its appeal the appellant claims that the European Confederation of Iron and Steel Court should: Industries, Eurofer ASBL (hereinafter 'the appellant'). The undertakings named in the Decision had, in the Commission's view, infringed the competition law of the Euro- pean Coal and Steel Community by estab- — set aside the judgment of the Court of lishing information exchange systems, fix- First Instance of 11 March 1999 in ing prices and sharing markets contrary to Case T-13 6/94 Euro f er v Commission competition law. The Commission imposed in its entirety; fines on 14 of the undertakings. In the case of the appellant, as an association, the Commission stated in Article 2 of the Decision that it had 'infringed Article 65 of the ECSC Treaty by organising an — allowing in full its application at first exchange of confidential information in instance, annul Article 2 of Commis- connection with the infringements com- sion Decision C(94)321 of 16 February mitted by its members...' In addition, 1994 and that part of Article 3 of that Article 3 of the Decision contains a decision which concerns the appellant; restraining order, which is also addressed to the appellant.

'Infringement of Article 65(1) of the ECSC Treaty and failure by the Court of First Instance to respect the limits of its jurisdic- 7. In its appeal, the appellant puts forward tion ratione materiae by reason of its the following pleas in law: misinterpretation of the concept "... tend- ing..." in the application of that concept to allegedly anti-competitive consequences of the Eurofer information exchange.'

First plea in law:

Fourth plea in law: 'Infringement of Article 65(1) of the ECSC Treaty as a result of misinterpretation of the concept "decisions by associations of undertakings".' 'Infringement of Articles 15, first para- graph, and 65(1) of the ECSC Treaty as a result of misinterpretation and misappli- cation of the concept "prevent, restrict or Second plea in law: distort... compétition" and of contradictory reasoning in the application of that concept to the information exchange organised by Eurofer.'

'Infringement of Article 15, first paragraph, of the ECSC Treaty by reason of grounds which are wrong in law, intrinsically contradictory and exceed the limits of the 8. In substance, the pleas in law in these Court of First Instance's jurisdiction proceedings correspond to some extent to

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OPINION OF MRS STIX-HACKL — CASE C-179/99 P

10. Furthermore, in paragraph 130 of the contested judgment the Court of First Instance wrongly stated that Article 65(1) of the ECSC Treaty was applicable to an association's activities even though an association could infringe the prohibition III— Examination of the case of cartels only if it conducted itself as an undertaking. The Court of First Instance was wrong in relying on the judgment of the Court of Justice in Sorema,7 since that judgment concerned a case in which the distribution activities of its members were A — The plea in law, alleging misinter- imputed to the association. pretation of the concept 'decisions by associations of undertakings' within the meaning of Article 65(1) of the ECSC Treaty (first plea in law) 11. In response to those arguments, the Commission states that a series of factors, whose existence is not denied by the Arguments of the parties appellant, led the Court of First Instance to conclude in paragraph 110 et seq. of the contested judgment that there had been a decision by the appellant. That finding is an assessment of the facts and, as such, cannot therefore be challenged on appeal. 9. The appellant objects to paragraph 109 et seq. and 137 et seq. of the contested judgment. It submits that the Court of First Instance was wrong in finding that there was a decision by the association. In so doing, it failed to recognise the purpose of a 12. In paragraphs 112 and 204 of the 'decision' by an association of undertak- contested judgment the Court of First ings. As a decision by an association is Instance found that in parallel with the 'only an organisational sub-category of exchange of information by the undertak- agreements between undertakings and not

ings in the Poutrelles Committee there had proceedings at first instance, where the been an exchange of information organised participation of the appellant's members in by the appellant. It thus rightly found that, the information exchange system organised in addition to the agreement between the by the appellant fulfilled, according to the undertakings, there was a decision by the findings of the Court of First Instance, a association. Article 65 of the ECSC Treaty triple function: the participation of the cannot be interpreted as meaning that a appellant's members in the information decision by an association is no more than exchange system constituted, first, an a sub-category of an agreement between infringement of competition law by the undertakings. members themselves and, second, evidence of a 'decision' of the appellant as an association; third, the organisation of the information exchange system constituted an infringement of competition law by the 13. Article 65(1) of the ECSC Treaty treats appellant itself. associations of undertakings explicitly as entities which may infringe competition law. It is incompatible with this for the appellant association to impute its conduct to its members and to seek to have its decision characterised as no more than a residual element. 16. In so far as the existence of a decision by the appellant is inferred from the par- ticipation of its members, what is con- cerned is a finding of fact which — subject to a distortion check — is not, as such, 14. As the Court of First Instance had open to review 8 in the appeal proceedings. rightly recognised in paragraph 131 of the To this extent, then, the first plea in law is contested judgment, Article 65(1) of the inadmissible. ECSC Treaty applies to specific activities of associations and not only to their own activities as undertakings. This would be superfluous if that provision covered the conduct of such associations only where it was already governed by the rules concern- ing undertakings. 17. From the contested judgment it is also evident that the Court of First Instance proceeds from the view that the conduct of undertakings may constitute an infringe- Assessment ment of competition law and that a decision which this conduct proves has been taken by the relevant association of

18. However, no basis for that conclusion 20. If that order is addressed to the can be found in Article 65 of the ECSC members of the association, it can apply Treaty. 9The appellant's view is indeed to only to those members to which the be endorsed in so far as the liability of decision is addressed (see Article 3 in associations under competition law serves conjunction with Article 1 of the Decision). as a 'fall-back' in those cases where con- If, merely because a decision is already duct of undertakings which are members of addressed to some of its members the the association is not based on agreements restraining order can no longer be between or concerted practices of the addressed to the association as such, the undertakings, but results from the conduct association would not usually be prohibited of the association. This does not in any way from continuing to apply the decision mean, however, that the application of unchanged with other or new members. Article 65 of the ECSC Treaty to associ- ations is limited to that case. This becomes clear from the following considerations:

22. As regards the appellant's submission that Article 65(1) of the ECSC Treaty Arguments of the parties should apply to an anti-competitive decision by an association only if it has been taken by the association in the exer- cise of its business activities as an under- taking, suffice it to say that such a principle cannot, on the whole, be deduced from the case-law of the Court of Justice. 1 1As the 25. In its arguments under the second plea Commission rightly states, a principle of in law, the appellant challenges the inter- this nature would also be superfluous since pretation in paragraph 169 et seq. of the associations infringing competition law in contested judgment of Article 2 of the the course of their own business activities Decision. It argues that the Court of First would, in any case, be deemed to be Instance failed to recognise an infringement undertakings within the meaning of by the Commission of the requirement in Article 65(1) of the ECSC Treaty and the Article 15 of the ECSC Treaty that it give a application of that provision to 'associ- statement of reasons, although the Decision ations' would seem superfluous. contains contradictory reasoning in regard to the finding in Article 2 that the appellant had organised its information exchange system 'in connection' with the infringe- ments committed by its members. 23. The first plea in law must therefore to that extent be rejected as unfounded.

27. In addition, the Court of First Instance pliance with domestic markets, namely on exceeded the limits of its jurisdiction a non-autonomous, support role played by ratione materiae in paragraph 191 of the the exchange of information. contested judgment by adding new facts to the facts of the case. In particular, it found that the appellant's members had continued to operate the quota system which had expired on 30 June 1988, drawing con- clusions from this regarding the illegality of the information exchange system organised by the appellant. The alleged continuation 30. It denies that the information exchange of the quota system does not, however, system in itself could have restricted com- have any basis either in the facts as stated in petition. An information exchange system the Decision or in the judgment itself. is capable of restricting competition only if the participants' freedom of entrepreneurial action and decision-making had been limited by the flow of data. However, this would have been the case only if the participants had refrained from actions of a competitive nature because of the agreed notification of data, since the competitive edge likely to result would have been 28. In its arguments under the fourth plea immediately offset by ensuing actions of a in law the a p p e l l a n t c h a l l e n g e s like nature on the part of the other partici- paragraph 185 et seq. of the contested pants. judgment, in which it sees a legally erron- eous interpretation and application of the concept 'prevent, restrict or distort compe- tition' in Article 65(1) of the ECSC Treaty.

32. The Commission begins by claiming t h a t the a p p e l l a n t has m i s r e a d paragraph 191 of the judgment. It is not said there that the undertakings had con- tinued to operate the quota system beyond 36. The Commission submits, finally, that, 30 June 1988. The Court of First Instance in criticising the observations of the Court had said, purely and simply, that the of First Instance on the homogeneity of the undertakings could have used the exchange products, the appellant is attacking the of information to monitor the extent to establishment and assessment of facts on which each of them continued to comply which the Court based the statement that with their domestic markets, which had the information exchanged is capable of served as the basis for the quota system. appreciably influencing the conduct of the participants. The complaint is therefore inadmissible.

33. As regards the finding by the Court of First Instance that a separate infringement Assessment was committed, the Commission first sub- mits that this is a finding of fact is not amenable to review by the Court of Justice.

42. The second and fourth pleas in law complaining of the failure to appreciate that the information exchange system did not constitute a separate infringement of 39. As the Court of First Instance did not competition law should therefore be therefore exceed its jurisdiction, the second rejected as being partly inadmissible and plea in law should be rejected as unfounded otherwise unfounded. in this respect.

40. To the extent that the appellant objects that the contested judgment confirmed the C — The plea in law alleging misinterpre- Decision on its substance in stating that the tation of the term 'tending' in Article 65(1) information exchange system organised by of the ECSC Treaty and failure by the the appellant was used (by its members) for Court of First Instance to respect the limits the preparation and commission of other of its jurisdiction (third plea in law) infringements of competition law and should also be seen as a separate 12 infringement by the appellant, the appel- Arguments of the parties

12 — The appellant complains only about the assumption that the information exchange system it organised was separate in substance from its members' pricing agreements and market-sharing operations. It does not also object, for example, to the distinction between those responsible for the two forms of infringement of competition law (a 4 3 . T h e appellant objects to situation of this nature did not obtain from the outset in Case C-194/99 P) or to the assessment of its action along paragraphs 191 and 195 et seq. of the these lines as being 'separate'. contested judgment. I - 10736

45. In paragraph 191 of the contested 48. Nor did the Court of First Instance judgment the Court of First Instance had infringe Article 65 of the ECSC Treaty. The found that the information exchange sys- wording 'tendre à' (to tend to) corresponds tem was used to monitor the unlawfully to the wording in Article 85 of the EC prolonged quota system and therefore, 'by Treaty (now Article 81(1) EC) 'have as its very nature', tended to maintain the their object or effect'. Furthermore, the compartmentalisation of the markets. The verb 'tendre à' also means 'to have a Court had thus exceeded its jurisdiction tendency to...', 'to evolve in such a way as ratione materiae by finding a fact (continu- to...'. It is enough, then, for the agreement ation of the quota system) which was not to to tend objectively to restrict competition. be found in the Decision. The subjective goal of the conduct cannot be the decisive point.

54. The observations of the Court of Jus- tice on the anti-competitive nature of certain information exchange systems under the EC Treaty can be applied by analogy to the ECSC Treaty even without this question being considered. 51. On the other hand, the Court of First Instance is said to have exceeded its juris- diction by replacing the concept 'result' in the Decision by that of 'tend' in the contested judgment in regard to the infor- mation exchange system. As the latter complaint is logically connected to the appellant's submission that the Court mis- 55. The Court of Justice has held that interpreted Article 65(1) of the ECSC certain information exchange systems to Treaty with respect to the term 'tending', be anti-competitive on the grounds they are the two issues will be considered together. inconsistent with the 'postulate of the independence' 15 of the Community's com- petition law since they 'reduce[s] or remove [s] the degree of uncertainty as to the operation of the market' and are 'therefore liable to have an adverse influence on competition between manu- facturers'. 16 52. The appellant evidently believes that it follows from Article 65(1) of the ECSC Treaty that only conduct which has anti- 14 — Judgments in Case 56/65 Société Technique Minière v competitive effects on the market as its Maschinenbau Ulm [1966] ECR 282 and Case C-49/92 P Commission v Anie Partecipazioni [1999] ECR 1-4125. object may constitute an infringement of Only where the purpose is not, or cannot be proved to be, to restrict competition is the effect on the market competition law. significant. 15 — Judgments of 14 July 1972, for example in Case 48/69 ICI v Commission [1972] ECR 619. 16 — Judgment of the Court of Justice in Case C-7/95 P Deere v 13 — See paragraph 37 above. Commission [1998] ECR I-3111, paragraph 90.

IV — Conclusion

59. For the above reasons it is therefore proposed that the Court of Justice should

— dismiss the appeal;

— order the appellant to pay the costs of the proceedings.

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