C-194/99

A — The grounds of appeal alleging a legally defective assessment of the formal legality of the Decision I - 10832

1. Infringement of procedural rights by the Commission (first ground of appeal) 1-10832

(a) Infringement of the principle of ex proprio motu investigation by the Commission and the possibility of rectification 1-10832

(b) Infringement of the rights of the defence and the possibility of rectification 1-10836

2. The Commission's adoption of the Decision (second ground of appeal) . . 1-10839

(a) The quorum when the Decision was adopted by the Commission 1-10840

THYSSEN STAHL v COMMISSION

2. The adverse effect which the information exchange system and price-fixing had on 'normal competition' within the meaning of Article 65 of the ECSC Treaty I - 10855 (a) The question whether and to what extent lawful disruptions of the ideal form of competition fall within the concept of normal competition . . . I- 10857 (b)Contradictory use of the term 'concerted practices' as meaning a restriction on normal competition I -10860 (c) Contradictory use of the concept of 'normal competition' in Article 65(1) and (5) of the ECSC Treaty 1-10863 D — The grounds of appeal relating to the fine I - 10865 1. Inadequate consideration of the fault principle (fifth ground of appeal) . . I- 10865 2. Calculation of the portion of the fine relating to participation in the information exchange system (sixth ground of appeal) I - 10867 3. The absence of grounds in the Decision explaining the level of the fine (seventh ground of appeal) I - 10873 E —• The ground of appeal alleging that the duration of the proceedings amounted to a breach of the ECHR (eighth ground of appeal) I - 10876 IV — Conclusion I - 10884

I — Introduction particular the rules adopted to deal with the manifest crisis and C o m m i s s i o n Decision No 2448/88/ECSC of 19 July 1988 introducing a surveillance system for certain products of undertakings in the steel industry 3 ('Decision No 2448/88'). The 1. The present case is an appeal brought surveillance system established pursuant to against the judgment delivered by the Court Decision No 2448/88 expired on 30 June of First Instance on 11 March 1999 in Case 1990 and was replaced by an individual T-141/94 ('the judgment under appeal'). 2 and voluntary information scheme. 4

'Commission Decision 94/215/ECSC... I I — Forms of order sought and grounds relating to a proceeding pursuant to of appeal Article 65 of the ECSC Treaty concerning agreements and concerted practices engaged in by European producers of 6. In its appeal, the appellant claims that beams' 5(hereinafter 'the Decision'). The the Court should: parties to which the Decision was addressed had, in the Commission's view, breached the competition law of the Euro- pean Coal and Steel Community by estab- lishing, in an anti-competitive manner, (1) set aside the judgment delivered on systems for the exchange of information 11 March 1999 by the Court of First and engaging in price-fixing and market- Instance in Case T-141/94 in so far as sharing. The Commission imposed fines on that judgment fixes the fine imposed on 14 of the undertakings. In the case of the appellant at EUR 4 400 000 (para- Thyssen Stahl (hereinafter 'the appellant') graph (2) of the operative part), dis- the Commission imposed a fine of misses the appellant's action (para- ECU 6 500 000. graph (3) of the operative part) and orders the appellant to bear its own costs and to pay half of the Commis- sion's costs (paragraph (4) of the oper- ative part);

(2) annul Articles 1, 3 and 4 of Commis- sion Decision C(94)321 final of 4. Several of the undertakings concerned, 16 February 1994 in so far as those including the appellant, together with the articles have not already been annulled trade association, challenged the Decision by the judgment of the Court of First before the Court of First Instance. The Instance of 11 March 1999 in Case Court of First Instance upheld in part the T-141/94; appellant's action and reduced the fine to EUR 4 400 000.

First ground of appeal:

Fourth ground of appeal:

'The judgment breaches in several respects the principles of proper procedure. In particular, there has been a failure to take proper account of the scope of the appel- 'The judgment breaches in several respects lant's procedural rights, the principle of Article 65(1) of the ECSC Treaty: audi alteram partem, procedural equity, and of the duty also to establish facts favourable to undertakings arising from the principle of ex proprio motu investigation.

It errs in law in finding that the monitoring of orders and deliveries constituted a sep- arate breach of Article 65(1) of the Further, the Court of First Instance erred in ECSC Treaty, without being able to explain law in assuming that such procedural why the exchange of information was defects in the administrative procedure anti-competitive in its effect. Further, the had been remedied during the judicial judgment errs in law in assuming, on the proceedings.' basis of a misconstruction of the term "normal competition", that the monitoring of orders and deliveries had an adverse effect on normal competition. Second ground of appeal:

'The judgment misconstrues the formal The judgment errs in law in finding that the provisions of the Commission's 1993 Rules appellant's conduct, which was the subject of Procedure governing authentication of of complaint in relation to the fixing of the Commission Decision and therefore prices, amounted to a breach of unjustifiably proceeds on the assumption Article 65(1) of the ECSC Treaty. In this that there was a validly adopted decision.' it also bases itself on a misconstruction of

THYSSEN STAHL v COMMISSION

Summarised according to the fundamental participation in the information issues of law raised, the appellant is in exchange system 6 did not constitute a essence arguing that, in the judgment under separate infringement of competition appeal, the Court of First Instance breached and Community law in that it:

the system for the exchange of infor- mation and the fixing of prices could — erred in law in accepting the formal not have had any detrimental effect on legality of the Decision, even though 'normal competition';

procedural rights had been infringed — erred in law in its assessment of the fine during the course of the procedure and the grounds given for it (fifth, sixth before the Commission (first ground and seventh grounds of appeal); of appeal) and

— contrary to Article 6 of the European Convention for the Protection of the Decision had not been adopted in Human Rights and Fundamental Free- the proper manner (second ground of doms ('the ECHR'), failed to vindicate appeal); the appellant's legal rights within a reasonable period (eighth ground of appeal).

— exceeded its jurisdiction to carry ont a review under the first paragraph of 9. The examination which follows will Article 33 of the ECSC Treaty (third base itself around this summary. The ground of appeal); grounds of appeal put forward by the appellant and the subdivisions and argu-

12. The first ground of appeal consists in principle of two parts. In the first, the appellant challenges the alleged failure by the Court of First Instance to appreciate the 10. The grounds of appeal in the present true extent of the Commission's duty to proceedings substantively correspond in conduct an ex proprio motu investigation. large measure to the grounds of appeal In the second, the appellant criticises the and their subdivisions submitted in the alleged failure to take account of the parallel proceedings. In the corresponding Commission's infringement of the rights Opinions 7these will therefore be broken of the defence. In both parts the appellant down into similar summary form and takes issue with the alleged error in law reference will be made to the present consisting in the acceptance of the possi- Opinion so as to avoid repetition. bility that these failures by the Commission could be remedied in the proceedings before the Court of First Instance.

I I I— Examination of the case (a) Infringement of the principle of ex proprio motu investigation by the Com- mission and the possibility of rectification

Submissions of the parties A — The grounds of appeal alleging a legally defective assessment of the formal legality of the Decision

13. The appellant takes the view that, in paragraphs 92 to 116 of the judgment under appeal, the Court of First Instance 11. The appellant challenges this infringe- failed to take proper account of the scope ment of the Treaty in its first and second of the Commission's duty to carry out an ex grounds of appeal. proprio motu investigation. As the written information received from DGIV could not have provided sufficient clarification of the 7 — Cases C-176/99 P Arbed v Commission, C-179/99 P Eurofer v Commission, C-182/99 P Salzgitter v Commission, extent to which the unlawful conduct of the C-195/99 P Krupp Hoesch v Commission, C-196/99 P undertakings had been known to the D G III Aristrain v Commission, C-198/99 P Ensidesa v Commis- sion and C-199/99 P Corns v Commission. officials or had been objectively caused by I - 10832

them, the Commission ought to have ques- Court of First Instance found them to be, tioned the officials who were actually there was no need for further checks. involved. The Court of First Instance had itself regarded this questioning as being necessary and carried it out during the proceedings. That notwithstanding, it denied that the Commission was under 16. The appellant takes issue with the any such duty. The evidence collected by Commission's allegation of inadmissibility. DG IV regarding the role of DG III was In the appellant's view, the distinction, overall not appropriate to clarify fully and which the Commission advocates, between comprehensively the facts in this regard, the criterion of the duty to investigate and other evidence had been available (question of law) and the application of during the administrative procedure. that duty (determination of fact) is incor- rect. The appellant's submission relates to the interpretation of a rule of Community law (principle of ex proprio motu investi- gation) and the subsumption of the con- 14. The Commission submits that this part firmed facts under that principle. Both of the first ground of appeal does not elements relate to the evaluation of ques- concern any infringement of a legal provi- tions of law by the Court of First Instance sion by the Court of First Instance but and are thus reviewable in appeal proceed- rather challenges the facts established in ings. paragraphs 108 and 109 and the assess- ment of those facts by the Court of First Instance, for which reason this ground of appeal is inadmissible to that extent. The appellant confirms this inadmissibility 17. The appellant further avers that, as when it claims that the 'evidence' adduced stated in paragraph 115 of the judgment by the Commission was insufficient. The under appeal, the Court of First Instance Court of First Instance laid down the scope proceeded on the assumption that this of the duty of ex proprio motu investi- infringement of the principle of ex proprio gation in paragraphs 96 and 97 of the motu investigation had been corrected judgment under appeal and applied a during the judicial proceedings. That view stringent criterion. However, those para- stands at variance with the established graphs were not as such the object of case-law. 8 criticism.

21. The appellant is challenging the alleged 19. The appellant disputes this assertion. A failure by the Court of First Instance to declaration that the Decision is void does take proper account of the scope of the not depend on whether the duties of Commission's duty to conduct an ex pro- investigation as a whole were infringed prio motu investigation. This submission but rather whether the procedural mistakes provides an opportunity to address the committed by the Commission could have question whether and to what extent 'com- had a bearing on the Decision. The decision pliance by the Commission with the prin- regarding the fine was a discretionary ciple of ex proprio motu investigation' is a decision taken after consideration of all question of law amenable to examination the circumstances of the individual case. in appeal proceedings. The possible bearing on the Decision of a procedural error limited to only one aspect of the facts can therefore not be precisely demarcated, with the result that annulment of the Decision cannot in principle be ruled out even in the case of procedural errors 22. In order to reply to this question it is confined to a portion of the facts. necessary to examine more closely what is to be understood by the 'scope' of the duty of ex proprio motu investigation. In the first instance, the scope may relate to the evidentiary issues, that is to say, the ques- tion whether investigations were conducted into all constituent facts and exculpatory 20. With regard to the complaint alleging grounds touching on competition law of that the Commission's procedural errors relevance to the case in point. Second, the were impermissibly corrected in the pro- scope may relate to the evidence, that is to ceedings before the Court of First Instance, say, to the question of which and how the Commission submits that these possi- much evidence the Commission sought in bilities of correction were expressly men- order to establish the constituent facts or tioned in paragraph 115 of the judgment exonerating grounds.

25. The Court of First Instance also made findings on the evidence in examining, in paragraphs 108 and 109 of the judgment under appeal, the relevant exchange of correspondence between the directors of DG III and DG IV and in assessing the 28. There is no need to examine further the background to that correspondence and the appellant's allegation that the Court of evaluation of its content as appropriate First Instance wrongly proceeded on the basis that the Commission's procedural error could be remedied in the proceedings 9 — An exception might, at most, appear appropriate in those before it, the reason being that — as cases in which the conduct of ex proprio molu investi- gations gives rise, in the light of the choice or the number of items or evidence used by the Commission, to doubts regarding the seriousness of the particular investigation. 11 — For the established case-law see, for example, the order in 10 — See, for example, paragraph 108 of the judgment under Case C - 4 7 9 / 0 0 P(R) Commission v Cerol |2001| appeal. F.CR 1-3121.

I - 10835

OPINION OF MRS STIX-HACKL — CASE C-194/99 P

already stated — no procedural error on 31. The appellant sees a further infringe- the Commission's part has been demon- ment of its rights of defence in the adminis- strated. trative procedure in the non-compliance with the audi alteram partem principle by reason of the refusal to allow it access to the results of the investigation into the role of D G III, which was not conducted until after the first hearing. In this connection it takes issue with, in particular, paragraphs 113 and 114 of the judgment under appeal, (b) Infringement of the rights of the defence invoking the Court's judgment in Tech- and the possibility of rectification nische Universität München. 12

I-10836

THYSSEN STAHL v COMMISSION

33. The results of the internal Commission on the investigation conducted by the investigation, the appellant continues, Commission subsequent to the hearing and, could also not be treated as internal docu- on the other, documents relating to the ments exempted from the duty of pub- contacts between DG III and the steel lication. This exemption applies only to industry. By its order of 10 December 1997 documents which do not constitute evi- the Court of First Instance placed only the dence because the Commission cannot rely latter documents on the case-file as they on them when assessing facts (for example, alone related directly to an actual circum- internal drafts, statements of position or stance of the case. The results of the comments) or because they serve to protect i n t e r n a l i n v e s t i g a t i o n c o n s i s t e d in the confidentiality of discussions which expressions of position and comments by allows services to express, in complete DG IV, to which access did not have to be freedom, their views on pending cases. granted. None of this concerns the documents here in issue, as these documents related to the role of the Commission's services in regard to the practices of which the undertakings concerned were accused.

41. It is therefore necessary to examine whether, in the judgment under appeal, the Court of First Instance took account of this 38. Instead, the appellant's submission examination criterion and applied it cor- relates to the right to view documents and rectly. 16 the right to a fresh hearing, this time concerning the content of documents which were drawn up only after the first hearing. Further in issue here is the question whether an infringement of such rights of the defence can be remedied in the proceed- ings before the Court of First Instance. 42. The Court of First Instance ruled in paragraph 114 of the judgment under appeal that the documents relating to the investigations conducted into DG III after the first hearing before the Commission 'clearly did not contain any exonerating 39. It must first be held that, if there was material'. In so doing, the Court of First no right to view documents, there can be no Instance unequivocally expressed its view presumption of a right to a hearing in that knowledge of those documents was regard to their content. In what follows, not likely to influence the course of the therefore, the emphasis will initially be on subsequent procedure and thus also the the right to view documents. content of the Decision.

44. The Court of First Instance was thus correct in ruling that there was no right of more extensive access to the Commission's 2. The Commission's adoption of the documents. Decision (second ground of appeal)

45. If the Court of First Instance thus properly held that there was no right of more extensive document access, it must, 48. The second ground of appeal also on the basis of the statements made at the consists of two parts. In the first, the outset, be concluded at the same time that appellant challenges the assumption made the Court of First Instance could also not by the Court of First Instance that, at the have committed an error of judgment in time of adoption by the Commission, the finding that the rights of the defence had necessary quorum for voting purposes was not been infringed through the refusal of a present. In the second part, the appellant further hearing (into the content of those takes issue with the alleged failure by the documents). Court of First Instance to hold that there was an infringement of the formal provi- sions governing authentication, and the alleged substantive discrepancy between the notified and adopted versions of the 46. The second part of the first ground of Decision. appeal, challenging the failure to find that there was an infringement of the rights of 17 — In the interim, the Court has stated, in connection with the the defence (access to documents and right right of access to documents, that 'the infringement to be heard), must accordingly be dismissed committed is not remedied by the mere fact that access was made possible... during the judicial proceedings' (Case as being unfounded. C-51/92 P, cited in footnote 15, at paragraph 78).

53. The Commission has raised the ques- tion whether this part of the second ground of appeal is inadmissible on the ground that 5 1 . T h e g r o u n d of a p p e a l is a l s o it may be challenging a non-appealable unfounded, the Commission continues, as assessment of a factual matter by the Court the names of the persons who took part in of First Instance. the discussions on the Decision were evi- dent from the attendance list on page 2 of 19 — Paragraph 140. 20 — Paragraph 141. 18 — OJ 1993 L 230, p. 15. 21 — Paragraph 142 et seq.

I - 10840

THYSSEN STAHL v COMMISSION

54. The Court has already dealt on a third stage and is reviewable in appeal number of occasions in its case-law with proceedings. the question whether the appraisal of a document is a question of fact or of law. 22 In the appraisal of a document by the Court of First Instance the following three stages may be distinguished:

56. Determination of the textual content and of the objective content of what the 58. In its submission that the necessary document states constitutes merely a pre- quorum was not achieved, the appellant is liminary stage to that of the legal assess- thus taking issue with the second stage in ment. There is a determination and evalu- the appraisal of a document, that is to say, ation of facts which — subject to examin- the determination by the Court of First ation of potential distortion — cannot be Instance as to what the text of the minutes reviewed in appeal proceedings. The actual actually means. In this it is directing its legal assessment takes place only at the criticism at that Court's assessment of the facts and not at any legal appraisal. 22 — The judgment in Case C-39/93 P SFEI and Others v Commission [1994] ECR I-2681 concerned the question whether a Commission letter closing the file on a complaint was to be regarded as being a 'preparatory statement of position' and thus as a challengeable lega! measure; the judgment in Case C-283/90 P Vidrányi v Commission [1991] ECU I-4339 centred on the issue of whether a document was of a 'medical nature', on which depended the right of access under specified legal bases; that in Case C-346/90 P F. v Commission [1992] 59. The first part of the second ground of ECR I - 2 6 9 1 turned on the question whether a letter appeal, challenging the alleged failure by contained a clarification or a 'complaint' triggering a set period within which action had to be taken. the Court of First Instance to take account

61. In its judgment, the appellant con- tinues, the Court of First Instance did not hold that the version notified to it was identical to the versions C(94)321/2 and 64. The purely substantive correspondence C(94)321/3, nor did it hold that it had been between the version of the Decision noti- annexed to the minutes in the due and fied to the appellant and that before the I - 10842

THYSSEN STAHL v COMMISSION

Commission at the time of adoption is a alleged failure to take account of the lack of determination of fact and is not a question proper authentication. of law.

I - 10843

OPINION O F MRS STIX-HACKL — CASE C-194/99 P

can the fact that the unsigned decision and cation, and what was the content of that the signed minutes belong together be original? externally verifiable, and the version of the text of this — annexed — decision is distinguishable from a non-authenticated version of the text. 23 72. It will in this connection be necessary to distinguish between the signatures on the front page of the minutes and the require- ment that the decision be 'annexed' to the 70. These requirements imposed by the minutes. Rules of Procedure are thus not an end in themselves but serve rather precisely the purpose of providing evidence in judicial proceedings, in the event of doubt, as to whether any, and if so which, text version 73. The Court of First Instance based itself, was adopted by the Commission as a in paragraph 165, on the certification of collegiate body. 24 More precisely, the text the copy in the form of the stamp and version of a decision adopted by the Com- signature of the Secretary-General of the mission becomes, for legal purposes, an Commission in office at the time of the original decision only once it has been judicial proceedings, and stated clearly that authenticated in the due and proper form. it was construing the stamp 'certified to be As the notified version and the Original' a true copy' as meaning that the Secretary- must be compared, it is in principle the General was thereby confirming, in view of production of the authenticated decision the signatures, that the copy of the minutes alone that can make possible a comparison corresponded to the original thereof. This free from any doubt. substantively involves an appraisal of evi- dence that is not amenable to review in appeal proceedings.

text of the Decision (both as copies) 'in the the Commission's Secretariat-General). The same container', and, second, refers to the Court of First Instance thereby obviously indications furnished by the Commission's construed the statement made by the Com- agents to the effect that they had received mission's agents as meaning that they had those two texts 'as such' from the Com- received the two copies attached to each mission's Secretariat-General. 25 other 'as such' as the texts had also been 'annexed' in the original. The Court of First Instance obviously inferred from this, and from the fact that the copies were directly forwarded to those agents by the Secre- tariat-General, that is to say, by the only possible holder of an original, that an original of the two texts, having the same content and in 'annexed' form, was also 76. While this should not be assumed in the held by the Secretariat-General. present case, it is none the less still quite possible to copy separately the signed minutes and a text claimed to be that which was formally adopted, and to for- ward those copies 'in the same container'. That, however, is precisely — as indicated above — what compliance with the authen- tication requirement that the decision be 'annexed' seeks to prevent. The purely 78. The Court of First Instance thus bases physical fact of 'being annexed', and con- its conclusions on this point substantially comitantly the existence and content of the on the statements made by the Commis- Commission decision, can in principle sion's agents, to which it attaches credence, really be established beyond doubt only and interprets those statements in a par- through visual inspection of the two orig- ticular way. This is an appraisal of evidence inal texts (minutes and text of the decision) which in appeal proceedings, subject to any placed at the same time before the Court of allegation that the Court of First Instance First Instance. distorted the evidence, is not open to review and to that extent renders a ground of appeal inadmissible.

80. In my view, the Court of First Instance is here misconstruing the substance of the 82. As for the appellant's submission that presumption of validity of Community the Court of First Instance failed to take instruments as recognised in the case-law. account of the fact that the signatures of This holds good, in the first instance, where the Secretary-General and the President on it was already possible to prove that a legal the minutes were undated, all that need be measure of the Communities was defec- stated is that this submission corresponds tive. 2 7 In the present case, however, what is in full to its submission made as applicant primarily at issue is the assessment as to in the proceedings before the Court of First whether the legal instrument is at all Instance. No new arguments have been (formally) defective, or, more precisely, adduced in the present proceedings as to the proof of the facts necessary for that why the findings by the Court of First purpose. In paragraph 164, the Court of Instance in paragraph 167 of the judgment First Instance evidently erred in its reason- under appeal might have been defective in ing in treating the presumption of validity law. as constituting evidence of validity (in the sense of 'being free of defects'). In this it confuses the subject-matter of the adduc- tion of evidence with that actual adduction itself. 83. A ground of appeal based solely on a repeated submission must, according to the settled case-law of the Court, be dismissed as inadmissible.29

Submissions of the parties

88. The Commission submits in the alter­ native t h a t the g r o u n d of appeal is unfounded. The action was directed against 85. The appellant's submission is directed the Decision. It could not be directed against paragraph 392 of the judgment against the explanations given by the under appeal, in which the Court of First Commission's agents in the judicial pro­ Instance held that the Commission had, in ceedings, as the Court of First Instance was the Decision, regarded participation in the not bound by those explanations. In the information exchange system as constitut­ Decision, however, participation in the ing a s e p a r a t e i n f r i n g e m e n t , e v e n information exchange system is mentioned though — as emerges from paragraph in Article 1 and recital 314 in the listing of 384 of the judgment under appeal — the the individual infringements other than Commission's agents themselves had stated price-fixing and market-sharing. in the proceedings before the Court of First Instance, in response to the latter's ques­ tion, that the Commission had proceeded on the basis that, by serving to facilitate price-fixing and market-sharing agree­ ments, participation in the information Appraisal exchange system had merely formed part of wider infringements.

89. It is first necessary to state that, in its 86. The Court of First Instance, at least in submissions in the third ground of appeal, the appellant's view, thereby exceeded its the appellant is expressing the fact that it jurisdiction under Article 33 of the ECSC shares the Commission's view of the law Treaty inasmuch as it did not confine itself which is favourable to it, as expressed by to examining the Commission's Decision the Commission in the proceedings before but actually altered it. the Court of First Instance (participation in the information exchange system is not a separate infringement of competition). In contrast, it does not share the Commis­ sion's view of the law which on this point is unfavourable to it and which is expressed 87. In the opinion of the Commission, this in the Decision (separate infringement of ground of appeal is inadmissible because competition). For that reason it also does

92. The rules contained in those provisions authorise the Court of First Instance only to 95. In the appellant's view, such alterations review a Commission decision and thus at were clearly made through the reply to the the same time prohibit, subject to the written question put by the Court of First u n l i m i t e d p o w e r of r e v i e w u n d e r Instance and through the related statements Article 36 of the ECSC Treaty, constructive made by the Commission's agents during interference to the detriment of a complain- the oral procedure. ant.

93. The appellant is now claiming that the Court of First Instance interfered construc- 96. The Commission's agents could not, tively with the substantive content of the however — even had this been their true Decision in a manner adversely affecting it. intention — have altered the substantive It accordingly claims a breach of the content of the Decision in a legally effective manner precisely because in that case the formal Commission instrument necessary 30 — See paragraph 99 et seq. below. for that purpose would have been lacking.

I - 10848

THYSSEN STAHL v COMMISSION

97. As the content of the Decision was within the meaning of Article 65(1) of the therefore not altered during the proceed- ECSC Treaty. ings before the Court of First Instance, the latter proceeded in the judgment under appeal on the basis of the content which the Decision had when adopted by the Com- mission. The Court of First Instance thus confined itself to its review jurisdiction under Article 33, first paragraph, of the ECSC Treaty and did not alter the content of that Decision in a manner adversely 1. Whether participation in the infor- affecting the present appellant. mation exchange system constituted a sepa- rate infringement of competition

102. The appellant goes on to criticise the market held only two thirds of the market Court of First Instance for providing share, a fact indicating strong competition contradictory reasons as to why the infor- among the many competitors. Given such a mation exchange system in itself was in market structure, there can in any event be restraint of competition. In paragraph 403 no assumption of a simple oligopolistic the Court proceeded on the basis of an structure, and a fortiori no assumption of a anti-competitive effect resulting from the highly concentrated market. information exchange system, whereas in paragraph 401 et seq. it puts forward at the same time the 'maintenance of traditional flows of trade' resulting from the infor- mation exchange system as an argument pointing to this anti-competitive effect. In an information exchange system which is deemed to constitute in itself a separate breach of Article 65(1) of the ECSC Treaty, the restrictive effect on competition must 104. The Commission submits that these follow from that system itself and, if heads of complaint are inadmissible as the relevant, from the general market structure. appellant has failed precisely to indicate which grounds of the contested judgment it is challenging and has failed to indicate precisely the legal arguments intended to support its application to have those grounds of the judgment set aside. The criticism levelled at paragraph 401 et seq. of the judgment under appeal is unfounded as the Court of First Instance, contrary to 103. In concluding that participation in the what the appellant claims, did give reasons information exchange system was anti- for the anti-competitive nature of the competitive, the Court of First Instance information exchange system which were was wrong to invoke the 'UK Tractor derived from that system itself. Registration Exchange' case-law 31 ('the Tractor judgments') and to assume that the structure of the market in beams was also characterised, as had been the case with the tractor market, by a narrow oligopoly, in order thereby to justify its assessment that participation in the infor- mation exchange system amounted to a breach of competition law. As the Court of First Instance itself held in paragraph 400 105. The appellant's arguments chal- of the judgment under appeal, the 10 lenging the Court's views on the oligopol- largest undertakings within the steel-beams istic structure of the market in beams must also, the Commission argues, be rejected on the ground that they question the appraisal of facts. Further, the appellant had itself, in 31 — Judgments in Cases T-34/92 Fiatagri and New Holland Ford v Commission [1994] ECR II-905 and T-35/92 John its application of 8 April 1994 (paragraph Deere v Commission [1994] ECR II-957 and the respective 80), already described the beams market as appeals in Cases C-8/95 P New Holland Ford v Commis- sion [1998] ECR I-3175 and C-7/95 P [1998] ECR I-3111. an oligopolistic market. I - 10850

109. The question which the appellant here posits is essentially whether the Court of First Instance applied to the information 107. In addition, the appellant picks out exchange system here in issue, in a legally only one factor, whereas the Court of First correct manner, the conditions required Instance provided several elements to dem- under Community law for a finding that onstrate that the information exchange certain information exchange systems are system was anti-competitive in nature. anti-competitive, as derived from the Trac- While the steel-beams market is in fact less tor case-law. 32 oligopolistic than the relevant market in the Tractor judgments, steel beams are more homogenous products than tractors, with the result that competition in the present case based on product characteristics was from the outset limited. 110. I would first like to set out, with the necessary brevity, the essential features of that case-law.

111. It must first of all be stated that the 108. Examination of the effects which an Court has not yet had an opportunity to set agreement has on competition involves the out its views on the separate anti-competi- assessment of complex economic issues, tive nature of information exchange sys- judicial review of which must necessarily tems under the ECSC Treaty (Article 65 of confine itself to verifying whether the the ECSC Treaty). All of the cases to date procedural rules were followed, whether have been examined within the scope of the reasons given are adequate, whether the application of the EC Treaty (Article 85 of facts were properly d e t e r m i n e d , and whether or not there was any obvious misconstruction of the facts or abuse of 2 — Case-·. C-8/95 1> (cited in foninoti' .11) .and C - 7 / 9 5 P(cucci discretionary power. The appellant, how- in footnote 31 ).

112. Information exchange systems will be anti-competitive in se if their anti-competi- tive nature results from the systems them- selves, and thus independently of whether 113. The Court has, however, also held the information obtained through them that information exchange systems are, was used for other 'classic' breaches of under certain circumstances, compatible competition, such as price-fixing agree- with competition. Thus, an information ments and market-sharing. This separate exchange system extending beyond traders anti-competitive nature of information and also accessible to, for example, cus- exchange systems has in principle been tomers is more likely to strengthen compe- recognised by the Court in the Wood tition than weaken it. 40 A market truly Pulp 34 and Tractor judgments. 35 In its characterised by competition and with grounds the Court bases itself on a funda- atomised supply can also have the result mental idea, which is referred to as a that competition is strengthened through 'requirement of independence': 36 '[E]ach the information so obtained. 41 It is only by trader must determine independently the means of the transparency thus achieved policy which he intends to adopt on the that traders are placed in a position to common market and the conditions which adjust their individual conduct to that market. 33 — See paragraph 135 et seq. below. 34 — Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, 37 — Cited in footnote 26 (paragraph 86). C-117/8J and C-125/8J to C-129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR 1-1307. 38 — Cited in footnote 26 (paragraph 87). 35 — Cited in footnotes 26 and 31. 39 — Cited in footnote 26 (paragraph 88). 36 — Judgments delivered on 14 July 1972, for example in Case 40 — Cited in footnote 26 (paragraph 88). 48/69 ICI v Commission [1972] ECR 619 ('Dyestuffs'). 41 — Cited in footnote 26 (paragraph 88).

119. With reference to the line of argument followed by the Court of First Instance, it must therefore be concluded that it mis- 117. In putting forward such grounds, construed this distinction by introducing, however, the Court of First Instance has, as a ground for the separate anti-competi- in my opinion, in fact logically placed in tive nature of the information exchange question the basis on which participation in the information exchange system becomes a separate breach of competition. 42 — Cited i nfootnotes 26 and 31.

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OPINION OF MRS STIX-HACKL — CASE C-194/99 P

I - 10854

THYSSEN STAHL v COMMISSION

being in part inadmissible and as being Treaty. The Court of First Instance failed in otherwise unfounded. this regard to take proper account of the influence which the conduct of DG III had on the structure of competition in the case in point.

2. The adverse effect which the infor- 126. More specifically, the appellant takes mation exchange system and price-fixing issue with the appraisal of the information had on 'normal competition' within the exchange system and the price-fixing from meaning of Article 65 of the ECSC Treaty the point of view of competition law and, in support of its contentions, submits essentially as follows:

Submissions of the parties

127. The Court of First Instance, it claims, failed to take cognisance of the fact that, within the framework of normal compe- tition within the ECSC, undertakings arc 124. The appellant submits that the Court allowed a scope of action which also of First Instance was wrong to hold that the extends to cover the conduct here in issue. practices complained of constituted a The attempt by the Court of First Instance breach of Article 65(1) of the ECSC Treaty to draw a distinction in the legal assess- inasmuch as it based itself on a miscon- ment, to the effect that there were, on the struction of the term 'normal competition' one hand, general, non-binding discussions as used in Article 65( 1 ) of the ECSC Treaty. authorised within the context of cooper- ation with DG III, and, on the other, prohibited agreements and concerted prac- tices, is unconvincing.

agreement between undertakings. An inter- undertakings concerning pricing forecasts nal agreement of this kind was thus in the form approved by D G III might in regarded by DG III as being not only itself have led to 'some parallel conduct' on permissible but also even as unavoidable the market. This is tantamount to a finding in view of the information which it that the undertakings were given in this required. connection an extended scope with regard to agreements on pricing policy which also covered conduct which would otherwise — under Article 85 of the EC Treaty (now Article 81 EC) — have been treated as in breach of competition. In so doing, how- ever, the Court of First Instance acted at variance with the reasons which it had 129. The judgment under appeal is in any given for the breach of Article 65(1) of the event contradictory inasmuch as the Court ECSC Treaty and set out in paragraphs of First Instance held, in paragraph 318, 318, 330 and 411 with regard to the with regard to price-fixing, that none of the individual infringements. provisions of the ECSC Treaty permits concerted price-fixing practices. On the other hand, in paragraph 269, it defined 'concerted practices' in such wide terms that even the exchange among undertak- ings of pricing forecasts, considered per- missible by Mr Kutscher, would have to be classified as a concerted practice. That notwithstanding, the Court of First Instance still found, for instance in para- 131. The Commission points out that the graph 534, that the Commission knew scope of the term 'normal competition' nothing of the breaches of Article 65(1) of within the European Coal and Steel Com- the ECSC Treaty. munity cannot be determined by the Com- mission itself but is defined by the Treaty.

133. The appellant's argument could be — The Court of First Instance inconsist- accepted only if the 'situation envisaged ently used the term 'concerted prac- and accepted by DG III' had had the result tices' as meaning a restriction of nor- of removing from the conduct complained mal competition; of any tendency adversely to affect compe- tition within the ECSC. The Court of First Instance, however, did not make any such finding. Rather, it simply refrained in paragraphs 643 and 644 from comparing the economic repercussions of the conduct in question with the position which would — In assessing the fine under Article 65(5) have arisen had no contact been established of the ECSC Treaty, the Court of First- among the undertakings, and instead com- Instance applied a different construc- pared those repercussions only with the tion of normal competition to that position envisaged and accepted by DG III. applied in connection with the issue of the breach of Article 65(1) of the ECSC Treaty.

Appraisal

'while it is true that this may, to some extent, weaken the effects of competition..., 136. The appellant is not challenging the that consideration cannot justify an inter- general appraisal by the Court of First pretation of Article 65 authorising under- Instance that the oligopolistic nature of the takings to behave in such a way as... relevant markets and the application of reduces competition even further [emphasis industrial-policy rules distinguish normal added]... In view of the consequences competition from competition in its ideal which the oligopolistic structure of the form. In my view, this raises rather the market may have, it is all the more necess- more extensive question whether the Court ary to protect residual competition'. of First Instance erred in law in limiting the scope of the disruptions to the ideal form of competition covered by the ECSC Treaty ('system-inherent' disruptions) to the oli- gopolistic nature of the relevant markets 138. This statement of principle by the and to the correct application of the indus- Court of First Instance may well retain trial-policy rules under the ECSC Treaty. validity beyond the oligopolistic structure The appellant's reproach is that the Court of the ECSC markets. The reason for this is of First Instance ought to have examined that neither the disruptions in the form of whether the 'special framework conditions the special features of the European Coal of the individual case' produced through and Steel Community, which were exam- the conduct of a Community institution ined by the Court of First Instance, nor the might not also have been a disruption to 'special framework conditions of the indi- the ideal form of competition covered by vidual case' (occasioned by a Community the ECSC Treaty. Were that the case, institution), which in the appellant's view normal competition would then also prob- are covered by the ECSC Treaty through ably as a result fall below the threshold of the use of the concept of normal compe- ideal competition. In turn, the Court of tition, result in partial or temporary 'de- First Instance ought, in the appellant's struction' of competition. In fact what is in view, to have drawn the appropriate con- issue is rather — as the Court of First clusions in applying Article 65(1) of the Instance correctly held — at most a ECSC Treaty. 'weakening' (of the effects) of competition. The difference presumably lies in the fact that, where competition has been 'de- 46 — The system under Articles 46, 47, 48 and 60 of the ECSC stroyed', the question may well arise as to Treaty was examined in relation to Article 65(1) of the ECSC Treaty. whether there can still be any anti-com- 47 — 'Competition' within the meaning of Article 81 EC. petitive conduct at all. In the case of

143. With regard to the information exchange system, the Court of First Instance found, in paragraphs 542 and 141. Citing the witness statement of the 549 of the judgment under appeal, that DG III official Mr Kutscher, the appellant the Commission had been deliberately kept concentrates its argument on the conten- tion that the Commission, according to its 49 — Paragraph 485. 50 — The Court of First Instance thereby overlooked the fact that the pricing agreements resulting from the meetings 48 — As the Court of First Instance correctly states in paragraph arranged by DG; III on the basis of Decision N o 2448/88 303, citing the case-law of the Court of Justice (Opinion even fell outside the legal scope of Decision No 2448/88 1/61 11961] ECR 243; judgments in Case C-128/92 Banks until that decision expired in mid-1990. According to v British Coal |1994] ECR 1-1209, Case 1/54 Vrance v Article 2 thereof, discussions up to mid-1990 could ilea! High Authority |1954-1956] ECR 1, Case 8/57 Croupe- exclusively with production and delivery quantities. On incut ács Hants Fourneaux et Aciéries Beiges v High the other hand, those discussions could not involve Authority 11957 and 1958] ECR 245, at p. 253): 'The forecasts or even development trends, as under Article 2 objective of free competition... has, within the [ECSC] the i n f o r m a t i o n system of C o m m i s s i o n Decision Treaty, an independent chatncter and the same binding N o 2448/88 was intended only to provide the Commission force as the other Treaty objectives laid down in Articles 2 monthly on a retrospective basis with data on established to 4'. production and delivery quantities.

145. This part of the ground of appeal takes issue with the alleged misconstruction 148. In the appellant's view, this suggests of the concept of 'normal' competition such a broad definition of the term 'con- within the ECSC based on the assumption certed practices' that even the conduct of of the existence of 'concerted practices'. In undertakings which do not have any inten- order better to appreciate the question of tion whatever of influencing their competi- tors' market conduct might constitute an infringement of competition law. However, 51 — The Court of First Instance might well also, through an appraisal of the evidence contained in the witness state- ment of M r Kutscher (an appraisal which was not carried out), have concluded that the pricing agreements of the 52 — Case T-1/89 Rhône-Poulenc v Commission [1991] present kind clearly did not constitute that 'consensus' ECR II-867, one of the Polypropylene cases. For the which D G III required and expected. This may be judgments of the Court of Justice on the appeals in those illustrated in particular by the Commission's evident cases, see Case C-49/92 P Commission v Anic Partecipa- interest in data prepared for purposes of technical infor- zioni [1999] ECR I-4125 (hereinafter 'the Polypropylene mation but not data 'standardised' in an anti-competitive cases'). manner. 53 — Paragraph 269.

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THYSSĽN STAHL v COMMISSION

LCR 2021. 56 — Judgments in the Polypropylene appeals, as in Case C-49/92 P (cited above in footnote 52). In paragraph 118 of the latter judgment the Court staled: 'It follows that, as is clear from the very terms of Article 85( 1 ) of the [EC] Treaty, a concerted practice implies, besides under takings' concerting together, conduct on the market 149. The appellant's submission is thus pursuant to those collusive practices, and a relationship based essentially on the contention that, of cause and effect between the two.' In its judgment in Case C-291/98 P S a r r i o v Commission | 2 0 0 0 | in its view, the Court of First Instance ruled ECR I-9991 — one of the Carlonboard cases — the Court held that there may be a breach of competition that conduct must be intended to result in even if an involved undertaking participated passively in parallel market conduct before it can be the agreements but did not itself take part i n the resultine, parallel conduct on the market. anti-competitive as constituting a 'con 57 — See Case C-7/95 P (cited i n footnote 26). Considered in this certed practice'. light, the Court, in its judgments in the Polypropylene cases (cited m footnote 52), delivered only a short time later, perhaps chose an excessively broad formulation, which might also lead to misunderstandings inasmuch as those cases also involved, inter alta, information exchange

This provides a reason for directed at maintaining the decision-making independence of undertakings, the case presents itself differently in that outlining briefly this type of breach of regard. Evidence must be provided of parallel market competition on the basis of the existing conduct because serious doubts might otherwise be raised on a regular basis as to whether the practices compiameli case-law of the two Community Courts: of in an individual case are at all of such a kind as to adversely affect decision-making independence. 58 — See the case-law cited in footnote 52. 59 — Case 56/65 Société Technique Minière v Maschinenbau Ulm [1966] ECU 235 and Case C-49/92 1' (cited in footnote 52). The market effect will be relevant only if there is no objective in restraint of competition or where

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OPINION OF MRS STIX-HACKL — CASE C-194/99 P

when the fine is being set, in the context of that the agreement must not bring about 62 the seriousness of the act. 60 the parallel market conduct.

154. As the latter indeed reflected the Court of First Instance's view of the law 63 at the time of the judgment under appeal, 152. The appellant's invocation of the and the Court of First Instance expressly citation, in the judgment under appeal, of invokes its judgment in Rhône-Poulenc, it the Rhône-Poulenc judgment 61 is, in my must be assumed that, in the paragraph view, misleading for the following reasons. under challenge, the Court of First Instance The assumption by the appellant that, in was dealing solely with the question of the the paragraph of the judgment under need for verifiable parallel market conduct. appeal which it cites, the Court of First Even considered in this light, however, the Instance is proceeding on the basis that the fact remains that it cannot be inferred from agreement need not have 'had as its object' this paragraph that the Court of First the subsequent parallel market conduct of Instance intended to state a view on the the participants, would certainly appear to question of the purpose of specific prac- be based on a misunderstanding of the tices. German term 'erstrecken' used in the judg- ment under appeal:

I - 10862

THYSSEN STAHL v COMMISSION

cannot be inferred from the judgment stated — as indicated above 64 — that under appeal that an exchange of infor- evidence of economic impact is in principle mation remaining solely within the par- not necessary for a finding that Article 65(1 ) ameters of what the Commission required of the ECSC Treaty has been infringed. for the performance of its duties within the From this the Court of First Instance lawful boundaries of the ECSC Treaty concluded that the economic impact of an could constitute an infringement of com- infringement also could not in principle 65 petition. be taken into account for the purpose of determining the amount of the fine.

156. Consequently, it is to that extent not possible to identify any contradiction to other passages in the judgment. 159. However, in view of the pricing agreements, the Court of First Instance took into account, in paragraph 644, the fact that, even if participants' conduct were irreproachable under competition law, it 157. The second part of the fourth ground 'could not be ruled out that such contacts of appeal must therefore be dismissed as between undertakings, accepted by DG III, unfounded in so far as it alleges a contra- could have reinforced some parallel con- dictory use of the concept of 'concerted duct on the market, particularly with practices' as meaning a restriction of nor- regard to the price increases occasioned, mal competition within the meaning of at least in part, by the favourable economic Article 65(1) of the ECSC Treaty. trends in 1989'.

164. It cannot therefore be assumed that 162. In my view, the appellant, in its the Court of First Instance thereby placed arguments on this branch of the ground itself in contradiction with those para- of appeal, fails to appreciate that what is graphs of the judgment in which it set out here in issue is not at all the factual aspect the reasons why price-fixing constituted an of specific practices but rather a question of offence. evidence in regard to the causal connection between the practices and the resultant parallel market conduct: if there is proof of certain practices, parallel conduct on the market and a causal connection between the two, that will constitute proof of a breach of Article 65(1) of the ECSC Treaty. 165. The second part of the fourth ground H o w e v e r , should the C o u r t of First of appeal must therefore be dismissed as Instance conclude that lawful conduct unfounded in so far as it alleges a contra- would have resulted in the same or similar dictory use of the term 'normal compe- parallel market conduct, that will give rise tition' in Article 65(1) and (5) of the ECSC to serious doubts as to the causal connec- Treaty. tion between the practices and the market conduct and the evidence of facts constitut- ing the infringement can no longer be regarded as having been adduced.

166. The fourth ground of appeal alleging a legally defective assessment of the sub- s t a n t i v e l e g a l i t y of t h e D e c i s i o n (Article 65(1) of the ECSC Treaty) is 163. In the present case, however, the therefore in part inadmissible and in the Court of First Instance simply states with main unfounded. great caution in paragraph 644 that it 'could not be ruled out' that even lawful conduct 'could have [not even "produced" 66 — That said, however, the hypothetical assumption set out in but simply] reinforced some parallel con- this paragraph of the judgment under appeal also does not appear to me to be entirely compréhensible in regard to the duct on the market'. It cannot therefore be grounds for reducing the relevant portion of the fine.

1. Inadequate consideration of the fault principle (fifth ground of appeal) 169. Finally, the appellant takes issue with the 'intention to conceal' assumed in this connection by the Court of First Instance in paragraphs 522 and 523 of the judgment Submissions of the parties under appeal. In the context of the Com- mission's monitoring system it was necess- ary for the undertakings to collate and prepare the information supplied to DG III. The information exchanged and that sup- plied to DG III was thus not identical as the 168. The appellant takes the view that the information supplied to DG III must have findings of fact by the Court of First been in summary form and thus more Instance would allow only a — much general than the discussions actually con- reduced — degree of fault to be attached ducted by the undertakings. to it. While, according to paragraphs 504, 514, 589 and 590 of the judgment under appeal, the Court of First Instance con- siders the various infringements to be manifest, this stands in contradiction to its own finding in paragraph 643 that, through the conduct of DG III in connec- tion with the system of monitoring between mid-1988 and the end of 1990, a 'degree of 170. The Commission submits that this ambiguity' arose with regard to the scope ground of appeal is inadmissible in so fai- of the concept of 'normal competition' as as, in challenging the finding of the Court used in the ECSC Treaty. As is clear from of First Instance that the infringements paragraph 643, the Court of First Instance were clear and manifest, that there were even considered it possible, in view of the actual agreements on price-fixing, that involvement of DG III, that the exchange of information on deliveries was exchanged individual data in the present case need not and that there was an intention to conceal, necessarily have constituted a breach of the appellant is challenging the deter-

I - 10866

THYSSUN STAHL v COMMISSION

178. The passage in contradiction to this 69 2. Calculation of the portion of the fine also features in the remarks on the appli- relating to participation in the information cation for a reduction of the fine, but exchange system (sixth ground of appeal) occurs there in connection with the 'pro- portionality' of the fine. In addition to several other grounds adduced before the Court of First Instance to demonstrate that the fine was disproportionate, that passage Submissions of the parties also deals with the aspect of the 'economic impact' of the practices complained of. In this the Court of First Instance compares the position which arose as a result of the disputed practices with the position that would have arisen had the undertakings 181. The appellant argues that, in para- met solely in the interests of DG III. graph 649 of the judgment under appeal, the Court of First Instance deemed par- ticipation in the information exchange system to constitute a separate infringe- ment of Article 65( 1 ) of the ECSC Treaty justifying an increase in the fine, even though the information exchange system was of merely ancillary significance in 179. In the comparison of two descriptions relation to the other infringements. of economic conditions, however, it strikes me as unnecessary, if indeed not redundant, to mention subjective aspects such as supposed or actual uncertainties concern- ing specific legal concepts. 70 Considered thus, it would also appear that no con- clusions can be drawn from paragraph 643 182. The Commission refers to its other for the purpose here sought by the appel- submissions concerning the separate nature lant. of the infringement consisting in partici- pation in the information exchange system.

184. In the Commission's view, the grounds on which the Court of First Instance reduced the fine in respect of price-fixing are not applicable in respect of participation in the information exchange system. 187. This part of the sixth ground of appeal can also be distinguished from the question discussed above 72 as to whether the Court of First Instance erred in law in failing also to take into account in its Appraisal assessment of the information exchange system hypothetical assumptions which it applied in assessing the level of the fine. The issue there for determination was whether the line of argument of the Court 185. The sixth ground of appeal consists of of First Instance in the examination of the two parts. First, it is necessary to examine legal consequences ought to have in general whether the Court of First influenced its examination into whether Instance was correct in confirming that the facts constituting the offence had been participation in the information exchange established. Here — in contrast — the system could constitute a separate element question is whether the establishment of in the calculation of the fine. If so, it will the facts constituting the offence ought to then be necessary to address the second have any, and if so, what, bearing on the part, by which the appellant argues that the legal consequences. Court of First Instance should also have applied the grounds for reduction by which it lowered the portion of the fine cor- responding to price-fixing to that portion of the fine relating to participation in the information exchange system. 188. The Court of First Instance con- firmed — correctly so 73 — the Commis-

189. The grounds on which the Court, in the Tractor cases, 74 established the distinct nature of the facts constituting the offence cannot, in my view, be transposed unre- strictedly to the question of the distinct nature with regard to the legal con- sequences. This is, not lastly, because the 191. In the judgments in Mo och Domsjö facts underlying those cases gave no cause and Others (the Cartonboard cases) 76the to address that question. situation was also different as the Com- mission had already proceeded, in regard to

192. The facts of the present case, how- ever, contain both elements: the Commis- sion had, in its Decision, proceeded on the basis of separateness in regard to the facts and had taken account of this participation 195. In the determination of the level of in the information exchange system by penalties in competition proceedings the adding on a separate portion to the fine. Member States confer — subject to judi- Considered in this light, the question arises cial review — a relatively broad degree of here for the first time as to whether several discretion on national competition moni- separate infringements of competition law toring authorities. Although the 'gravity' of can also be considered separately in regard the breach/breaches is often expressly men- to their legal consequences. tioned as an assessment criterion in this connection, 77 it is in most instances not specified in such cases whether the aspect of dealing with several interrelated breaches can, or even must, also be covered. Denmark, Germany, Italy, Lux- embourg, Austria and Portugal have codi- fied rules on the consideration of multiple 193. Article 65(5) of the ECSC Treaty does infringements of the competition legislation not itself indicate how several courses of of those respective Member States. Such a action are to be dealt with, nor does it situation is in part dealt with according to resolve the question whether and under the 'Aspirationsprinzip', that is to say, an what prior conditions several courses of overall penalty is imposed which in most action that are dubious from the point of cases will be based on the level fixed for the view of competition law may perhaps most serious infringement. 78 together constitute facts giving rise to only one offence. Likewise, Article 65(5) of the ECSC Treaty does not indicate whether and 77 — Belgium, Finland, France, Greece, Ireland, the Nether- how the existence of facts giving rise to lands, Sweden, Spain and the United Kingdom. 78 — In part this level represents an upper limit, while in part it several offences are to be reflected with forms the basis for a corresponding increase in the penalty. In some Member States there are specified upper limits regard to the legal consequences. From this even in the case of increases.

200. In the case of an information 197. Consequently, it cannot be assumed exchange system constituting a separate that Community law (Article 65(5) of the infringement, the demerits of the act, ECSC Treaty) obliges the Commission to according to the Court's case-law, 80 lie in take account, when fixing a fine, of several the fact that the risk of uncertainty intrinsic interrelated breaches as a factor for increas- to free competition is partially or wholly ing that fine, or that it prevents the Com- removed. However, the demerits of 'classic' mission from so doing. infringements of competition, such as price- fixing or market-sharing, lie in a separate disruption of free competition, namely the restriction placed on the decision-making independence of participating undertak- ings. Consequently, one can proceed on the premiss that there has been a 'con- 198. The scope which the relevant provi- sumption' of the demerits of the first action sions thus confer on the Commission does, (removal of the risk attached to lack of however, have its limits where such action knowledge) when the second action is appears arbitrary or inappropriate. committed (restriction of operational free- dom) only if, in the particular case, nothing more remains of the demerits of the first action such as to justify a separate penalty.

199. In order to assess this it is probably necessary to address the basis for any form of penalties, that is to say, the 'demerits' of an action. The steps taken by the Commis- 201. Admittedly, it cannot be ruled out sion would thus be arbitrary or inappropri- that there may be cases in which the ate if it were to take into account one of separate demerits of the information acquired in an information exchange sys- 79 — Sec the Opinion or Advocate General Léger in Case C-185/95 P Baustahlgewebe v Commission [1998] ECR 1-8417. 80 — See the judgments cited in footnotes 26, 31 and 34.

203. Applied to the case in hand, this means that the systematically and regularly supplied information on delivery levels and 206. In regard to the second part of the prices of competitors does not lose its sixth ground of appeal, which alleges that (legally disapproved) value for participants the Court of First Instance reduced only the if price-fixing is operated for a set period portion of the fine relating to price-fixing and market-sharing carried out for speci- but did not object to that portion of the fine fied geographical areas. Indeed, one can which related to participation in the infor- assume rather a certain persistence on the mation exchange system, the following part of the information which might have should be noted: arisen in subsequent further price-fixing or market-sharing, or which also only lies in the fact that participants secured an over- view of the market and its structure which is precisely what the ideal type of trader operating in accordance with Community competition law does not have. 207. The grounds accepted by the Court of First Instance in paragraph 644 of the judgment under appeal for reducing that portion of the fine relating to price-fixing apply — as it expressly states in paragraph 204. In the present case the Commission 646 of its judgment — only in relation to evidently based the increase in the fine on those breaches of competition, but not in

I - 10872

THYSSEN SIAHI v «IMMISSION

relation to the information exchange sys- 3. The absence of grounds in the Decision tem. explaining the level of the fine (seventh ground of appeal)

209. In this, however, the appellant is challenging a finding of fact by the Court of First Instance which cannot be reviewed in appeal proceedings. 213. The Decision, the appellant continues, also does not indicate how the duration of the infringements was taken into account. In this connection the appellant cites para- 210. The second part of the sixth ground of graph 612 of the judgment under appeal, appeal, alleging that the Court of First according to which 'it is clear from the Instance failed also to apply to partici- Court's analysis of the facts that the Com- pation in the information exchange system mission has duly given reasons for the the grounds applied in reducing the portion duration of the infringing actions taken of the fine relating to price-fixing, must into account in Article 1 of the Decision, by accordingly be dismissed as inadmissible. referring either to the actions of the parties involved or to the reference periods con- cerned by those actions.' The appellant submits that even a detailed study of the Commission's Decision allows of no more 2 1 1 . The sixth ground of appeal, which than conjectures as to the precise period takes issue with the calculation of the within which the Commission placed the portion of the fine relating to participation infringements. It is, in particular, unclear in the information exchange system, is in whether and to what extent account was p a r t inadmissible a n d , for the rest, taken of an interruption to the information unfounded. exchange system.

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OPINION OF MRS STIX-HACKL — CASE C-194/99 P

219. According to settled case-law, 8 1 216. The arguments submitted against the which the Court of First Instance expressly assessment of the duration of the infringe- cites in paragraph 605 of the judgment ment would, the Commission contends, under appeal, 'the scope of the obligation suggest that this ground of appeal is to provide reasons must, in particular, be inadmissible in so far as it is directed assessed in light of the fact that the gravity against the evaluation of facts, a task for of the infringements must be determined by which the Court of First Instance alone is reference to a variety of factors such as the responsible. particular circumstances of the case, its context and the dissuasive element of fines, there being no binding or exhaustive list of

217. So far as the calculation of the fine is 81 — Order in Case C-137/95 P SPO and Others v Commission [1996] ECR I-1611; judgment in Case C-22/94 Irish concerned, the Court of First Instance Farmers Association and Others [1997] ECR 1-1809; judgment in Case T-150/89 Martinelli v Commission stated that a disclosure in the Decision of [1995] ECR II-116J.

I - 10874

THYSSEN STAHL v COMMISSION

criteria which must be applied... Fur- question were of 'long duration' and even thermore, the Commission enjoys a margin demonstrated this with the help of tabular of discretion when fixing the amount of lists, divided up according to the individual each fine and cannot be regarded as being undertakings involved, 'and thus expresses obliged to apply a precise mathematical the principle that partial fines correspond- formula for that purpose'. ing to the different infringements arc to be broken clown on the basis of their dur- ation.' 84

82 — See footnote 76. 84 — Paragraph 607 of the judgment under appeal. 83 —Judgment cited in footnote 76 (paragraph 44). 85 — Judgment cited in footnote 76 (paragraph 47).

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OPINION OF MRS STIX-HACKL — CASE C-194/99 P

any interruption whatever must necessarily E — The ground of appeal alleging that be considered to the corresponding the duration of the proceedings amounted degree. 86 to a breach of the ECHR (eighth ground of appeal)

226. In its final ground of appeal the 224. In the present case, therefore, the appellant submits that, by reason of the Commission would even have satisfied its excessive duration of the proceedings, the duty to provide reasons if it had not — as Court of First Instance infringed its right to was done in the Decision — set out in a decision within a reasonable period of concrete terms, by preparing individual time enshrined in Article 6(1) of the tables, the connection between the duration European Convention for the Protection of each individual infringement and the of Human Rights and Fundamental Free- individual level of the fine. It cannot there- doms (the ECHR). fore also be required of the Commission that it provide even more detailed infor- mation in regard to the duration in time of each individual infringement committed by each individual participant. It must suffice if the overall duration of the infringements Submissions of the parties in question, which the Commission used as the basis for setting the fine, can be ascertained.

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THYSSEN STAHL v COMMISSION

such a period of time, a decision will affect ceedings in the Baustahlgewebe case in an undertaking that has changed in terms itself demonstrates that the Court of First of its economic performance and staff in Instance cannot be accused in the present comparison with the period when it was case of undue tardiness in the proceedings. involved in the infringements. For those In the three years between the conclusion of actually involved this resembles rather a the written procedure and the decision to denial of justice. open the oral procedure, numerous meas- ures of procedural organisation were taken. Further, the period of one year between the conclusion of the oral procedure and delivery of the judgment was, having regard to the scope of the case, exceedingly 2 2 8 . T h e Commission c o n s i d e r s this short. ground of appeal to be unfounded. In the first place, the appellant may, by its invocation of Article 6(1) of the ECHR, take issue only with the duration of the proceedings before the Court of First Instance, but not with that of the adminis- trative procedure. However, regard being had to the circumstances of the case, the Appraisal proceedings before the Court of First Instance were not excessively lengthy.

observance the Court ensures 89. . . For that appellant in the present case to have its purpose, the Court draws inspiration from action dealt with in a reasonable time, the constitutional traditions common to the within the meaning of Article 6(1) of the Member States and from the guidelines ECHR, it is first necessary to determine the supplied by international treaties for the relevant duration. protection of human rights on which the Member States have collaborated or of which they are signatories. In that regard,

234. In order to determine whether there was an infringement of the right of the 92 — Thus, according to the case-law of the Court of Human Rights, the relevant period under Article 6(1) ECHR in 'criminal offences' within the meaning of that article does 89 — See, for example, Opinion 2/94 [1996] ECR 1-1759, not begin to run only when the action is brought before a paragraph 33. judicial body but already when the person concerned is 90 — See, for example, Case 222/84 Johnston [1986] ECR 1651, informed of a criminal charge or suspicion, and is thus

pean Union. See also Case C-274/99 P Connolly v judicial body is subject to implementation of that decision Commission [2001] ECR 1-1611, paragraph 38. (see the Erkner and Hofauer judgment of 23 April 1987, 91 — Baustahlgewebe (cited in footnote 87), paragraph 21; see Series A, No 117, paragraph 64, and that of 18 July 1986 also Joined Cases C-174/98 P and C-189/98 P Netherlands in Lithgow and Others, Series A, No 102, paragraph 199). and van der Wal v Commission [2000] ECR 1-1, paragraph 93 — Baustahlgewebe judgment (cited in footnote 87), para- 17. graphs 19 (and the case-law there cited) and 28.

239. It follows from the Court's case-law as well as from that of the Court of Human 237. It is, however, unnecessary to reply to Rights that the reasonableness of the length the question whether the duration of the of proceedings must be determined in the procedure before the Commission can also light of the circumstances specific to each be addressed in the examination, in the case and, in particular, the importance of present appeal proceedings, of the issue the case for the persons concerned, its whether protection of rights was provided complexity and the conduct of the parties within a reasonable period in so far as it involved and of the competent autho­ was only in its statement of appeal — and rities. 9 6 However, as the reasonableness even then only incidentally — that the of the length of proceedings must be appellant raised an argument based on the determined according to the circumstances duration of the procedure before the Com­ of the individual case on the basis of a mission. At no point in the proceedings series of factors, a comparison with other before the Court of First Instance did it proceedings — such as those in the Baus- argue that it felt adversely affected by the tahlgewebe case — can provide at most duration of the procedure before the Com­ indications for such a determination. 9 7 mission. The ground of appeal must there­ fore be dismissed as inadmissible in so far as this aspect was first raised in the appeal proceedings before the Court. 95 240. First, there can be no doubt in the present case that real interests of the appellant were in issue in the proceedings 94 — S e e , inter alia. Case 223/85 RSV v Commission [1987] ECR 4617, paragraphs 14 and 15, and Joined Cases T-213/95 and T-18/96 SCK ami FNK v Commission 119971 ECR 11-1739, paragraph 56, together with the Court's case-law there cited; further, with regard to 96 — Sec Z v Parliament (cited in footnote 94), paragraph 24, disciplinary proceedings, sec Case C-270/99 P Z v Baustahlgewebe (cited in footnote 87), paragraph 29, and Parliament [2001] ECR I-9197, paragraph 24; see also the judgments of the Court of Human Rights in the cases the comments of Advocate General Mischo in his Opinion of Erkner and Hofaner (cited m footnote 92), paragraph in Case C-244/99 P (cited in footnote 15), at paragraph 95 66; Kemmache of 27 November 1991, Series A, N o 218, et seq. The particularities inherent in the Community's paragraph 60; X v France of 31 March 1992, Series Λ, judicial structures cannot, moreover, justify as such any No 234-C, paragraph 32; Phocas v France of 23 April infringement of the fundamental right to have a case 1996, Reports of judgments and Decisions 1996-11, p. 546, disposed of within a reasonable period of time conferred paragraph 7 1 ; and Gary f allait Alilìp. v Greece of by Article 6 ECHR: see (concerning a separate fundamen­ 24 September 1997, Reports of Judgments and Decisions tal right) the Court's order in Case C-17/98 Emesa Sugar 1997-V, p. 1821, paragraph 39). 120001 ECR I-665, paragraph 18. 97 — See also along these hues the Opinion of Advocate (¡encrai 95 — Case C-136/92 P Commission v Brazzcllt Lualdi ami Mischo m PVC 11 (cited in footnote 15), at paragraphs 158 Others [1994| ECR I-1981. and 159.

244. That being so, it must be stated that 242. It is clear from the judgment under the Court of First Instance was called on to appeal and from the case-file that the Court resolve a dispute that was complex in terms of First Instance was required to examine of both the factual and legal issues particularly copious documentation 101 and involved. address a large number of issues of fact and

98 — See also in this connection the Court's views (which to this extent are transposable) in paragraphs 30 and 31 the Baustahlgewebe judgment (cited in footnote 87). 245. It thus remains to consider the dur- 99 — See Articles 4 and 5 of the Decision. 100 — Compare in this regard the case-law of the Court of ation of the proceedings in the light of the H u m a n Rights (see, for example, the judgment of conduct of the undertakings, the Commis- 8 February 1996 in A. and Others v Denmark, Reports of Judgments and Decisions 1996-I, paragraph 78), according to which in special cases, wnere there is a threat of irreversible damage, increased urgency of the decision is presumed. 102 — See paragraphs 4 and 56 of the judgment under appeal. 101 — The material submitted by the Commission to the Court 103 — See the judgment of the Court of H u m a n Rights of of First Instance on 24 November 1994 alone comprised 16 September 1996 in Süßmann v Germany, Reports of some 11 000 documents (paragraph 51 of the judgment Judgments and Decisions 1996-IV, paragraphs 56 and under appeal). 59.

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THYSSĽN STAHL v COMMISSION

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OPINION OF MRS STIX-HACKL — CASE C-194/99 P

250. Rather, the situation was clearly that, reasonable period, it may in principle during the period up to the oral procedure, rather be entirely appropriate to examine the Court of First Instance was substan- in greater detail the nature and duration of tially occupied with the issue of the right of the activities, paying particular attention to access to the Commission's procedural their respective causes (whether attrib- documents. 107 In this it had to determine, utable to the undertakings, the Commission first, whether the documents concerned or the Court of First Instance itself). were 'confidential' and, second, whether they were 'internal' documents which had, or could have had, no significance in regard to the legal appraisal of the Decision. The right of access to Commission documents and production of the documents were dealt with by the Court of First Instance in its orders of 19 June 1996 108 and 253. At the same time, however, account 10 December 1997. 109 has to be taken of the interests of the parties and of the Court of First Instance that are in issue. Thus, it must be held in regard to the appellant that it is entitled in principle to exhaust all procedural avenues that may be of use to it. 110 This certainly 251. While it is thus evident that no also includes the request for access to the periods of manifest inactivity are identifi- Commission's documents. There is also able, this in no way signifies that extensive therefore, contrary to what the Commis- activity on the part of the Court of First sion submits, no contradiction — obvious Instance rules out any possibility that abuse apart — in first making such entitlement to protection of rights within requests and subsequently complaining a reasonable period might have been about the duration of the proceedings. infringed.

255. The appellant, however, has failed to adduce any firm evidence of such instances as would enable the Court to rule accord­ ingly. 258. There is nothing in the judgment under appeal to suggest that the Commis­ sion conducted itself with unnecessary delay. As is clear from paragraph 52 of 256. The appellant's complaint that the that judgment — a point not challenged in issue of document access ought to have this regard — it was rather the undertak­ been resolved at the stage of the procedure ings by themselves which contributed to before the Commission, with the result that certain delays inasmuch as they failed to 'catching up' in the proceedings before the comply correctly and promptly with a Court of First Instance gave rise to delay, is measure of procedural organisation invalid inasmuch as document access in the ordered by the Court of First Instance. 1 1 2 procedure before the Commission would then have led to delay in that procedure, and because the Commission cannot, as a matter of principle, be accused of seeking to protect the interests of third parties ('confidentiality') or its own interests inde­ pendent of the proceedings ('internal docu­ 259. To summarise, therefore, regard being ments'). had to the requirements of adversarial proceedings and its reasonable degree of discretion in investigating the necessary reasoning of the Decision, and, not lastly, bearing in mind the fact that the interests of 257. Nor is it clear from the information the parties must be guaranteed equally and contained in the judgment under appeal — which the appellant does not challenge or the linguistic rules complied with, 1 1 3 the criticise as being incomplete — why the Court of First Instance was not remiss in examination allegedly lasted for an unrea­ expediting the proceedings and the dur­ sonably long time. Assessment of the 'con­ 1 1 1— This relates to the submissions of various parties to the fidentiality' of the Commission's docu­ proceedings hefore the Court of First Instance in regard to ments necessitated a wide-ranging examin­ the role of other Directorates-General, particularly DG III. On this point see also paragraph '10 et seq. ahove. ation by the Court of First Instance for the 112 — The replies to the first questions put hy the Court of First purpose of balancing the interests repre­ Instance had heen incomplete. 113 — Bausttihlgewebe judgment (cited m footnote 87), para­ sented by the potential rights of third graph 43.

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

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