Súdny dvor Európskej únie·26.9.2002

C-195/99

ECLI:EU:C:2002:536

Súd: Súdny dvor Európskej únie
IČS: 61999CC0195
Zdroj: eur-lex.europa.eu ↗

KRUPP HOESCH v COMMISSION

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

Table of contents

I — Introduction I - 10942

II — Forms of order sought and grounds of appeal 1 - 10943

III — Examination of the case I - 10946

A — The ground of appeal alleging a legally defective assessment of the formal legality of the Decision (first ground of appeal) I-10946

1. The quorum when the Decision was adopted by the Commission I- 10946

2. The question of the proper adoption by the Commission of the Decision and the substantive correspondence between the versions of the Decision as notified and as adopted 1 - 10947

B — The ground of appeal alleging that the Court of First Instance exceeded its jurisdiction (second ground of appeal) I-10949

C — The grounds of appeal alleging that the assessment of the substantive legality of the Decision was defective in law I -10950

1. Whether participation in the information exchange system constituted a separate infringement of competition (second ground of appeal) I - 10950

2. The adverse effect which the information exchange system had on 'normal competition' within the meaning of Article 65 of the ECSC Treaty (second ground of appeal) 1 - 10952

3. The assessment of the appellant's de facto contribution to the information exchange system (second ground of appeal) I - 10953

4. The appellant's commission of an offence in relation to a price-fixing agreement for the German market (third ground of appeal) I -10956

1 — Original language: German.

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D — The grounds of appeal relating to the fine I -10957 1. Inadequate consideration of the fault principle (fourth ground of appeal). 1-10957 2. The absence of grounds explaining the level of the fine (fifth ground of appeal) 1-10958 E — The ground of appeal alleging that the duration of the proceedings in the Court of First Instance amounted to a breach of the ECHR (sixth ground of appeal) 1-10960 IV — Conclusion Į -10961

I — Introduction and was replaced by an individual and voluntary information scheme. 4

1. The present case is an appeal brought against the judgment delivered by the Court of First Instance on 11 March 1999 in Case 3. O n 16 February 1994 the Commission T-147/94 ('the judgment under appeal'). 2 adopted against 17 European steel under takings and one of their trade associations ' C o m m i s s i o n Decision 94/215/ECSC... relating t o a proceeding p u r s u a n t t o Article 65 of the ECSC Treaty concerning agreements and concerned practices engaged in by European producers of beams' 5 (hereinafter 'the Decision'). The 2. Reference is made to the judgment under parties to which the Decision was appeal for the historical background to addressed had, in the Commission's view, relations between the steel industry and the breached the competition law of the Euro Commission from 1970 to 1990, and in pean Coal and Steel Community by estab particular the rules adopted to deal with lishing, in an anti-competitive manner, the m a n i f e s t crisis a n d C o m m i s s i o n systems for the exchange of information Decision N o 2448/88/ECSC of 19 July and engaging in price-fixing and market- 1988 introducing a surveillance system for sharing. The Commission imposed fines on certain products of undertakings in the steel 14 of the undertakings. In the case of industry ('Decision N o 2448/88'). 3 The Krupp Hoesch Stahl AG (hereinafter 'the surveillance system established pursuant to appellant') the Commission imposed a fine the said Decision expired on 30 June 1990 of ECU 13 000.

2 — Case T-147/94 Krupp Hoesch v Commission [19991 ECR 4 — See paragraph 33 of the judgment in Case T-141/94 Thyssen II-603. Stahl v Commission [1999] ECR 11-347. 3 — OJ 1988 L 212, p. 1. 5 — OJ 1994 L 116, p. 1.

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4. Several of the undertakings concerned, (3) order the Commission to pay the costs including the appellant, together with the of the proceedings at first instance and trade association, challenged the Decision those of the present appeal. before the Court of First Instance. The Court of First Instance ultimately reduced the fine to EUR 9 000 and dismissed the remainder of the action.

7. The Commission contends that the Court should: 5. On 25 May 1999 the appellant lodged with the Court Registry an appeal against that judgment.

( 1 ) dismiss the appeal;

II — Forms of order sought and grounds of appeal

(2) order the appellant to pay the costs of 6. In its appeal, the appellant claims that the proceedings. the Court should:

(1) set aside the judgment delivered on 11 March 1999 by the Court of First 8. According to its statement of appeal, the Instance in Case T-147/94 in so far as appellant invokes the following grounds of that judgment fixes the fine imposed on appeal: the appellant at EUR 9 000 (paragraph (2) of the operative part), dismisses the appellant's action (paragraph (3) of the operative part) and orders the appel lant to bear its own costs and to pay half of the Commission's costs (para First ground of appeal: graph (4) of the operative part);

(2) annul Articles 1, 3 and 4 of Commis sion Decision C(94)321 final of 'The judgment misconstrues the formal 16 February 1994 relating to a pro provisions of the Commission's 1993 Rules ceeding pursuant to Article 65 of the of Procedure governing authentication of ECSC Treaty concerning agreements the Commission Decision and therefore and concerted practices engaged in by unjustifiably proceeds on the assumption European producers of beams; that there was a validly adopted decision.'

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Second ground of appeal: Fourth ground of appeal:

'The judgment infringes Article 65(5) of the ECSC Treaty and the fault principle 'The judgment breaches in several respects inherent in that provision by unjustifiably Article 65(1) of the ECSC Treaty. It assuming that the appellant was aware of wrongly categorises the monitoring of the illegality.' orders and deliveries as a separate breach of competition rules without being able to explain why it was anti-competitive. It misconstrues the consequences of the term "normal competition" within the meaning of Article 65(1) of the ECSC Treaty and therefore errs in its finding that the under- Fifth ground of appeal: takings' conduct the subject of complaint was in breach of competition rules. The Court of First Instance also misconstrues the legal significance of the fact that the appellant only took part in the exchange of information system as such.' 'The Court of First Instance breached Article 15 of the ECSC Treaty by failing to take proper account of the requirement that adequate reasons be given for the determination of the fine. It erred in law in its assumption that a lack of reasons could be remedied during the judicial proceed- ings.' Third ground of appeal:

Sixth ground of appeal:

'Finally, in finding that the appellant had come to an agreement to fix prices prior to 18 April 1989, without substantiating either the content or date of that agree- ment, the judgment infringes the appel- 'Through the excessive length of the pro- lant's rights of defence, Article 15 of the ceedings of almost five years, the Court of ECSC Treaty, the principle of certainty and First Instance infringed the appellant's the appellant's entitlement to reasonable entitlement to vindication of its legal rights vindication of its legal rights.' within a reasonable period.' I - 10944

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Summary of the grounds of appeal and participation in the information their component parts according to the exchange system 6did not constitute a essential issues of law involved separate infringement of competition (second ground of appeal) and

9. The submissions relating to the individ ual grounds of appeal and their component the system for the exchange of infor parts indicate that the appellant is alleging mation and the fixing of prices could several breaches of the ECSC Treaty. not have had any detrimental effect on Summarised according to the issues of law 'normal competition' (second ground raised, the appellant is in essence arguing of appeal) and that, in the judgment under appeal, the Court of First Instance breached Commu nity law in that it:

the Decision wrongly assessed the actual contribution made by the appel — erred in law in accepting the formal lant in relation to the system for the legality of the Decision, even though exchange of information (second the Decision had not been adopted in ground of appeal) and the proper manner (first ground of appeal);

the Decision did not contain adequate reasons or substantiation in relation to — exceeded its jurisdiction to carry out a the appellant's involvement in an review under the first paragraph of agreement to fix prices on the German Article 33 of the ECSC Treaty (second market, thereby also constituting an ground of appeal); infringement of Article 15 of the ECSC Treaty (third ground of appeal).

6 — The appellant speaks oi 'riu- monitoring nf orders and deliveries' (in the singular) lnu is obviously referring to both the monitoring of orders and deliveries within the Poutrelles Committee and the exchange of information within the — erred in law in accepting the substan Walzstahl-Vercinigung. As the existence of two systems of information exchange which supplemented each other (see tive legality of the Decision, even paragraph 371 of rile judgement in Case T-141/94 Įcued in footnote 4 | | does not, in the appellant's case, appear to itave though no breach of Article 65(1) of had any hearing on the Decision, the pidgincm under appeal the ECSC Treaty had been committed, or on the appellant's submissions, references in what follows shall uniformly be to 'the' inhumation exchange because system in the smgular.

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— erred in law in its assessment of the fine I I I— Examination of the case and the grounds given for it (fourth and fifth grounds of appeal);

A — The ground of appeal alleging a legally defective assessment of the formal legality of the Decision (first ground of — contrary to Article 6 of the European appeal) Convention for the Protection of Human Rights and Fundamental Free- doms (the 'ECHR'), failed to vindicate the appellant's legal rights within a 12. The first ground of appeal consists of reasonable period (sixth ground of two parts. In the first, the appellant chal- appeal). lenges the assumption made by the Court of First Instance that, at the time of adoption by the Commission, the necessary quorum for voting purposes was present. In the second part, the appellant takes issue with the alleged failure by the Court of First 10. The examination which follows will Instance to hold that there was an infringe- base itself around this summary. The ment of the formal provisions governing grounds of appeal put forward by the the authentication of the Decision. appellant and the subdivisions and argu- ments contained therein, together with the Commission's arguments, will be set out under these individual points.

1. The quorum when the Decision was adopted by the Commission

11. The grounds of appeal in the present proceedings substantively correspond in Submissions of the parties 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. 7 My Opinion in that case is also being delivered today. Where the content of the submissions is the 13. The appellant submits that the Court of same I will refer in this Opinion to the First Instance, in paragraph 70 of the appraisal that I have undertaken in my judgment under appeal, misconstrued the Opinion on Case C-194/99 P. minutes of the session of the College of M e m b e r s of the C o m m i s s i o n on 16 February 1994 at which the Decision 7 — [2003] ECR I-10821. was adopted and, in doing so, breached

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Articles 5 and 6 of the Commission's 1993 Appraisal Rules of Procedure. 8 The Court of First Instance had indeed assumed that the quorum of Commission Members required in order to adopt the Decision had been present, although it is apparent from the wording of page 40 of the minutes that the 17. Since the arguments put forward essen number of Commission Members needed tially correspond to those presented by the to adopt the Decision had not been present. appellant Thyssen Stahl AG in Case C-194/99 P, I refer, in relation to the grounds on which this part of the first ground of appeal should be dismissed as inadmissible, to paragraph 52 et seq. of the Opinion that I am delivering today in the aforementioned case. Those grounds apply 14. This interpretation does not conform to mutatis mutandis. the principle of collegiality ruled by the Court in its judgment in Case C-137/92 P. 9

18. The first part of the first ground of appeal, challenging the alleged failure to 15. The Commission considers this ground take account of the fact that there was not of appeal to be inadmissible since it chal the quorum required for the Decision to be lenges the determination of facts and adopted, must therefore be dismissed on assessment of evidence which come within the ground that it is inadmissible. the purview of the Court of First Instance alone.

2. The question of the proper adoption by 16. In the alternative, it contends that this the Commission of the Decision and the ground of appeal is also unfounded. Page substantive correspondence between the 40 of the minutes records which Cabinet versions of the Decision as notified and as heads and members attended the session 'in adopted the absence of the Commission Members'. However, this does not place in question the documentary function and evidentiary force of the attendance list on page 2 of the Submissions of the parties minutes, which records which Commission Members were present when point XXV was discussed and which were absent.

8 — O J 1993 L 230, p. 15. 19. The appellant takes issue with para 9 — Commission v BASF and Others [1994] ECR J-2555. graphs 83 to 87 of the judgment under

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appeal in which the Court of First Instance was identical to the versions C(94)321/2 rejected as unfounded the appellant's head and C(94)321/3, even though establish- of complaint that version C(94)321 final of ment of their identical nature forms part the Decision notified to it had not been of the determination of the facts. authenticated in accordance with Article 16 of the 1993 Rules of Procedure. The Court of First Instance did not hold that the version notified to the appellant was iden- tical to the versions C(94)321/2 and C(94)321/3, nor did it hold that it had been annexed to the minutes in the due and Appraisal proper manner.

20. The Court of First Instance, the appel- lant continues, assumed that the Decision 23. Since the arguments put forward essen- had been authenticated in the due and tially correspond to those presented by the proper manner and referred, in paragraph appellant Thyssen Stabl AG in Case 85, to the presumption of validity applying C-194/99 P, I refer, in relation to the to Community actions. In doing so it failed grounds on which the second part of the to take proper account of the aim of that first ground of appeal should be dismissed presumption since the presumption of as inadmissible, to paragraph 63 et seq. of validity does not preclude a declaration of the Opinion that I am delivering today in annulment in the event of an infringement the aforementioned case. Those grounds of formal requirements on the adoption of apply mutatis mutandis. a Decision.

21. Further, the Commission was not in a 24. The second part of the first ground of position to produce the minutes with the appeal, which challenges the failure to take original signatures of its President and account of the improper authentication of Secretary-General, and the minutes did the Commission's Decision, must therefore not indicate the date on which they were similarly be dismissed as being inadmis- signed. sible.

22. The Commission considers this ground of appeal to be inadmissible. In arguing that the notified version of the Decision 25. The whole of the first ground of appeal was not annexed to the minutes the appel- must therefore be dismissed as being inad- lant is disputing that the version notified missible. I - 10948

KRUPP HOESCH v COMMISSION

B — The ground of appeal alleging that mation exchange system was classified in the Court of First Instance exceeded its the Commission Decision as a separate jurisdiction (second ground of appeal) infringement or as part of wider infringe- ments is not a question of law; it calls into question the assessment of fact made by the Court of First Instance. However, the 26. The appellant is not claiming that there Court has no jurisdiction to review this. has been a breach of Article 33 of the ECSC Treaty in its citation of the second ground of appeal, but in its reasoning on the first part of this ground of appeal.

29. The Commission submits in the alter- native that the ground of appeal is unfounded in this respect. The Court of Submissions of the parties First Instance had to examine the Commis- sion's Decision and not the explanations given by the Commission's agents in the judicial proceedings. It is apparent from recitals 266 to 271, 300 and 314 and from Article 1 of the Decision that participation 27. The appellant is submitting that the in the information exchange system is Court of First Instance was in breach of this mentioned separately alongside other provision, under which it only has jurisdic- infringements. tion to examine decisions relating to under- takings. In considering, in paragraph 122 of the judgment under appeal, that the information exchange system constituted a separate infringement, the Court of First Instance construed the Commission's Decision in a manner which did not correspond to the substance of the Appraisal Decision, according to the express state- ments by the Commission. The Court of First Instance thereby exceeded its jurisdic- tion to examine the disputed Decision under Article 33 of the ECSC Treaty since it does not have competence in an annul- ment action to alter the substance of a 30. Since the arguments put forward essen- Commission Decision. 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 first part of the second ground of appeal should be dis- missed as unfounded, to paragraph 89 et 28. The Commission considers this ground seq. of the Opinion that I am delivering of appeal inadmissible in this respect. The today in the aforementioned case. Those issue of whether participation in the infor- grounds apply mutatis mutandis.

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31. The first part of the second ground of on the assumption made therein that par- appeal, alleging that the Court of First ticipation in the information exchange Instance unlawfully exceeded its jurisdic- system constituted a separate infringement tion under Article 33 of the ECSC Treaty, is defective in law because the Court of must therefore be dismissed as being First Instance did not substantiate and unfounded. prove the alleged anti-competitive effect of the information exchange system as a separate infringement.

C — The grounds of appeal alleging that the assessment of the substantive legality of the Decision was defective in law 35. Where an information exchange system is deemed to constitute a separate breach of Article 65(1) of the ECSC Treaty, the 32. The appellant is alleging this infringe- restrictive effect on competition resulting ment of the Treaty in the second to fourth from the information exchange system parts of its second ground of appeal and in must follow from that system itself and, if the third ground of appeal. relevant, from the general market structure, but not from the connection between the information exchange system and an alleged price ring separate from it.

1. Whether participation in the information exchange system constituted a separate infringement of competition (second ground of appeal) 36. The view of the Court of First Instance (paragraphs 135 and 142 of the judgment under appeal) that the information 33. This issue is raised in the second part of exchange systems adversely affected the the second ground of appeal. participating producers' decision-making independence was, the appellant argues, defective in law. It was wrongly based on the case-law of the Court of First Instance in the so-called 'Tractor cases', 10 which is Submissions of the parties not relevant here. In principle, transparency resulting from such an exchange stimulates competition in a market characterised by competition. It is only where a market is not characterised by competition, particu- 34. The appellant initially takes issue with paragraph 122 of the judgment under 10 — Judgment in Case T-34/92 Fiatagri and New Holland Ford appeal. It argues that the judgment based v Commission [1994] ECR II-905.

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larly where its structure is characterised by the proceedings before the Court of First a narrow oligopoly, that it is possible for Instance. the decision-making independence of the undertakings concerned to be adversely affected.

40. Finally, the criticism levelled at refer- ence to the case-law in the Tractor cases is 37. The Court of First Instance erred in law unfounded. An information exchange sys- in assuming, without any reason, that the tem can have no effect on competition only structure of the market in beams was that if there is an atomisation of supply. There of a narrow oligopoly even though it had cannot be any question of this in the beams stated in paragraph 134 of its judgment market, where two thirds of apparent use is that the 10 largest undertakings held only attributable to 10 of the undertakings two thirds of the market share. Such a involved in the information exchange sys- market structure indicates strong compe- tem. tition among the many competitors and does, in any event, preclude the assumption of a simple oligopolistic structure.

41. The Court of First Instance did in this respect, in paragraphs 124 to 137 of the 38. The Commission submits that this judgment, set out in detail the reasoning on ground of appeal, its reasoning being which the anti-competitive nature of the couched in very general terms, is inadmis- information exchange system was based. sible in as much as it does not state which grounds of the judgment the appellant is challenging or on what legal argument it is based.

42. The Commission contends, with regard to the issue of alleged differences in market structures, that when the structure of the 39. The ground of appeal challenging the market in steel beams is compared with Court of First Instance finding as to the that of the tractor market in the United oligopolistic structure of the market in Kingdom, although the tractor market beams must, the Commission argues, be proves to be more concentrated, the lower rejected as inadmissible on the ground that level of concentration in the steel beams it questions the appraisal of facts by the market is counterbalanced by the products' Court of First Instance. Further, the appel- greater homogeneity, with the result thai- lant had itself already described the steel competition based on product character- beams market as an oligopolistic market in istics is limited.

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Appraisal Submissions of the parties

43. Since the arguments put forward essen- 46. The appellant submits that the Court of tially correspond to those presented by the First Instance was in breach of Article 65(1) appellant Thyssen Stahl AG in Case of the ECSC Treaty, particularly in para- C-194/99 P, I refer, in relation to the graphs 147 and 149 of the judgment under grounds on which the second part of the appeal, in assuming on the basis of a second ground of appeal should be dis- misconstruction of the elements of 'normal missed as being in part inadmissible and competition' that this had been adversely mainly unfounded, to paragraph 109 et affected by the information exchange sys- seq. of the Opinion that I am delivering tem. In doing so it failed to take cognisance today in the aforementioned case. Those of the fact that, from 1 July 1988 to 20 June grounds apply mutatis mutandis. 1990, 'normal competition' within the meaning of that provision was character- ised by a monitoring system operated by the Commission under which undertakings were obliged to provide the Commission with their joint forecasts of market par- ameters, which meant that they had to 44. The second part of the second ground discuss their individual data amongst them- of appeal, criticising the failure to rule that selves. the information exchange system did not constitute a separate issue under compe- tition law, must for those reasons be dismissed as being in part inadmissible and mainly unfounded.

47. The conduct of D G III, it claims, influenced 'normal competition' inasmuch as these measures were undertaken within the framework of the ECSC Treaty, as a result of which the initial competitive position differed. 2. The adverse effect which the information exchange system had on 'normal compe- tition' within the meaning of Article 65 of the ECSC Treaty (second ground of appeal)

48. The Court of First Instance erred in law in failing to recognise that this mode of conduct was essential to cooperation with 45. This issue is raised in the third part of the Commission — and in not then draw- the second ground of appeal. ing the necessary legal conclusions.

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49. In the opinion of the Commission the seq. of the Opinion that I am delivering question of whether the exchange of data today in the aforementioned case. on orders and deliveries was essential to cooperation with the Commission is an issue of fact and not of law. Hence, the ground of appeal is inadmissible in this respect. 52. The third part of the second ground of appeal, challenging the failure to rule that the information exchange system had an adverse effect on 'normal competition' within the meaning of Article 65 of the ECSC Treaty must for those reasons be 50. It submits, in the alternative, that the dismissed as being unfounded. judgment under appeal does not accept that an exchange of individual data on orders and deliveries was essential to cooperation with the Commission. In paragraphs 168 to 175 of the judgment under appeal the Court of First Instance stated that the undertakings had concealed the existence of the information exchange systems in question from the Commission. In arguing 3. The assessment of the appellant's de that the information exchange system of facto contribution to the information which the undertakings stand accused was exchange system (second ground of appeal) essential to cooperation with the Commis- sion, the appellant is contesting the finding and appraisal of facts by the Court of First Instance. 53. This issue is raised in the fourth part of the second ground of appeal.

Appraisal Submissions of the parlies

51. Since the arguments put forward essen- 54. The appellant takes issue with para- tially correspond to those presented by the graph 143 of the judgment under appeal, in appellant Thyssen Stahl AG in Case which the Court of First Instance came to C-194/99 P, I refer, in relation to the the conclusion that the appellant's partici- grounds on which the third part of the pation in the information exchange system second ground of appeal should be dis- was in breach of the competition rules even missed as unfounded, to paragraph 135 et though it could not have drawn any con-

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elusions about figures for the U sections 57. The Commission considers this argu- that it manufactures from the information ment to be inadmissible because it chal- exchanged as the information only related lenges the finding and appraisal of fact by to total tonnages for I, T and U sections. the Court of First Instance.

58. It argues, in the alternative, that this 55. An infringement of competition rules plea is unfounded. The fact that the appel- therefore lies, if at all, in participation in lant did not attend the meetings and the discussions based on the information discussions does not stop participation in exchange system in which, however, as the the information exchange system from Court of First Instance expressly states in being a restraint of competition. By par- paragraph 104 of the judgment under ticipating in the information exchange appeal, the appellant was not involved. system the appellant enabled the other undertakings to examine the extent to which it was itself keeping to traditional trade flows. In the end, a party that discloses information usually treated as confidential, thereby reducing the uncer- tainty that would otherwise exist amongst 56. The Court of First Instance should not other undertakings, is itself committing an have condemned the appellant for the fact infringement of the competition rules. Nor that the data supplied by it did at least does the appellant explain why it make it easier for the other undertakings to undoubtedly participated in the infor- review the market position. This, it claims, mation exchange system even though the constitutes 'citing third-party conduct' data that it received was allegedly unus- which cannot form the basis of an offence able. under competition law on the appellant's part. It would then be a case of liability for 'incitement or complicity', which lies out- side the scope of Article 65(1) of the ECSC Treaty. As there is no rule of Community law that extends liability beyond the elements of the offence punishable under Appraisal Article 65(1) of the ECSC Treaty to incite- ment or complicity, the Court of First Instance has failed to observe the principle of nullum crimen sine lege (no punishment without law) which is a general legal principle applicable also to criminal pro- 59. The appellant's plea contains two dif- ceedings in relation to administrative ferent arguments: firstly, it questions affairs and derived from Article 7 of the whether the Court of First Instance was European Convention for the Protection of right to consider that it had itself com- Human Rights and Fundamental Freedoms mitted an offence by participating in the (ECHR). information exchange system; secondly, it

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levels criticism at the Court of First reason to reduce the coefficient of the fine Instance for considering its participation for participating in the information to constitute, not an offence but just — as exchange system. 12 the appellant terms it — 'complicity' in the other participants' offences, and as such including it in the elements of the offence under Article 65(1) of the ECSC Treaty.

62. What the Court of First Instance was therefore actually saying was that the inclusion of the appellant's own statistics in the information exchange system at issue constitutes commission of an offence per se 60. First of all, the Commission's argument and it is therefore irrelevant whether the that this is an improper objection to a undertaking providing them also derived finding or appraisal of fact is refuted. The advantages from the information exchange appellant is not actually challenging the system output. conclusions to which the Court of First Instance came in relation to the advantages which it might have gained from participat- ing in the information exchange system.

63. There can be no objection to this viewpoint since it is in conformity with the grounds on which the Court has ruled participation in certain information exchange systems to be a separate anti- competitive act independent of classic 61. It should be noted with regard to the breaches of competition resulting there- appellant's commission of an offence that, from (such as price-fixing agreements or in paragraph 148, the Court of First market-sharing). In the judgments in the Instance, relying on its case-law in the Tractor cases 13 the Court ruled that such so-called Tractor cases, 11 considered the systems are anti-competitive because they very participation in the information dispense with an attribute of competition in exchange system in se to be a separate its ideal form, namely the risk of uncer- infringement of competition. In paragraph tainty. 14 Hence, an offence is committed 140 of the judgment under appeal it is also by anybody who disrupts the ideal of stated that 'the anti-competitive nature of 'undertakings uninformed of the commer- the exchange complained of... [lies] in the cial secrets of competitors' by participating nature of the information dispersed'. The in such an information exchange system. A Court of First Instance finally took the appellant's lack of participation in the discussions based on that information as 12 — Sec paragraph 205 et seq. of the judgment under appeal. 13 — ļudgiucnts in the respective appeals in Cases C-8/95 P Neu' Holland Foni v Commission | 1 9 9 8 | ECR 1-3175 and C-7/95 P John Deere v Commission 11998] ECR I-3111. 11 — J u d g m e n t s in Cases T-34/92 (cited in footnote 10) and 1 4 — See in more detail paragraph 118 et seq. of my Opinion in T-35/92 ¡olm Deere v Commission |1994] ECR 11-957. Thyssen Stahl v Commission (cited in footnote 7).

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breach of competition rules therefore lies duction of such a category would represent not only in the removal of its own cor- an infringement of Article 7 ECHR on responding uncertainty, but also in the fact unforeseeability grounds. 16 that such a system is fed data that is useful to others.

66. The fourth part of the second ground of appeal, criticising the ruling that the appel- 64. Paragraphs 140 and 143 of the judg- lant did actually take part in the infor- ment under appeal do not therefore war- mation exchange system, must for those rant the conclusion drawn by the appellant, reasons be dismissed as unfounded. namely that the Court of First Instance has here created a new category of competition law (liability under competition law in the case of accomplices who are not themselves perpetrators) 15 and has applied it to the case at issue. 4. The appellant's commission of an offence in relation to a price-fixing agree- ment for the German market (third ground of appeal) 65. Hence it is unnecessary to address the question of whether such a — 'new' — category would be covered by Article 65(5) of the ECSC Treaty. Nor is it necessary to Submissions of the parties address the question of whether the intro-

15 — In my view there is no need even at the present time to make a formal distinction between complicity and aiding and abetting under Community competition law. The Court of Justice actually allows a relatively wide appli- 67. The appellant makes reference to para- cation of competition law, for example, single infringe- ment in the form of a sequential link between phases of graph 162 of the judgment under appeal active conduct and passive participation (see the judgment in the Polypropylene cases, particularly Case C-235/92 P Montecatini v Commission [1999] ECR I-4539). In certain circumstances, therefore, complicity is established even in situations that, under the general criminal law of many 16 — See, for example, the ECHR judgment in S.W. v United Member States, would amount to the lesser offence of Kingdom, Series A, No 335/B, paragraph 36, where it is aiding and abetting. In the Community-law context, stated in a case in which there had been a change in therefore, although the dogma might differ, the end is still national case-law (the offence of rape within marriage was the same: a wide framework is provided for establishing acknowledged in 1990 although impunity had been complicity and the Commission can acknowledge the assumed since 1736): 'However clearly drafted a legal presence of different forms of involvement in an infringe- provision may be, in any system of law, including criminal ment of competition by reducing the 'gravity' of par- law, there is an inevitable element of judicial interpre- ticipation in the offence when determining the amount of tation. There will always be a need for elucidation of the fine to be imposed. The Court of First Instance also doubtful points and for adaptation to changing circum- found accordingly in paragraph 144 of the judgment under stances. Indeed,... the progressive development of the appeal, in which it is stated 'that although the applicant's criminal law through judicial law-making is a well special situation as a manufacturer of U sections with a entrenched and necessary part of legal tradition. Article 7 small quota of the Community market in beams can, in of the Convention cannot be read as outlawing the gradual certain circumstances, have an effect on how the gravity of clarification of the rules of criminal liability through the offence of which it is accused should be assessed, it judicial interpretation from case to case, provided that the does not in any way alter the assessment of the existence resultant development is consistent with the essence of the and nature of that offence.' offence and could reasonably be foreseen.'

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where the Court of First Instance, referring Appraisal to the remark quoted in paragraph 160 of the judgment under appeal, namely 'the other suppliers — primarily Hoesch — are first of all to abide by the agreed prices', states: 71. In the third ground of appeal the appellant is clearly challenging the apprais- al of fact 17 by the Court of First Instance in relation to the note quoted in paragraph 160 of the judgment under appeal. This cannot be the subject of an appeal — subject to examination of potential distor- 'In the present context that remark is tion. adequate legal proof of the fact that Tra- deARBED and Hoesch concluded a price- fixing agreement at a point in time prior to 18 April 1989.' 72. The third ground of appeal, challenging the finding of commission of an offence by the appellant in relation to a price-fixing agreement for the German market, must therefore be dismissed as inadmissible. 68. The Court of First Instance, it claims, has taken a simple file note as being proof of the existence of a breach of competition, without establishing the content or date of that agreement. D — The grounds of appeal relating to the fine

69. The Court of First Instance has there- 1. Inadequate consideration of the fault fore infringed the appellant's rights of principle (fourth ground of appeal) defence, Article 15 of the ECSC Treaty, the principle of certainty and its entitlement to reasonable protection of its rights. Submissions of the parties

73. The appellant alleges that the Court of 70. The Commission considers the plea to First Instance infringed Article 65(5) of the be inadmissible because the appellant is challenging the appraisal of established 17 — Sec also, regarding the distinguishing of findings of fact, facts without claiming that the finding of appraisal of facts and legai issnes on the interpretation of fact by the Court of First Instance was documents, paragraph 54 et seq. of my Opinion in Case C-194/99 P (cited in footnote 7), which I am also wrong or that the evidence was distorted. delivering today.

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OPINION OF MRS STIX-HACKL — CASE C-19J/99 P

ECSC Treaty and the fault principle in C-194/99 P, I refer, in relation to the overestimating the degree of fault attrib- grounds on which the fourth ground of utable to the appellant. It did not take appeal should be dismissed as unfounded, account, in particular, of the effect of the to paragraph 171 et seq. of the Opinion Commission's conduct as a result of which that I am delivering today in the afore- a degree of ambiguity was created with mentioned case. Those grounds apply regard to the scope of the concept of mutatis mutandis. n o r m a l c o m p e t i t i o n as used in Article 65(1) of the ECSC Treaty and, it claims, it was wrongly assumed in para- graph 149 of the judgment that the appel- lant had been aware of the full extent of the illegality of its conduct. The Court of First 76. The fourth ground of appeal, alleging Instance was consequently wrong in failing that inadequate attention was paid to the to take account of its genuine low level of fault principle, must therefore be dismissed awareness of the illegality in mitigation as being unfounded. when assessing the fine.

74. The Commission submits that the Court of First Instance stated, in para- graphs 101 to 103 of the judgment under 2. The absence of grounds explaining the appeal, that the appellant itself participated level of the fine (fifth ground of appeal) in the information exchange system. Fur- thermore, the information exchanged by the undertakings (summarised statistics) was not that supplied to the Commission Submissions of the parties but individualised data on orders and deliveries of which, as can be seen from paragraph 168 of the judgment under appeal, the Commission was unaware. There could not, the Commission con- tinues, be any question of ambiguity having 77. The appellant submits that the Court of been caused by the Commission. First Instance failed to take proper account of the requirement of a sufficient statement of reasons for the assessment of the fine and was therefore in breach of Article 15 of the ECSC Treaty. Appraisal

75. Since the arguments put forward essen- 78. In paragraph 196 of the judgment, the tially correspond to those presented by the appellant continues, the Court of First appellant Thyssen Stahl AG in Case Instance considers adequate reasons to I - 10958

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have been given in the Decision although, Appraisal according to the case-law of the Court of Justice, the statement of reasons for the assessment of the fine in a Commission Decision must enable the parties to deter- mine what specific criteria were applied in their case to the assessment of the fine and the manner in which this was done. This was not the case here. 81. First of all, it is agreed with the Commission that the paragraphs in the judgment under appeal with which the appellant takes issue are not contradictory.

79. The Court of First Instance also contra- dicted itself by ruling, in paragraphs 198 and 199 of the judgment under appeal, that it should be possible for the undertakings to find out how the fine has been calculated 82. The Court of First Instance stated in without having to take court action, whilst paragraph 198 et seq. of the judgment stating in paragraphs 200 and 201 that under appeal that disclosure of mathemat- information on the assessment of the fine ical formulae, where applied by the Com- did not form part of the reasoning. mission, is 'desirable'. Hence, the assump- tion made in paragraph 200 of the judg- ment under appeal, that such disclosure does not have to be made in the Decision itself and can be undertaken at a later stage in the judicial proceedings, does not amount to a contradiction.

80. The Commission contends that the Court of First Instance examined the rea- soning for the level of the fine in paragraph 197 of the judgment under appeal in particular. It does not consider the state- ments made by the Court of First Instance to be a contradiction in terms. Although 83. Since the arguments put forward also the Court of First Instance, in paragraph essentially correspond to those presented 198, described disclosure of the method of by the appellant Thyssen Stahl AG in Case calculating the fine in the Decision as C-194/99 P, I refer, in relation to the 'desirable', it was not mandatory. It was grounds on which the fifth ground of therefore entitled to assume that the Com- appeal should be dismissed as unfounded, mission had fulfilled its duty to state its to paragraph 217 et seq. of the Opinion reasons since all the criteria for deter- that I am delivering today in the afore- mination of the level of the fine were stated mentioned case. Those grounds apply in the Decision. mutatis mutandis.

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84. The fifth ground of appeal, alleging the time that final judgment is delivered. insufficiency of grounds explaining the After the elapse of such a period of time, a level of the fine, must for those reasons be decision will no longer affect the undertak- dismissed as being unfounded. ing in the form in which it was involved in the infringements, nor the staff actually involved; this resembles rather a denial of justice.

E — The ground of appeal alleging that the duration of the proceedings in the Court of First Instance amounted to a breach of the ECHR (sixth ground of 87. The Commission contends, firstly, that appeal) the appellant may, by its invocation of Article 6(1) of the ECHR, take issue only with the duration of the judicial proceed- ings, but not with that of the administrative procedure. However, the proceedings in the Submissions of the parties present case were not excessively lengthy in comparison with the proceedings in the Baustahlgewebe case. The reasonableness of the duration of proceedings must be assessed according to the circumstances applicable in each individual case and, in 85. The appellant submits that, by reason particular, according to the interests in of the excessive duration of almost five issue for the parties in the case, the com- years for the proceedings, the Court of First plexity of the case and the conduct of the Instance infringed its entitlement to pro- applicant and of the competent authorities. tection of its rights within a reasonable period of time. In the judgment in the Baustahlgewebe case 18 the Court of Justice considered a duration for proceedings of five years and six months to be unjustified.

88. In the present case, the Commission continues, the Commission imposed a fine of ECU 13 000 on the appellant, the 86. The proceedings must be considered in complexity of the case was due to the their entirety: the Court is being called on scope of the Commission's Decision and — in the present case to adjudge events which as is apparent from paragraphs 20 to 25 of already date back more than 10 years, and the judgment under appeal •— to the fact indeed will date back almost 15 years by that eleven applications were lodged in four different languages, with 65 files and almost 11 000 numbered documents. Deal- 18 — Judgment in Case C-185/95 P Baustahlgewebe v Commis- ing with the requests for inspection of the sion [1998] ECR I-8417. Commission's internal documentation I - 10960

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made by the appellant from the beginning appellant Thyssen Stahl AG in Case of 1995 also necessitated procedural meas- C-194/99 P, I refer, in relation to the ures by the Court of First Instance. In view grounds on which the sixth ground of of these circumstances there can be no appeal should be dismissed as unfounded, question of the duration of the judicial to paragraph 230 et seq. of the Opinion proceedings having been excessive. that I am delivering today in the afore- mentioned case. Those grounds apply mutatis mutandis.

Appraisal

90. The sixth ground of appeal, taking issue with the duration of the proceedings 89. Since the arguments put forward essen- before the Court of First Instance, must for tially correspond to those presented by the those reasons be dismissed as unfounded.

IV — Conclusion

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

— dismiss the appeal;

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

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