C-196/99

A — The wrongful composition of the Chamber (eighth ground of appeal) I-11018

B — The legally defective assessment of the question of the quorum when the Decision was adopted by the Commission (fourth ground of appeal) I-11019 C — The grounds of appeal alleging that the assessment of the substantive legality of the Decision was defective in law (first and second grounds of appeal) . . . I - 11021 1. The adverse effect of the conduct complained of in the Decision on 'normal competition' within the meaning of Article 65 of the ECSC Treaty (first ground of appeal) I - 11021

2. Whether participation in the information exchange system constituted a separate infringement of competition (first ground of appeal) I - 11023

3. The issue of alleged abuse of discretionary power by the Commission (second ground of appeal) I -11025

D — The grounds of appeal relating to the fine I - 11029

1. The absence of reasoning in the Decision explaining the level of the fine (third and fourth grounds of appeal) I -11029 2. The issue of joint and several liability with Siderúrgica Aristrain Olabcm'a SL (fifth ground of appeal) I-11031 3. Inadequate consideration of the fault principle (fifth ground of appeal) .. I-11036

I — Introduction 3. On 16 February 1994 the Commission 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 to a proceeding p u r s u a n t to Article 65 of the ECSC Treaty concerning agreements and concerted practices 1. The present case is an appeal brought engaged in by European producers of against the judgment delivered by the Court beams' (hereinafter 'the Decision'). 5 The of First Instance on 11 March 1999 in Case parties to which the Decision was T-156/94 ('the judgment under appeal'). 2 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, systems for the exchange of information and engaging in price-fixing and market sharing. The Commission imposed fines on 14 of the undertakings. In the case of 2. Reference is made to the judgment under S i d e r r g i c a Aristrain Madrid SL (here- appeal for the historical background to inafter the 'appellant') the Commission relations between the steel industry and the imposed a fine of ECU 10 600 000. Commission from 1970 to 1990, and in particular the rules adopted to deal with the m a n i f e s t crisis a n d C o m m i s s i o n Decision N o 2448/88/ECSC of 19 July 1988 introducing a surveillance system for certain products of undertakings in the steel industry ('Decision N o 2448/88'). 3 The 4. Several of the undertakings concerned, surveillance system established pursuant to including the appellant, together with the the said Decision expired on 30 June 1990 trade association, challenged the Decision and was replaced by an individual and before the Court of First Instance. The voluntary information scheme. 4 Court of First Instance ultimately reduced the fine to EUR 7 100 000 and dismissed the remainder of the action. 2 — Case T-156/94 Aristrain v Commission [1999] ECR II-645. 3 — OJ 1988 L 212, p. 1. 4 — See paragraph 33 of the judgment in Case T-141/94 Thyssen Stabl v Commission [1999] ECR II-347. 5 —OJ 1994 L 116, p. 1.

(1) set aside the judgment delivered on — errors of reasoning; 11 March 1999 by the Court of First Instance in Case T-156/94 having regard to all or any of the errors claimed and, both by way of an express ruling on substantive law and by refer- — inconsistency; ring the case back to the Court of First Instance, determine all of the legal consequences resulting from the setting aside of that judgment, and that it should, in particular: — infringement of the principles of equality and proportionality by expressing the fines in ecus; — set aside the judgment under appeal in so far as it found that the Decision was not in breach of Community law for misapplication and misinterpretation of Article 65 — failure to order the Commis- of the ECSC Treaty, and con- sion at first instance to pay all sequently annul the Decision on of the applicant's costs and that ground; interest resulting from the guarantee for the whole or part of the fine or from any payment thereof, so that the Court of First Instance should — decide the case in so far as the rule that the fine does not bear judgment stage has been reached interest until its judgment or, alternatively, refer the case becomes enforceable and

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OPINION OF MRS STIX-HACKL — CASE C-196/99 P

therefore order the Commis- (2) order the appellant to pay the costs of sion to pay the costs and inter- the proceedings. est incurred in respect of the guarantee for the fine or in respect of payment thereof;

7. According to its statement of appeal, the appellant invokes the following grounds of appeal; — similarly, in relation to the eighth and ninth grounds claimed in the proceedings;

Third ground of appeal Fifth ground of appeal

'Infringement of Community law due to the judgment of the Court of First Instance 'Infringement of Community law by the displaying a number of inconsistencies in its misapplication and misinterpretation of examination and appraisal of various argu- Article 15 of the ECSC Treaty with regard ments: to the absence of reasoning in the Decision explaining the fine.'

(a) firstly, with regard to joint and several liability because, since the fine was imposed only on Siderùrgica Aristrain Madrid, it also had to accept respon- sibility for the practices of its sister Fourth ground of appeal company;

(b) secondly, in relation to the aggravating factor — that is to say, knowledge of 'Infringement of Community law due to the the unlawful nature of the practices the judgment of the Court of First Instance not subject of complaint — and finally containing adequate reasoning in the fol- lowing respects:

(c) in relation to the date stipulated in the operative part of the Commission Decision from which the alleged infringements are imputed to Sider- (a) In a material point of the applicant's úrgica Aristrain Madrid.' claim concerning lack of capacity to adopt the Decision challenged.

Sixth ground of appeal

'Infringement of Community law resulting from a breach of Article 33 of the Rules of Procedure of the Court of First Instance and the guarantees under procedural law — the judgment under appeal was pro- due to the fact that only three of the five nounced by a Chamber with the wrong judges of which the Chamber was composition (eighth ground of appeal) composed at the hearing took part in the and deliberations of the Court of First Instance.'

the Court of First Instance breached Com- Ninth ground of appeal munity law in the judgment under appeal in that it:

'Infringement of Community law due to disregard for the applicant's entitlement to a fair decision within a reasonable period in •— erred in law in accepting the formal breach of Article 6 of the European Con- legality of the Decision, even though I-11016

ARISTRAIN v COMMISSION

the Decision had not been adopted in — omitted in the decision on costs to the proper manner (fourth ground of order the Commission to pay costs and appeal); interest arising from the lodgement of security or from any payment of the fine (seventh ground of appeal);

— erred in law in accepting the substan- tive legality of the Decision, even though — contrary to Article 6 of the ECHR, failed to vindicate the appellant's rights within a reasonable period (ninth ground of appeal). the practices complained of in the Decision could not have had a detri- mental effect on 'normal competition' within the meaning of Article 65 of the ECSC Treaty (first ground of appeal) and 9. The examination which follows will base itself around this summary. The grounds of appeal put forward by the appellant and the subdivisions and argu- ments contained therein, together with the no breach of Article 65(1) of the ECSC Commission's arguments, will be set out Treaty had been committed because under these individual points. p a r t i c i p a t i o n in the i n f o r m a t i o n exchange system did not constitute a separate infringement of competition (first ground of appeal) and

11. The appellant takes issue with paragraph 77 of the judgment under appeal. 15. The Commission takes the view that Article 32 of the Rules of Procedure, referred to in paragraph 77 of the judg- ment, is significant in as much as Chambers 12. It is alleging that the judgment under must consist of the number of judges appeal was signed by only three judges. It required, namely three, and this was in fact does not bear the signature of the judge the case. who had, in any event, been President of the Chamber until the oral proceedings came to a close, nor does it bear the signature of another judge who was also present during the oral proceedings. 16. It contends that the appellant is mis- interpreting Article 33 of the Rules of Procedure. This provision is not infringed if not all of the judges who were present at 13. In so far as the Court of First Instance the oral proceedings are able to take part in in the judgment under appeal based its the deliberations; it is only infringed if procedure on Article 32(1) of the Rules of judges who were not present at the oral Procedure of the Court of First Instance proceedings take part in the deliberations. (hereinafter, the 'Rules of Procedure'), it disregarded the fact that the ending of a term of office of a judge on a rotational basis is not one of the instances stipulated in Article 32(1) of the Rules of Procedure. The Court of First Instance could have 17. Finally, the Commission notes, if it had foreseen that certain judges would not be been foreseeable that two judges would not able to participate in the deliberations be able to be present during the deliber- because their terms of office had expired; ations, objection should have been raised it should therefore have changed the com- during the oral proceedings or at the position of the Chamber. hearing in January 1998. I-11018

23. The appellant takes issue with 7 —Case T-305/94 to T-307/94, T-313/94 to T-316/94, paragraph 186 et seq. of the judgment T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others v Commission under appeal. It submits that the Court of | 1 9 9 9 | ECR II-931. First Instance misconstrued the minutes of 8 — This question was left open in the judgment m Ptersack v Belguim (l Octoher 1982, Series Λ. No 5 3 , p. 16, Commission session 1189 on 16 February paragraph 33) and in the Pfeifer and Plankl v Austria ludgnient (25 February 1992, Series Λ N o 227, paragraph 35 1994 and consequently concluded — et scq.) the European Court of Human Rights ruled only incorrectly — that the requisite quorum that the composition of the court must satisfy statutory requirements. It was held in the Deumeland v Germany judgment (29 May 1986, Series Λ N o 100, paragraph 81 et scq.) that 'the change of judges represents a natural part of the life of a court'. 9 — Paragraph 84 et seq.

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of Commission Members had been present Appraisal when the Decision was adopted. In doing so, the Court of First Instance breached Article 13 of the ECSC Treaty and Articles 5 and 8 of the Commission's Rules of Procedure.

27. Since the arguments put forward essen- tially correspond to those presented by the appellant Thyssen Stahl in Case C-194/99 P, I refer, in relation to the grounds on which the first part of the fourth ground of 24. Since the minutes were not unambigu- appeal should be dismissed as being inad- ous with regard to the presence of certain missible, to paragraph 52 et seq. of the Commissioners when the Decision was Opinion that I am delivering today in the adopted, the Court of First Instance should aforementioned case. Those grounds apply have undertaken a further examination sua mutatis mutandis. sponte or at least have given its reasons for refusing the appellant's application for further evidence to be taken.

33. In the first part of the first ground of appeal the appellant takes issue with the fact that, in its opinion, the Court of First Instance failed to appreciate that the provi- 31. The first ground of appeal consists of sions of Article 85 of the EC Treaty (now two parts. In the first part the appellant Article 81 EC) and the provisions of challenges the alleged failure to rule that Article 65(1) of the ECSC Treaty arc the practices complained of in the Decision different. It does not deny that the prohib- did not have an adverse effect on 'normal ition on 'agreements... and concerted prac- competition' within the meaning of tices' in the EC Treaty and on 'agree- Article 65(1) of the ECSC Treaty. In the ments... and... concerted practices' in the second part, the appellant takes issue with ECSC Treaty generally have the same the assumption by the Court of First meaning and that the aim pursued is Instance that participation in the infor- ultimately the same. mation exchange system constituted a sep- arate infringement of competition law.

34. However, the economic and normative contexts of the two treaties are not the same. An adverse effect on 'normal compe- 32. In the second ground of appeal the tition' is necessary for there to be an appellant challenges the alleged failure to infringement of Article 65(1) of the ECSC rule that the Commission committed an Treaty. This is distinguishable, however, abuse of its discretionary power with from the competition afforded protection regard to the question of whether a fine under Article 85 of the EC Treaty (now should be imposed for infringements of the Article 81 EC) so that the interpretation of competition rules (Article 65(5) of the the EC Treaty does not apply as it stands to ECSC Treaty). the ECSC Treaty.

35. The problem that manifests itself here between prices on that market. This was is that the meetings within the framework also confirmed by the testimony of wit- of the Poutrelles Committee, which were nesses. taken in the reasoning of the Decision as the basis for various infringements of the competition rules, took place at the insti- gation of the Commission and were also supervised by it. 38. The assumption made by the Court of First Instance, that parallel prices neces- sarily signified the existence of an agree- ment in restraint of competition or con- certed practices, is mistaken in the context of the ECSC Treaty. Even the Court of First Instance itself accepted this view of the law 36. As can be seen, in particular, from the in finding, in paragraphs 606 to 623, that witness statements made by the staff of D G the fine imposed on the appellant for the III, the Commission had been informed that various agreements and concerted practices the people attending those meetings would should be reduced by 15% for that very be exchanging views and opinions on price reason. trends and future tendencies in the product markets concerned and they had even made known their individual intentions in that respect. What was being fostered, the appellant continues, corresponds to what the Commission understood to be a 'car- 39. In the opinion of the Commission the tel' — that is to say, a permanent arrange- argument that an infringement of Article 65 ment between the parties the principal aim of the ECSC Treaty (safeguarding 'normal of which was to achieve equilibrium competition') should be distinguished from between supply and demand and harmon- a breach of Article 85 of the EC Treaty isation of prices. (now Article 81 EC) because of measures by the Commission for which provision was made in the ECSC Treaty, is quite without foundation. The Commission refers to the statements made by the Court of First Instance in paragraphs 316 to 320 and 323 to 331. 37. The Court of First Instance also mis- applied and misinterpreted Article 65 of the ECSC Treaty, the appellant continues, in wrongly using the criteria applicable to Article 85 of the EC Treaty even though the It takes the view that the Court of First steel market that was relevant here dis- Instance gave sufficient reasons for the played special characteristics. Because of prohibition on price-fixing within the the abundance of information accessible to meaning of Article 65 of the ECSC Treaty all, the outstanding feature of that market and for the fact that Article 60 of the ECSC was its great transparency; in a favourable Treaty did not preclude the application of economy there was a natural parallelism Article 65 of the ECSC Treaty. I-11022

45. The appellant takes the view that the Court of First Instance wrongly assumed Appraisal that the Decision was lawful in as much as the assumption was made there that par- ticipation in the information exchange system constituted a separate breach of 43. Since the arguments put forward by the competition law that was independent of appellant essentially correspond to those the other infringements.

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OPINION OF MRS STIX-HACKL — CASE C-196/99 P

52. Since, when considered in this light, the arguments put forward essentially cor- respond to those presented by the appellant 49. It argues that the plea is also without Thyssen Stahl in Case C-194/99 P, I refer, foundation because the Court of First in relation to the grounds on which the Instance was interpreting the Decision of second part of the first ground of appeal the Commission and not the statements should be dismissed as unfounded, to made by its representatives at the hearing. paragraph 89 et seq. of the Opinion that I I - 11024

ARISTRAlN v COMMISSION

am delivering today in the aforementioned general, that is to say even irrespective of case. Those grounds apply mutatis mutan- the statements made by the Commission's dis. agents in the proceedings before the Court of First Instance, the alleged failure to rule that the information exchange system did not constitute a separate issue under com- petition law. 53. The second part of the first ground of appeal, in so far as it alleges that the Court of First Instance exceeded its jurisdiction, must therefore be dismissed as unfounded.

3. The issue of alleged abuse of discretion- ary power by the Commission (second 54. If the Court should also be able to infer ground of appeal) from the appellant's arguments a criticism of the substantive-law appraisal of partici- pation in the information exchange system, the arguments put forward by the appel- lant, considered in that light, also essen- Submissions of the parties tially correspond to those presented by the appellant Thyssen Stabl in Case C-194/99 P.

62. In reliance upon the judgment of the Court in the case of UFEX v Commission 11 the appellant levels criticism at the Court of 59. In the statement made by the Member First Instance for erring in law in limiting of the Commission, M r Van Miert, at the its examination of the reasons for the press conference on 16 February 1994 he charge of abuse of discretionary power to categorised the fine imposed as 'exem- the documentation contained in the files — plary', thereby mentioning the possibility which were submitted to the Court of First of account not just having been taken, Instance by the Commission — in view of when setting the fines, of circumstances the aforementioned abundance of indi- that were closely connected with the pro- cations, and in not considering it necessary cedure concerning the markets for steel to carry out any further investigation to beams. This was an indication that the fines substantiate those indications even though might possibly have proved higher because the files contained documentation that of the suspended investigations into the could, at least, have given rise to reasonable markets for wide strip steel. doubts.

60. As the Court of First Instance itself 63. The Commission considers this ground established in paragraph 4 of the judgment of appeal to be inadmissible because the under appeal, this had a particular effect on appellant is just repeating the same alle- the appellant because it only produces steel gations that were made at first instance. beams.

64. N o r is this ground of appeal well founded as the Court of First Instance set 61. Finally, the breakdown of negotiations out its detailed reasoning for its decision in between the Commission and the under- paragraph 529 et seq. of the judgment takings in the Community steel sector with under appeal. regard to settling their differences on the economic restructuring of the steel markets on the day before the disputed Decision 11 — Case C-119/97 P [1999] ECR 1-1341.

Appraisal 68. The arguments of the Commission must also be accepted in as much as the appellant has already complained in sub- stance of abuse of discretionary power in the proceedings in the Court of First Instance, setting out in its reasoning the same arguments as in the present proceed- ings. 66. With regard, firstly, to the appellant's general criticism that in view of the abun- dance of indications the Court of First Instance should not have confined its investigation to the files submitted by the Commission, I share the view of the Com- mission that reliance upon the judgment in the UFEX case 12 is mistaken. The problem 69. The remark by the Member of the in that case was somewhat different: the Commission, Mr Van Miert, as to the Court of First Instance there had dismissed 'exemplary' significance of the fines, the the claim of abuse of discretionary power close connection time-wise with the break- on the grounds that the applicant in that down of negotiations on the restructuring case had not adduced evidence of an abuse of Community steel markets and the con- of discretionary power even though it had nection with suspension of the investigation applied for a letter to be produced for that into restraints of competition in relation to purpose, had stated the author, the the markets for wide strip steel have addressee and date of that letter and the already been mentioned in the proceedings Court of First Instance had not granted that in the Court of First Instance as indications application. of an abuse of discretionary power. The appellant has not put forward any other arguments in this respect as justification for 12 — Cited in footnote 11 (paragraph 111). its second ground of appeal.

74. In the present case the grounds that the 71. The appellant's criticism must be Court of First Instance gave for dismissing accepted, however, in as much as the Court the allegation of abuse of discretionary of First Instance did not, in paragraph 526 power similarly apply to the specific alle- et seq. of the judgment under appeal, gation made by the appellant. examine all of the arguments put forward. The grounds of the judgment here are confined to the aspect of the close con- nection in time with the breakdown of the negotiations on the restructuring of the Community steel markets. This aspect 75. The fact that the Member of the concerned all of the undertakings affected Commission responsible called the amount by the Decision. of the fine in the Decision 'exemplary' at a press conference is not in itself grounds, even in the light of the simultaneous suspension of other competition-law inves- tigations, for suspecting an abuse of dis- cretionary power by the Commission since 72. The alleged connection between the the term 'exemplary' can be interpreted in amount of the fines in the Decision and the several ways and does not just mean that it suspended investigations into restraints of is intended to penalise restraints of compe- competition in relation to the markets for tition on other steel markets. wide strip steel was an aspect of major concern to the appellant, however, as it only produces steel beams and does not produce any wide strip steel products. The appellant is therefore correct in its com- plaint that the grounds of the judgment do 76. The second ground of appeal must not deal with its individual allegation of therefore be dismissed as unfounded in this alleged abuse of discretionary power. respect.

78. In its third ground of appeal, the second part of the fourth ground of appeal, the fifth ground of appeal and the sixth ground of appeal, the appellant alleges a 81. It refers, in particular, to the case-law number of infringements of the ECSC of the Court of First Instance in the Treaty relating to the fine. Tréfilunion case. 1 5In paragraph 557 of the judgment under appeal the Court of First Instance relied on this and said that it was desirable for the undertakings to know all the details of the method of calculation ('detalladamente') 'without having to com- mence judicial proceedings against the 1. The absence of reasoning in the Decision decisions for that purpose'. According to explaining the level of the fine (third and the statements made by the Court of First fourth grounds of appeal) Instance in paragraph 558 of the judgment under appeal, this 'certainly applies where the Commission — as in this case — has used precise mathematical formulae to 79. In its third ground of appeal and the calculate the fines'. second part of the fourth ground of appeal the appellant takes issue with the alleged failure to recognise the absence of grounds in the Decision.

82. In paragraph 555 of the judgment under appeal the Court of First Instance nevertheless ruled that the reasoning in the Submissions of the parties Commission Decision had been adequate in that respect even though the precise method of calculation had not been disclosed until an application had been made in the proceedings in the Court of First Instance. 80. In the third ground of appeal the appellant takes issue with paragraph 553 15 —Case T-148/89 Tréfilunion v Commission [1995]F.CR et seq. of the judgment under appeal and II-1063.

86. In the opinion of the Commission the appellant is misconstruing the judgment of the Court of Justice [sic] in the Tréfilunion case 16 in relation to disclosure of the 89. Furthermore, this ground of appeal is calculation of fines. The Court of First not well founded as the findings of the Instance was correct in its view that Court of First Instance in this respect did adequate reasons had been given for the conform to Community law. amount of the fine; it did, however, give 17 — Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and 16 — Cited in footnote 15. Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3).

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ARISTRAIN v COMMISSION

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OPINION OF MRS STIX-HACKL — CASE C-196/99 P

appellant and Aristrain Olaberria jointly liability of a group parent company for its and severally liable for the fine, nor for the subsidiary's acts in restraint of competition. fact that, out of the two undertakings, it only pursued the appellant.

100. The Commission takes the view that, 97. In paragraphs 141 and 143 of the in holding that the two sister companies are judgment under appeal the Court of First jointly and severally liable for the acts of Instance did instead retrospectively state the group, the Court of First Instance has the grounds for joint and several liability, not added anything to what was said by the together with the reasoning and justifi- Commission, namely that the two under- cation for liability being specifically tar- takings formed part of the same group and geted at the appellant. In doing so, the were one 'economic unit'. The Commission Court of First Instance was attempting to has always taken this view of the law and remedy an error or omission by the Com- the Court of First Instance merely went mission by substituting its assessment for along with it. the assessment of the Commission. The appellant considers that the Court of First Instance therefore exceeded the scope of its powers as it is only entitled to annul a decision of the Commission and not to rectify it. 101. Furthermore, the statements made by t h e C o u r t of F i r s t I n s t a n c e i n paragraphs 135 to 143 of the judgment under appeal are not contrary to Commu- nity law. The Court of First Instance 98. The appellant also takes issue with the properly referred to the case-law of the assumption by the Court of First Instance Court of Justice with regard to the term that, because of the fact that the two sister ' u n d e r t a k i n g ' w i t h i n the m e a n i n g of companies represented one economic unit Article 65 of the ECSC Treaty and took and therefore came within the term 'under- into account the special feature of this case, taking', the Commission acted lawfully in namely that there was no 'holding company imposing on one of them, by way of a in the traditional meaning of the term'. random decision, the fine that was levied jointly against both of them.

106. However, the appellant also takes substantive issue with the comments made by the Court of First Instance regarding the 104. Although it is true that nowhere in the legality of the joint and several liability of Decision is any express mention made of both subsidiaries and the choice of the joint and several liability, this does not appellant as the sole addressee of the mean that the Court of First Instance added Decision. that legal concept to the Decision. In paragraph 131 et seq. of the judgment under appeal the Court of First Instance carried out a detailed analysis of the Decision with regard to the mention made of the appellant and Aristrain Olaberria and the reference to them both jointly as 107. The Court of First Instance also 'Aristrain'. The conclusion reached from initially — and in my o p i n i o n cor- that analysis was that the Commission had rectly — applied the principles developed assumed in the Decision that both under- by case-law relating to the term 'undertak- takings were jointly and severally liable. ing' within the meaning of Community The Court of First Instance also finds that competition law (in this case Article 65(1) the Commission pronounced on liability of the ECSC Treaty) to a situation which for a fine the amount of which was was not that of a parent/subsidiary rela- calculated on the basis of the combined tionship within a group but a special turnover of both undertakings. That analy- situation in which two subsidiaries of a sis finally shows that the Commission group jointly agreed between themselves to wished to pursue a claim against one of commit certain offences in restraint of two joint debtors, namely the appellant, competition without it being possible to

109. The appellant is really taking issue with the conclusion drawn from this, 112. In the case under appeal — as the namely that, because they form one econ- C o u r t of First Instance ruled in omic unit, Aristrain Olaberria and the paragraph 134 et seq. of the judgment appellant are to be held jointly and sev- under appeal — the appellant and Aris- erally liable for a fine that is calculated on train Olaberria acted in the anti-competi- the basis of the combined turnovers of tive practices complained of in their mutual sister companies. The Court of First interests, that is to say 'on behalf of and in Instance relied in this respect on the case- the interest of' the other company. The fact law of the Court of Justice in the ICI case 19 that there was no ascertainable parent and transposed those principles to the company that coordinated or shaped the circumstances in this case. practices by the two companies in any way cannot affect the legal assessment. The case-law of the Court of Justice does not reveal whether there has to be vertical influence or whether unilateral influence is required. What is relevant, in fact, is just 110. As the appellant has rightly estab- that such influence did take place and that lished, the circumstances in the case cited it was exerted in the interests of the were such that a claim was only being targeted at the group parent company for 20 — Case C-294/98 P Metsä-Serla and Others v Commission [2000] ECR I-10065, at paragraph 26. The judgment 18 — Case 48/69 ICI v Commission [1972J ECR 619. relates to the Decision of the Commission of 13 July 1994 in proceedings under Article 85 of the EC Treaty 19 — Cited in footnote 18. (IV/C/33.833 — Cartonboard) (OJ 1994 L 243, p. 1).

118. Furthermore, as a result of only the appellant being named as the addressee in Article 6 of the Decision it is made the sole 115. In paragraph 143 of the judgment debtor. The Decision, as an instrument under appeal the Court of First Instance enforceable under Article 92 of the ĽCSC simply states that it was not an 'illegality' Treaty, can therefore only be enforced for the Commission to 'merely deprive against the appellant. If, in the event of itself of a debtor, in the person of the latter enforcement proceedings being brought company, with joint and several liability'. against it, the appellant should wish to have recourse 2 1 against Aristrain Olabcr- ria, there would be a risk of the respondent in those proceedings — properly — being able to rely on the fact that Article 6 of the Decision, which shows the parties to whom it was addressed, gives the appellant as the 116. I consider that this reasoning fails to address the concept of joint and several liability and gives unilateral consideration 21 — In the case of actions for recourse as a result of ionit and several liability a judgmeilt debtor would have to rely on to the interests of the Commission alone. the national law applicable.

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OPINION OF MRS STIX-HACKL — CASE C-196/99 P

22 — Not even the threatened insolvency of a joint debtor — which was evidently not the case here — would necess- arily mean that such procedure was essential because in the event of joint and several liability all of the joint debtors would be liable for the debt so that there would be a 124. The appellant takes issue with solvent debtor for the whole of the fine at the enforcement paragraph 627 et seq. of the judgment stage in any event. In its decision on the 'Cartonboard' cases (cited in footnote 20) the Commission — a few months after the Decision in this case — listed all of the under appeal confirming the finding in joint debtors as addressees in the operative part of the paragraph 305 et seq. of the Decision that decision. all of the addressees of the Decision must I - 11036

MUSTRAIN v COMMISSION

2 3 — Commission Decision of 18 July 1990 relating ro a proceeding under Article 65 of the ECSC Treaty concern- 130. The second part of the fifth ground of ing an agreement and concerted practices engaged in by European producers of cold-rolled stainless steel flat appeal must therefore be dismissed as products (90/417/ECSC) (OJ 1990 L 220, p. 28). inadmissible.

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OPINION OF MRS STIX-HACKL — CASE C-196/99 P

4. Assessment of the date with reference to 134. It also accuses the Court of First which the anti-competitive practices are Instance of inconsistent grounds in its imputed to the appellant (fifth ground of judgment as it referred in support of its appeal) assumption to the German and English versions of the Decision in which the date is, in the opinion of the Court of First Instance, correctly given as '31 December 1988'. However, these versions of the 131. In the third part of the fifth ground of wording of the Decision were not in the appeal the appellant takes issue with the language of the proceedings as far as the ruling upholding the Decision in relation to appellant was concerned. calculation from a certain date.

Appraisal Instance docs not, when stating the reasons for its view that this was a transcription error, confine itself to making a compari- son with language versions that were not in the appellant's procedural language. The Court of First Instance is principally relying 137. It should be mentioned with regard to on other parts of the Decision — which the criticism by the appellant of the issue are the same in all the language versions — concerning the material nature of a clerical overall consideration of which shows that error in the operative part of the Decision there was a transcription error in Article 4 that the Court of First Instance properly of the Decision. refers in the paragraph of the judgment under appeal complained of to the case-law of the Court of Justice, 24 according to which clerical errors are immaterial if the context and the aims pursued by legislation support an interpretation that differs from the wording.

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5. The calculation of the fine in ecus (sixth one fine that is imposed is higher than ground of appeal) another.

Submissions of the parties 145. Hence, there are no objective reasons justifying use of a system that discriminates against undertakings whose national cur- rencies have been devalued during the course of the reference years. The Court 142. The appellant takes issue with the fact of First Instance has therefore infringed that in paragraph 659 et seq. the Court of natural justice by ratifying the choice that First Instance considered it irreproachable the Commission made from the various in law for payment of the fine to be methods of calculation. imposed on the applicant in ecus under Article 1 of the Decision.

146. N o r did the Court of First Instance take account of the fact that the date of payment of the fine would differ from the 143. This meant that the level of the fine date on which the amount was fixed. payable would be determined on the basis of the relevant turnover at the average rate of exchange for the reference year whereas, if the fine had been payable in national currency, it would have been paid at the rate of exchange that applied on the day 147. The Commission takes the view that before payment was made. this ground of appeal is unfounded and that the appellant has not suggested any prac- ticable alternative method.

144. The appellant argues that the Court of First Instance erred in law in stating that the Commission has to convert the various 148. It argues that it is logical to take as the turnover figures notified to it into one basis the turnover and rate of exchange for uniform currency in order to be able to the year of the infringement since that compare them. It is quite possible to actually reflects the significance of the establish just from the percentage applied infringement in the context at the time to turnover, determined according to the and enables expression to be given with length of the infringement and the individ- great accuracy to all and any advantages ual undertaking's involvement in infringe- that might have resulted from the infringe- ments of the competition rules, whether ment.

151. In paragraph 87 et seq. of its judg- ment in the Sarrio 26 case, in relation to the same problem (but based on infringements of competition rules within the scope of the EC Treaty, that is to say in relation to Lastly, as regards, in particular, monetary Council Regulation N o 17 27) the Court of fluctuations, they are an element of chance Justice ruled: which may produce advantages and dis- advantages which the undertakings have to deal with regularly in the course of their business activities and whose very existence is not such as to render inappropriate the amount of a fine lawfully fixed by reference 'In the present case, the appellant has not to the gravity of the infringement and the shown how the Court of First Instance, in turnover achieved during the last year of not calling in question the Commission's the period over which it was committed. In any event, the maximum amount of the fine, determined by virtue of Article 15(2) 26 — Case C-291/98 P Sarrió v Commission | 2 0 0 0 | ECR I-9991. The judgment relates to the Commission Decision of of Regulation No 17 by reference to turn- 13 July 1994 relating to a proceeding under Article 85 of the EC Treaty (IV/C/33.833 — Cartonhoard) (OJ 1994 over in the business year preceding the L 243, p. 1). adoption of the Decision, limits the pos- 27 — Council Regulation of 21 February 1962: First Regulation sible harmful consequences of monetary implementing Articles 85 and 86 of the Treaty (OJ English Special Edition, 1959-1962, p. 87). fluctuations.'

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155. It bases its claim, allegedly misjudged 158. The Commission also contends that, by the Court of First Instance, on the whilst it generally accepts a bank guarantee following: where the final nature of a in order to avoid enforcement of a fine I-11042

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during the course of proceedings before the in fact, show that the application that the Court of First Instance, this does not alter appellant considers to have been the subject the fact that the Decision is an enforceable of an error of law on the part of the Court instrument under Article 92 of the ECSC of First Instance — that is to say, the Treaty and that proceedings issued in the application asking for the Commission to Court of Justice under Article 39 of the be ordered under Article 91 of the Rules of ECSC Treaty do not have suspensory effect. Procedure to pay costs and interest arising If fines were not to bear interest until from lodging security or making any pay- confirmed by the Court of First Instance, ment of a fine — formed any part of the Article 39 would be a rule without sub- proceedings before the Court of First stance; this would also lead to judicial Instance. proceedings being commenced simply in order to delay payment of a fine.

159. Finally, the Commission refers to paragraphs 111 to 118 of the judgment 162. The paragraph quoted only shows under appeal, in which the Court of First that the appellant applied for the Commis- Instance expressed its opinion on the sion to be ordered to bear the 'costs alleged infringement of Article 6 of the incurred during the administrative pro- ECHR and on unlimited jurisdiction and its cedure' under Article 87(3) of the Rules of significance. Procedure or Article 34 of the ECSC Treaty. 'Costs and interest arising from lodging security or making any payment of a fine' are, however, costs that only arise as a result of the Decision, that is to say at a Appraisal later date, so that they cannot in any event be costs incurred during the administrative procedure.

168. The issue that therefore arises is whether the appellant has raised the wrong ground of appeal since if the judgment 165. In the Alexopoulou case 2 9 the Court under appeal (as established) does not of Justice evidently considered it possible in make any mention at all of the applications law, with regard to the issue of determining made by the appellant in the proceedings whether a plea has already been the subject before the Court of First Instance it will of proceedings before the Court of First hardly be possible for the Court of Justice Instance, to refer back sua sponte to the to review the substantive validity of its files in the Court of First Instance in the assessment of that specific costs issue. event of doubt even though — as in this case — the appellant has not relied on the files in those proceedings despite its assumed awareness of a possible loophole in the judgment of the Court of First Instance. 169. However, it would seem to be the case that if the appellant had raised the proper ground of appeal (infringement of the rule that judgments should state the reasons on which they are based, Article 30 of the ECSC Statute) that ground of appeal would have been well founded. In that eventuality 166. As can be seen from point VI of the the Court of Justice would have to quash application in the proceedings before the paragraph 717 of the judgment under Court of First Instance, the criticism relat- appeal for inadequate reasoning pursuant ing to the costs and interest arising from to the first sentence of Article 54 of the lodging security or making any payment of ECSC Statute and refer the case back to the a fine is not an issue that is raised for the Court of First Instance pursuant to the first time in the appeal proceedings, so that second sentence. In the event of the appli- the seventh ground of appeal would appear cation then being refused by the Court of to be admissible to this extent. First Instance the Court of Justice would have to review the appraisal by the Court of First Instance during the course of any 29 — Case C-155/98 P Alexopoulou v Commission [1999] ECR 1-4069. second appeal proceedings.

172. The Court of Justice has already ruled in the order in the Krupp case, 30 in relation to the costs incurred when lodging security, that 'expenses... in providing a bank guar- antee... cannot be regarded as expenses incurred "for the purpose of the proceed- 174. The appellant's argument would ings" within the meaning of the abovemen- therefore not really appear to be question- tioned provision. 31 The fact that the put- ing the Commission's fundamental entitle- ting-up of the guarantee was one of the two ment to interest where fines are not paid. The argument is evidently directed at entitlement to interest on that part of the 30 — Order of the Court of Justice in Case 183/83 Krupp v fine that was reduced by the Court of First Commission [1987] ECR 4 6 1 1 , at paragraph 10. 31 — As the order was pronounced before the Court of First Instance in the judgment under appeal or at Instance was set up the provision in question was the identically worded Article 73(h) of the Rules of Procedure the corresponding proportion of the cost of of the Court of Justice. providing a bank guarantee so that execu-

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tion of the Decision could be temporarily F — The ground of appeal alleging that avoided. the duration of the proceedings amounted to a breach of Article 6 of the ECHR (ninth ground of appeal)

Submissions of the parties

175. Since the arguments put forward by the appellant have not been couched in these terms, however, I refer on this 177. The appellant invokes the judgment of problem in general to the statements made the Court of Justice in the Baustahlgewebe by the Court of First Instance in case. 33 It takes the view that the judicial paragraph 697 of the judgment in the proceedings that lasted more than five years parallel case of British Steel. 32 and were preceded by three years of administrative procedure before the Com- mission have delayed pronouncement of a decision in the case to such an extent that a violation of Article 6 of the ECHR has been committed.

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ECSC Statute and two orders by the Court rights within a reasonable time, there is no of First Instance 34 to send all documents in need to go any further into the question of the case to the Court of First Instance, to whether the consequence of such a failure examine all of the documents and ascertain might also encompass loss of entitlement to those that could be forwarded to the interest for the duration of the proceedings applicants. before the Court of First Instance. 35

181. The Court of First Instance also sub- jected the documents and correspondence 184. The ninth ground of appeal, criticising to an in-depth examination of this kind at the duration of the proceedings, must the applicants' instigation. therefore be dismissed as unfounded.

Appraisal

IV — Costs

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V — Conclusion

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

— set aside the judgment of the Court of First Instance of 11 March 1999 in Case T-156/94 Aristrain v Commission in so far as it rules that the imposition of a fine on Siderùrgica Aristrain Madrid SL alone was valid;

— declare void Articles 4 and 6 of the Commission Decision 94/215/ECSC of 16 February 1994 relating to a proceeding pursuant to Article 65 of the ECSC Treaty concerning agreements and concerted practices engaged in by European producers of beams in so far as out of two jointly liable undertakings mention is only made therein of Siderùrgica Aristrain Madrid SL;