C-182/99

OPINION OF MRS STIX-HACKL — CASE C-182/99 P

OPINION OF ADVOCATE GENERAL STIX-HACKL delivered on 26 September 2002 1

Table of contents

I — Introduction I _ 10765

II —• Forms of order sought and grounds of appeal I -10766

III — Examination of the case I -10768

2. The adverse effect which the information exchange system had on 'normal competition' within the meaning of Article 65 of the ECSC Treaty (sixth ground of appeal) I -10782

D — The ground of appeal relating to inadequate grounds for the fine (fifth ground of appeal) 1-10784 TV — Conclusion I -10785

1 — Original language: German.

I - 10764

SALZGITTER v COMMISSION

I — Introduction relating to a proceeding pursuant to Article 65 of the ECSC Treaty concerning agreements and concerted practices engaged in by European producers of beams' 5(hereinafter 'the Decision'). The parties to which the Decision was addressed had, in the Commission's view, 1. The present case is an appeal brought breached the competition law of the Euro- against the judgment delivered by the Court pean Coal and Steel Community by estab- of First Instance on 11 March 1999 in Case lishing, in an anti-competitive manner, T-148/94 ('the judgment under appeal'). 2 systems for the exchange of information and engaging in price-fixing and market- sharing. The Commission imposed fines on 14 of the undertakings. In the case of Preussag Stahl AG, now called Salzgitter Stahl AG (hereinafter 'the appellant'), the Commission imposed a fine of ECU 9 500 2. Reference is made to the judgment under 000. appeal for the historical background to relations between the steel industry and the Commission from 1970 to 1990, and in particular the rules adopted to deal with the manifest crisis and Commission Decision No 2448/88/ECSC of 19 July 1988 introducing a surveillance system for certain products of undertakings in the steel industry ('Decision No 2448/88'). 3 The surveillance system established pursuant to 4. Several of the undertakings concerned, the said Decision expired on 30 June 1990 including the appellant, together with the and was replaced by an individual and trade association, challenged the Decision voluntary information scheme. 4 before the Court of First Instance. The Court of First Instance ultimately allowed the appellant's claim in part and reduced the fine to EUR 8 600 000.

(3) order the Commission to pay the costs of the proceedings in the Court of First 7. According to its statement of appeal, the Instance and those of the present appellant invokes the following grounds of appeal. appeal:

In the alternative First ground of appeal: 'Wrongful com- position of the Chamber for the pronounce- reduce the amount of the fine imposed ment of judgment' on Preussag Stahl AG under Article 4 of Commission Decision C(94)321 final, which was fixed at EUR 8 600 000 by the Court of First Instance in paragraph 2 of the judgment under Second ground of appeal: 'Improper failure appeal; to consider evidence' I - 10766

SALZGITTER v COMMISSION

Third ground of appeal: 'Error in law in the the Court of First Instance committed authentication of the adoption and sub- procedural errors in that: stance of the Decision'

— the judgment under appeal was pro- Fourth ground of appeal: 'Infringement of nounced by a Chamber with the wrong the appellant's rights of defence by the composition (first ground of appeal) Commission' and

Fifth ground of appeal: 'Inadequate reasons — it wrongfully failed to take evidence for the Commission Decision (Article 15 of (second ground of appeal) the ECSC Treaty)'

though no breach of Article 65(1) of 10. The grounds of appeal in the present the ECSC Treaty had been committed, proceedings substantively correspond in because part to the grounds of appeal and their subdivisions submitted in Case C-194/99 P Thyssen Stahl AG v Commission of the European Communities. 7My Opinion in that case is also being delivered today. participation in the information Where the content of the submissions is the exchange system 6did not constitute a same I will refer in this Opinion to the separate infringement of competition appraisal that I have undertaken in my (seventh ground of appeal) and Opinion on Case C-194/99 P.

the system for the exchange of infor- mation and the fixing of prices could not have had any detrimental effect on I I I— Examination of the case 'normal competition' (sixth ground of appeal);

A — The grounds of appeal alleging errors — failed to take cognisance of the erro- of procedure by the Court of First Instance neous grounds given for the fine (fifth ground of appeal).

1. The wrongful composition of the 9. The examination which follows will Chamber (first ground of appeal) base itself around this summary. The grounds of appeal put forward by the appellant and the subdivisions and argu- ments contained therein, together with the Submissions of the parties Commission's arguments, will be set out under these individual points.

6 — The appellant speaks of 'the monitoring of orders and deliveries' (in the singular) but is obviously referring to both 11. The appellant is alleging infringement the monitoring of orders and deliveries within the Poutrelles Committee and the exchange of information within the of Article 46 in conjunction with Article 31 Walzstahl-Vereinigung. As the existence of two systems of of the ECSC Statute of the Court of Justice information exchange which supplemented each other (see paragraph 371 of the judgment in Case T-141/94 [cited in and of Article 32(1) and (3), Article 33(3) footnote 4]) does not, in the appellant's case, appear to have had any bearing on the Decision, on the judgment under appeal or on the appellant's submissions, references in what follows shall uniformly be to 'the' information exchange system in the singular. 7—[2003] ECR I-10821.

and (5) and Article 82(2) of the Rules of 15. This means that either the judges whose Procedure of the Court of First Instance terms of office risk coming to an end on a (hereinafter, the 'Rules of Procedure'). rotational basis before all the deliberations are concluded should, under Article 32(1) of the Rules of Procedure, resign before the deliberations take place, or that the Court of First Instance should schedule the final deliberations, including the adoption of the judgment, to give sufficient time to enable 12. The judgment under appeal was signed all of the judges to take part. There would by three judges. It does not bear the have been enough time for this to be signature of the President, who had in any achieved because there was a period of event been President of the Chamber until almost six months between the oral pro- the oral proceedings came to a close, nor ceedings and the end of the terms of office, the signature of another judge who was on 17 September 1998, of two of the judges also present during the oral proceedings. As involved; furthermore, any documents the President and the aforementioned judge required for the deliberations, such as both took part in the deliberations but did transcripts of the testimony of the wit- not sign the judgment, the appellant sub- nesses, had been available by June 1998. mits that there was a breach of Article 82(2) The appellant avers that the present case of the Rules of Procedure and of Article 31 differs in this respect from that which of the ECSC Statute of the Court of Justice. formed the basis of the judgment by the Court of First Instance in Finsider v Com- mission. 8 In deciding that judgment, the Court of First Instance correctly relied on Article 32(1) of the Rules of Procedure as two of the judges had resigned before the 13. The reference to Article 32 of the Rules deliberations began. of Procedure made in paragraph 69 of the judgment under appeal does not justify the procedure that was adopted because Article 32(1) of the Rules of Procedure, which deals with the retirement of judges, does not cover participation in the adop- tion of the judgment but participation in the deliberations. 16. Nor is Article 32(1) of the Rules of Procedure relevant as this was not an instance of a judge being 'prevented from attending' since, although there were no compelling reasons for doing so, the timing of the final deliberations was arranged in such a way that it was foreseeable that 14. The principle that can therefore be certain judges would be prevented from derived from Article 32(1) in conjunction attending due to the expiry of their terms of with Article 33(3) and (5) of the Rules of office. 'If a judge were deemed to be Procedure, the appellant argues, is there- fore that: 'Whosoever does not participate in the judgment should not participate in 8 — Judgment by the Court of First Instance in Case T-26/90 the deliberations either'. Finsider v Commission |1992| ECR 11-1789.

17. The Commission refers to Article 33(5) of the Rules of Procedure, from which it follows that participation in the deliber- ations means participation in the final 20. The guarantee of a lawful judge has not discussion and casting of votes. The par- been infringed because the judges who were ticipation of judges at the beginning of the ultimately to decide this case were fore- deliberations is therefore not crucial to the seeable as clearly and accurately as possible decision of the Court of First Instance. Nor from the composition of the Chamber. The can there be any requirement for the judg- fact that the deliberations had not been ment to be signed by those judges who only concluded by the date on which both took part in deliberations at the beginning judges resigned in September 1998 is but were not present when the votes were immaterial. The consequences of the delib- finally cast. e r a t i o n s not being c o n c l u d e d by 17 September 1998 were clearly and pre- cisely anticipated: the judgment would be pronounced by the three remaining judges. 18. According to the Commission, the appellant's criticism of the reference to Article 32 of the Rules of Procedure of the Court of First Instance in paragraph 69 of the judgment under appeal is unfounded. When the resignation of members of a Appraisal Chamber is imminent it will often not be clear right from the start whether the final discussion and vote on the individual issues to be decided will take place before or after their resignation. In the present case it is not apparent that the President of the 21. In my opinion the appellant's argument Chamber scheduled the deliberations in is based on an incorrect understanding of such a way that the final discussion and the Rules of Procedure. The principle that vote did not take place until after his 'whosoever does not participate in the resignation and the resignation of the other judgment should not participate in the judge. Article 32 governs participation in deliberations either', asserted by the appel- the deliberations, including the final dis- lant, cannot be inferred from the provisions cussion and vote. of the Rules of Procedure quoted by it. I - 10770

25. The appellant is now apparently trying to go one step further in alleging that, 23. The Rules of Procedure do not lay because the Rules of Procedure are incom- down as a whole any general rule as to how plete due to the absence of a general rule the Court of First Instance is to proceed covering the resignation of judges during where judges resign during the course of the course of proceedings, the Rules of proceedings. The method of continuing the Procedure are open to abuse — at least in proceedings with the remaining number of cases in which resignation is foreseeable judges, as chosen in this case, must there- (for example, as a result of a term of office fore basically be considered compatible coming to an end by rotation). This would with the Rules of Procedure provided that require an additional interpretation to be it does not contravene the specific rules put on the Rules of Procedure, according to applicable where judges are prevented from which the composition of members of the attending during the proceedings. Chamber following the oral proceedings would have to remain unchanged for the entire period of the deliberations until votes are cast on the judgment.

24. In the case of judgments decided by a Chamber, these specific rules are contained in Article 32(1) and (3) and Article 33(2) of the Rules of Procedure. They provide that an uneven number of judges must take part 26. There is no need at this juncture to consider in more detail the question of 9 — Cited in footnote 8. whether 'entitlement to a lawful judge', in

27. The purpose of the Rules of Procedure is to uphold a proper system of legal 29. In the interests of proper legal pro- protection. In any event, the purely hypo- tection, the length of judicial deliberations thetical 11 possibility of influencing the which precede a judgment cannot be cut composition of the Chamber during the short simply because the retirement of one final deliberations and the vote on the or more judges by rotation is imminent. As judgment by arranging the timing by refer- far as excluding those judges from the ence to the end of the rotating terms of deliberations and voting is concerned, suf- office of its individual members does not, in fice to say that the participation of judges itself, support the interpretation of the in deliberations and voting on judgments Rules of Procedure to which the appellant forms the crux of their activities. To aspires. exclude judges whose terms of office are coming to an end by rotation would be tantamount to requiring their terms of office to be brought to a premature close.

28. The inappropriate nature of the appel- lant's claims in relation to the Rules of Procedure is evident from their con- sequences. In order to ensure, where the 30. It must therefore be established that a terms of office of members of the Chamber principle whereby 'whosoever is not able to come to a foreseeable end by rotation, that participate in deciding the judgment cannot the only judges who take part in the participate in the deliberations either' does deliberations are those who can also take not find support within the Rules of part in the voting on the judgment, there Procedure given the general concern for are really only two possibilities: either (1) sound legal protection afforded by the the deliberations and voting on the judg- Rules of Procedure. ment — as the appellant apparently sug- gests — have to take place before the

33. The appellant is alleging infringement 36. Furthermore, the appellant argues, the of Article 24 of the ECSC Statute of the critical point XXV in the excerpt from the Court of Justice in conjunction with minutes (deliberations on the Decision) Article 65 of the Rules of Procedure does not contain the proposal from one or because the Court of First Instance did more of the Members of the Commission not allow its application, quoted in para- which is required under the first sentence of graph 109 of the judgment under appeal, Article 6 of the Commission's Rules of for evidence to be produced for inspection Procedure, nor does it mention the outcome in the form of the original minutes of the of the vote. Commission. It claims that it would have been possible to prove from the originals that the Commission did not have the necessary quorum when the Decision was adopted. 37. All in all, production of the complete original minutes was necessary to enable the appellant to check whether the minutes provided evidence of compliance with the conditions governing the validity of the 34. To prove the presence of the Commis- Decision at issue. sion Members, the Court of First Instance erred in confining itself to an interpretation of the excerpt from the minutes that had been produced, although that excerpt was contradictory in content. The appellant 38. The Commission submits, first, that claims that page 40 of the minutes had this ground of appeal is inadmissible as the established the presence of two Cabinet Court of First Instance alone has jurisdic-

43. In my opinion, it would appear very doubtful whether a ground of appeal termed 'failure to consider evidence' should Appraisal be deemed at all admissible in principle.

41. The complaint of an error in law in 44. The situation, for the most part, is that failing to consider evidence would appear, a ground of appeal termed 'failure to at first sight, to be a complaint as to breach consider evidence' simply means that one of procedure by the Court of First Instance party is complaining that the Court of First I - 10774

SALZGITTER v COMMISSION

46. The present case is one such example: the appellant is evidently questioning the assumption made by the Court of First 48. It would appear that the Court has not Instance that the copies of the excerpts yet had occasion to pronounce judgment in from the minutes answered the question of principle on the issue of admissibility in whether or not the necessary quorum was relation to similar grounds of appeal. 16 present at the time that the Decision was However, it has examined the merits of adopted by the Commission. In doing so, comparable arguments. 17 In case the Court should not follow the reasoning for inad- missibility suggested here, I should now 12 — If 'failure to consider evidence' were ro be recognised in like to deal briefly with the question of the such cases as an admissible ground of appeal — assuming merits of the second ground of appeal. that specific evidence was tendered in the proceedings before the Court of First Instance — practically any appraisal of fact by the Court of First Instance could be amenable to appeal if it were not heeded. 13 — It would be conceivable, although not relevant here, if the 14 — See below, paragraph 64. complaint of 'failure to consider evidence' were to address 15 — See, on the other hand, the argument put forward by the a breach of substantive law in which the allegation is made appellant m Case C-196/99 P Aristrain v Commission that, by not taking certain evidence, the Court of First 12003) ECR I-11005, and in this respect paragraph 23 of Instance revealed that it had overlooked or failed to the Opinion that I ant delivering today in the afore- properly examine an issue of law. This would be the case, mentioned case. for instance, if it were alleged that the Court of First Instance had not allowed evidence of facts that might have 16 — Admissibility of the ground of appeal challenging a proven a legal defence. The allegation of failure ro apply procedural defect: Opinion of Advocate General Leger substantive law or of an error of law in its application does delivered on 3 February 1998 in Case C-185/95 P Unus- per se constitute an admissible ground of appea!, so that no tahlgewebe v Commission |1998) ECR I-8417. special ground of appeal, namely 'failure to consider 17— Apparently their admissibility was either not in issue or evidence', would normally be required in such cases. else the arguments were implicitly declared admissible.

B — The grounds of appeal alleging a legally defective assessment of the formal validity of the Decision

51. With regard to the question of the taking of evidence in proceedings before the Court of First Instance, therefore, the Court must bear the following division of responsibilities in mind: a party who wants 1. Infringement of procedural rights by the to have evidence produced in the proceed­ Commission (fourth ground of appeal) ings must substantiate which facts, in its opinion, have to be proven and that their existence is, at the very least, probable. It is for the Court of First Instance to examine Submissions of the parties the relevance of taking evidence.

18 — Judgment of 17 December 1998 (Opinion cited in footnote 16), at paragraph 68. 54. The appellant takes issue with para­ 19—Judgment in Case C-274/99 P Connolly v Commission [2001] ECR I-1611, at paragraph 113. graph 88 of the judgment under appeal and

I - 10776

SALZGITTER v COMMISSION

I - 10777

OPINION OF MRS STIX-HACKL — CASE C-182/99 P

60. Nor was it established from the copy appellant Thyssen Stahl AG in Case minutes produced whether the necessary C-l94/99 P, I refer, in relation to the quorum was present when the Decision was grounds on which the third ground of adopted by the College of Commissioners. appeal should be dismissed as inadmissible, to paragraphs 52 and 63 et seq. of the Opinion that I am delivering today in the aforementioned case. Those grounds apply mutatis mutandis. 61. The Commission considers this ground of appeal to be inadmissible since the appellant is challenging the determination of facts and assessment of evidence which come within the purview of the Court of 65. The third ground of appeal, challenging First Instance alone. the failure to recognise that the necessary quorum was not present and that the Decision was not properly adopted by the Commission, must therefore be dismissed on the ground that it is inadmissible. 62. In the alternative, it is argued against the appellant that Article 16(1) of the 1993 Rules of Procedure does not require the Decision to be established from the min- utes; it must be 'annexed' to them.

C — The ground of appeal alleging that the assessment of the substantive legality of the Decision was defective in law 63. The allegation that the copy minutes do not establish whether the necessary quorum was achieved is similarly inadmissible. This was determined by the Court of First Instance when dealing with such alle- gations in paragraphs 111 to 124 of the 1. The separate nature of the infringement judgment under appeal following detailed of competition law as a result of partici- appraisal of the evidence required by it. pation in the information exchange system (seventh ground of appeal)

70. By not doing so, the Court of First- Instance was in breach of the principle of 67. The appellant also takes the view that, ne bis in idem. Infringement of this prin- in considering the information exchange ciple could not be alleged until the appeal system to be a separate act in restraint of stage because it was only in response to the competition within the meaning of written question put by the Court of First Article 65 of the ECSC Treaty, that provi- Instance that the Commission withdrew its sion has also been misconstrued. The Court argument that participation in the infor- of First Instance erred in law in finding that mation exchange system constituted a sep- it was sufficient for the information arate breach of Article 65 of the ECSC exchange system to have been liable to Treaty. affect the conduct of the undertakings concerned when, under Article 65 of the ECSC Treaty, the information exchange system should have tended to do so.

71. The Commission considers this ground of appeal to be inadmissible in so far as it is based on the statement made by the Com- mission in the proceedings before the Court of First Instance dealt with in paragraph 68. The appellant argues, with regard to 373 of the judgment under appeal (regard- the Commission's contention that the issue ing the separate nature of the restraint of of whether the information exchange sys- competition by participating in the infor- tem had independent significance was a mation exchange system). The Court of challenge to appraisals of fact not amen- First Instance had to review the Commis- able to review on appeal, that indepen- sion's Decision and it was not bound by the dence can be decided on the basis of legal statements made by the Commission in the criteria without any review of the facts. judicial proceedings.

76. In the first part of the seventh ground of appeal the appellant alleges an excess of jurisdiction on the part of the Court of First Instance by claiming that, in finding that participation in the information exchange 74. The ground of appeal is also unfounded system was a separate infringement of to the extent that it relates to the effects of Article 65(1) of the ECSC Treaty, it went the information exchange system. In para- beyond the substance of the Decision graph 691 et seq. the Court of First acknowledged by the Commission itself in Instance is discussing, not the information the proceedings before the Court of First exchange system, but the general, without- Instance. obligation exchange of opinions that D G III considered permissible in relation to prices anticipated by the undertakings. However, the undertakings' regular exchange of up- to-date, individualised figures and break- downs of orders and deliveries, which was 77. Hence, the appellant is not taking issue concealed from the Commission, went far with the error of law in misconstruing beyond the mere exchange of opinions on Article 65(1) of the ECSC Treaty, but is price forecasts. The fact that the commer- alleging an infringement of Article 33 of the cial effects of the price-fixing agreements ECSC Treaty.

I - 10780

SALZGITTER v COMMISSION

83. Consequently, the assumption by the 81. Contrary to the view expressed by the Court of First Instance that participation in Commission, I am of the opinion that this the information exchange system consti- ground of appeal is admissible in so far as it tuted a separate infringement of compe- addresses the fundamental question of tition is not open to any objection in law.

I - 10781

OPINION OF MRS STIX-HACKL — CASE C-182/99 P

The allegation of infringement of the ne bis delivering today in the aforementioned in idem principle based on the contrary case. Those grounds apply mutatis mutan- viewpoint therefore requires no further dis. examination.

87. The third part of the seventh ground of 84. The second part of the seventh ground appeal, alleging misconstruction of of appeal, criticising the failure to take Article 65(5) of the ECSC Treaty when cognisance of the fact that the infringement assessing the amount of the fine, must of competition was not a separate issue and therefore be dismissed as inadmissible. alleging infringement of the ne bis in idem principle, must therefore also be dismissed as unfounded.

88. The seventh ground of appeal must therefore be dismissed in part as inadmis- sible and otherwise as unfounded. 85. In the third part of the seventh ground of appeal the appellant submits that the Court of First Instance was wrong not to reduce the part of the fine for participation in the information exchange system even though the grounds for reducing the fine for price-fixing also applied to the infor- mation exchange system. However, it is 2. The adverse effect which the infor- here alleging misconstruction, not of mation exchange system had on 'normal Article 65(1) of the ECSC Treaty, but of competition' within the meaning of Article 65{5) of the ECSC Treaty (assess- Article 65 of the ECSC Treaty [sixth ment of the amount of the fine). ground of appeal)

general connection between that paragraph should be taken into account when inter- and other provisions in the ECSC Treaty, preting the concept of normal compe- such as Article 60 and Articles 46 to 48 of tition — not just when considering the the ECSC Treaty, for example. 'Normal effects of an infringement. competition' within the meaning of Article 65(1) of the ECSC Treaty should not be established without regard for the view that was shared by the Commission and the undertakings concerned at the critical time. From the fact that, even in the opinion of DG III, a certain amount of exchange of information was necessary between undertakings in the steel industry to enable the Commission to fulfil its 91. The Commission considers this alle- obligations under the ECSC Treaty, the gation unfounded. It is not for the Com- Court of First Instance should have con- mission to define the term 'normal compe- cluded that the 'normal competition' given tition'. The conduct of DG III might have protection under Article 65(1) of the ECSC led to a 'degree of ambiguity' with regard Treaty could not be the same competition to the scope of that concept but that as that protected under Article 85(1) of the conduct could not have altered the concept EC Treaty. itself, which could only be construed from the Treaty itself. This is precisely what the Court of First Instance did in paragraphs 268 to 289 of the judgment under appeal having regard, on the one hand, to Article 60 of the ECSC Treaty and, on the other, to Articles 46 to 48 of the ECSC Treaty.

94. The sixth ground of appeal, challenging confirmation of the assumption that the information exchange system had an Appraisal adverse effect on 'normal competition' within the meaning of Article 65 of the ECSC Treaty, must therefore be dismissed as unfounded.

97. Since the arguments put forward essen- tially correspond to those presented by the appellant Thyssen Stahl AG in Case C-194/99 P, I refer, in relation to the grounds on which the fifth ground of D — The ground of appeal relating to appeal should be dismissed as unfounded, inadequate grounds for the fine (fifth to paragraph 217 et seq. of the Opinion ground of appeal) that I am delivering today in the afore- mentioned case. Those grounds apply mutatis mutandis.

Submissions of the parties

98. The fifth ground of appeal, challenging 95. The appellant submits that the Court of the failure to take cognisance of the inad- First Instance considered the Commission's equate grounds for the fine, must therefore statement of reasons for the amount of the be dismissed as unfounded. I - 10784

SALZGITTER v COMMISSION

IV — Conclusion