C-199/99

A — The grounds of appeal alleging a legally defective assessment of the formal validity of the Decision 1-11187

1. The infringement of procedural rights by the Commission (fourth ground of appeal) 1-11187

(a) The question of the right of access to documents in general 1-11192

(b)The question of incomplete appraisal of the argument in relation to access to general information 1-11193 (c) The question of the power to decide on the need to grant access to documents in order to safeguard the rights of the defence 1-11195

(d)The issue of the Commission's duties in relation to official investigations 1-11195

(e) The possibility of remedying the Commission's procedural errors . . . . 1-11195

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C — The ground of appeal alleging that inadequate reasons were given for the fine (fifth ground of appeal) I - 11207 D—The ground of appeal alleging infringements of the ECHR (first ground of appeal) I - 11209 1. Fair hearing (equality of arms, examination of witnesses) I-11214 2. The duration of the proceedings I - 11218 IV — Conclusion I- 11219

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the Court of First Instance. The Court of (4) order interest to be paid by the Com- First Instance ultimately reduced the fine to mission on such part of the fine as is EUR 20 .000 000 and dismissed the repaid under (2) or (3) above, in respect remainder of the application. of the period since payment of the fine by the appellant on 2 June 1994 until repayment by the Commission and at such rate as is considered by the Court to be fair and just; 5. The appellant lodged an appeal against that judgment with the Registry of the Court of Justice on 25 May 1999.

(5) order the Commission to pay the costs.

I I— Forms of order sought and grounds of appeal The Commission asks the Court to:

6. In its appeal the appellant asks the Court to: (1) dismiss the appeal;

Second ground of appeal: Fifth ground of appeal:

'The Court of First Instance erred in law in finding that the Decision had been adopted 'The Court of First Instance erred in law in and authenticated in conformity with the finding that the Decision contained an requisite rules and procedures'. adequate statement of reasons for the fine imposed on the appellant'.

Third ground of appeal: Sixth ground of appeal:

'The Court of First Instance erred in law in characterising the facts as agreements or concerted practices prohibited by 'The Court of First Instance erred in law in Article 65(1) of the ECSC Treaty, in failing, contrary to Article 33 of the Treaty, disregard of its own findings as to the to annul the Decision to the extent to which nature and purpose of the contacts taking it had found that the appellant had com- place between the undertakings within the mitted infringements of Article 65(1) prior framework of the Commission's monitor- to 1 July 1988.' ing system and contrary to the meaning and purpose of Article 65(1)'.

Summary of the grounds of appeal and their component parts according to the Fourth ground of appeal: essential issties of law involved

'The Court of First Instance erred in law in 8. The arguments submitted on the indi- finding, contrary to the rights of defence, vidual grounds of appeal and their com- that, during the administrative procedure, ponent parts indicate that the appellant is

— erred in law in assuming that the Decision was substantially valid, even 9. The examination which follows is though arranged according to this summary. The grounds of appeal put forward by the appellant, their component parts and argu- ments and the Commission's contentions shall be examined under these individual points. 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 (third ground of appeal) 10. The grounds of appeal in these pro- and ceedings correspond, in part, to the sub- I-11186

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stance of the grounds of appeal or parts of particularly with regard to its awareness of the grounds of appeal put forward in Case practices to which objection was sub- C-194/99 P Thyssen Stahl v Commission of sequently raised and with regard to the the European Communities. 6 I am also connection with measures put in place delivering my Opinion in that case today. under Article 47 et seq. of the ECSC Where there is a substantive correspond- Treaty, the appellant's procedural rights ence of arguments, I shall refer in the had been infringed. present Opinion to the analyses set out in my Opinion in Case C-194/99 P.

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ings concerned, plus statements made by a application of Article 65 of the ECSC member of the Commission's staff, excerpts Treaty, as meetings between the Com- from which are quoted by the appellant mission and the undertakings con- from the English transcript of the oral cerned, considered by DG III to be proceedings before the Court of First lawful, could also have affected the Instance. market conduct of producers;

14. The appellant considers that, had it been informed in good time of this infor- mation, to which it was not given access until the proceedings had reached the Court —• the impact of the arrangements agreed of First Instance, it would have been in a between the Commission and the Scan- position to influence the course of the dinavian authorities on the allegation procedure before the Commission in such of price-fixing on the Danish market; a way as to affect the substance of the Decision, in relation to the following issues:

— the proper construction to be placed on — the culpability of the alleged practices the internal discussions between the in relation to the appropriateness and producers; level of the fine.

— the meaning of the concept of 'normal competition' during the period in ques- tion; 15. The appellant submits that the obser- vations by the Court of First Instance at paragraphs 96 et seq., 101 and 102 of the judgment under appeal are concerned not with material collected by the Commission — the Commission's knowledge of the in general but only with the Commission's internal discussions between the pro- notes relating to its internal investigation. ducers and the subsequent exchange of The Court of First Instance, it argues, did opinions and forecasts; not consider the significance for the rights of defence of the non-production of those documents during the procedure before the Commission or of the fact that the testi- mony of witnesses concerning the role of — the meaning and relevance of Article 46 the Commission was not provided until the et seq. of the ECSC Treaty to the judicial proceedings.

19. The appellant further criticises para- graph 92 of the judgment under appeal. The Court of First Instance here noted thai- there were deficiencies in DG IV's investi- 17. The appellant particularly criticises gation regarding the conduct of DG III but- paragraph 96 of the judgment under found at the same time that it was not appeal, according to which '... the guaran- DG IV's function to check the explanations tee of the rights of the defence afforded by provided by DG III. This finding is incor- the first paragraph of Article 36 of the rect because DG IV was responsible for the Treaty does not require the Commission to conduct of the investigation and ought for reply to all the arguments of the party that reason to have satisfied itself as to the concerned, to carry out further investi- accuracy of the explanations provided by gations or to hear witnesses put forward DG III. The duty to comply with Article 36 by the party concerned, where it considers of the ECSC Treaty is a duty imposed on that the preliminary investigation of the the Commission as a collegiate body, so case has been sufficient'. In this case too the that DG IV's failure to obtain and forward Commission had an obligation to disclose the necessary information cannot be all documents in its possession, as they excused by the fact that that information were necessary for the appellant's defence. was available within DG III rather than DGIV.

18. The appellant also takes issue with 20. The appellant also challenges para- paragraph 98 of the judgment under graphs 81, 99 and 102 of the judgment appeal, according to which '... the fact that under appeal, which state that it is for the the Commission decided to open an inter- Commission to rule on the relevance to the nal investigation was not, in itself, such as defence of documentation in its possession. to oblige it to make the material collected Not even considerations of confidentiality during that investigation available to the can justify the Commission in determining applicants'. The Court of First Instance by itself the relevance of documentation to

21. The appellant also refers to the judg- ment in Case T-42/96, 8in which the Court of First Instance held that, where the Commission is alleged to have committed serious breaches of its obligations, in order 23. In conclusion, the appellant refers by for the right to be heard to be exercised way of example to paragraphs 320 and 558 effectively the Commission must provide of the judgment under appeal. The Court of access to all non-confidential adminis- First Instance dismissed the appellant's trative documents relating to the decision, argument that the Commission was aware if requested to do so. Indeed, documents of and even encouraged the conduct of the which the Commission does not consider to undertakings that was subsequently com- be relevant may well be of interest to the plained of, basing this conclusion simply on undertakings concerned. If the Commission records originating with the appellant and could unilaterally exclude from the admin- one of the other applicants in the proceed- istrative procedure those documents which ings before the Court of First Instance, the might be detrimental to it, that could trade association Eurofer. However, the infringe the procedural rights of the parties. Court of First Instance erred in law in its In the judgment under appeal, the Court of failure to order the Commission to produce First Instance failed to follow the rules that other documents in this connection. it had itself established. Knowledge of these documents during the procedure before the Commission would have enabled the appellant to put forward an appropriate defence.

25. It argues that, even if there had been ticularly in view of its voluminous replies to documents in its possession which demon- the statement of objections'. strated that DG III knew the full extent of the conduct of the undertakings sub- sequently complained of, a situation which it describes as extremely hypothetical, that could have been relevant only to the level of the fine, not to the question whether breaches of competition law had at all 28. The appellant does not state in what been committed. way it disagrees with that conclusion. Nor does it demonstrate how the arguments which it adduced during the administrative procedure might have been reinforced had it had access to the documents in question. More particularly, it fails to indicate which documents could have helped it in putting its views across. 26. The Commission takes the view that the Court of First Instance was otherwise correct in law in its answer to the question of disclosure to the appellant of documents concerning the internal investigations at paragraph 96 et seq. of the judgment under appeal. It found, at paragraph 100, that the 29. Nor is there any inconsistency between Commission's notes concerning its internal the Court of First Instance's finding that the investigation were by their very nature documents were not disclosed during the confidential and clearly did not contain administrative procedure and the fact that any exonerating material. The other docu- it ordered their production during the ments identified concerned meetings judicial proceedings. Those documents between the producers and the Commission were not evidence on which the Commis- and, by definition, the producers were sion intended to rely against any of the aware of those meetings. undertakings. The case-law cited by the appellant cannot be transposed without qualification to a case in which the gra- vamen of the allegation in respect of procedural rights is the very different one that the Commission encouraged or toler- ated the infringement of competition law. 27. Furthermore, although all of the docu- ments were disclosed to the appellant, it was unable to point to any exonerating evidence that the Commission ought to have disclosed during the administrative procedure. The Court of First Instance for 30. As regards the harmonisation of extras, that reason stated, at paragraph 102, that the Commission considers that this is an 'there is nothing to suggest that the appli- attempt by the appellant to have the Court cant was not enabled to express its views review the appraisal of the facts. Fur- during the administrative procedure, par- thermore, in the light of the Court of First

33. In its criticism of paragraphs 81, 99 and 102 of the judgment under appeal the 36. The appellant's arguments relate to two appellant is, thirdly, addressing the prob- categories of information: first, general lem of whether it is for the Commission information held by the Commission relat- alone to decide whether or not knowledge ing to contacts between D G III and the of certain information is necessary to undertakings concerned and, second, docu- safeguard the rights of defence of the mentation relating to internal investi- undertakings concerned. gations into the role of D G III. I -11192

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37. In so far as the appellant's arguments Court has repeatedly stated that a ground relate to access to information on the of appeal must also be dismissed 'if the internal investigations, those complaints grounds of a judgment of the Court of First correspond essentially to the argument put Instance reveal an infringement of Com- forward by Thyssen Stahl, the appellant in munity law but the operative part appears Case C-194/99 P. I accordingly refer to the well founded on other legal grounds'. 9 grounds set out in paragraph 40 et seq. of the Opinion which I am delivering today in that case, in which I conclude that this ground of appeal should be dismissed to this extent as being unfounded. Those grounds apply mutatis mutandis to the present case.

40. According to the Court's case-law, there will be an infringement of the right of access to documents 10 only if knowledge of the information contained in them might have influenced the course of the procedure (b) The question of incomplete appraisal of and hence the content of the decision. A the argument in relation to access to conclusive appraisal as to whether a dif- general information ferent decision would actually have been reached is not required. 11

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44. Nor has the appellant claimed that information from such sources would not have had sufficient value as evidence, with the result that it had to rely on obtaining 47. The appellant's argument in this con- the information from the Commission nection must therefore be dismissed as itself. unfounded. I - 11194

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(c) The question of the power to decide on 50. The appellant's submission in this the need to grant access to documents in respect must therefore also be dismissed order to safeguard the rights of the defence as unfounded.

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ings before the Court of First Instance 13 considers that the Court of First Instance because — as has been shown — no pro- erred in law in finding that there were no cedural error by the Commission has been material differences between the versions demonstrated. C(94)321/2 and C(94)321/3 of the Decision and the versions of the Decision notified to the undertakings concerned. 53. In conclusion, therefore, the fourth ground of appeal, by which the appellant alleges infringement of procedural rights, must be dismissed as being in part inad- missible and as being otherwise unfounded. 56. An analysis of the documents sub- mitted by the Commission to the Court of First Instance, it argues, reveals a number of formal defects in the adoption of the 2. The Commission's adoption of the contested Decision. 14 Decision (second ground of appeal)

54. The second ground of appeal consists of two parts. In the first part the appellant criticises the alleged lack of correspondence 57. It is also apparent from paragraph 137 between the adopted and notified versions et seq. of the judgment under appeal that of the Decision. In the second part it takes there were differences in the wording of the issue with what it considers to be the various versions but that the Court of First defective authentication of the Decision. Instance did not consider these discrep- ancies to be 'substantive'.

(a) The issue of correspondence between the adopted and notified versions of the Decision 58. The Commission takes the view that this plea is inadmissible because the appel- lant did not raise it in the proceedings before the Court of First Instance. It argues Arguments of the parties that it is also inadmissible because on this point the Court of First Instance simply established the facts, stating that it had not found any substantive differences between the different versions of the Decision. 55. The appellant takes issue with para- However, the appellant does not allege graph 137 of the judgment under appeal. It any patent substantive inaccuracy in that finding or any distortion of evidence.

Analysis

64. The appellant considers that the 6 1 . The purely substantive concordance Decision was not formally authenticated. between the version of the Decision noti- The minutes relate to versions C(94)32I/2 fied to the appellant and the version which and C(94)321/3 of the Decision and not to was before the Commission at the time of a version with the number C(94)321 Final adoption is a finding of fact and not an or C(94)321/4, which was the version issue of law. notified to the appellant. There was no proof that the President and the Secretary- General of the Commission had authenti- cated the Decision in accordance with the requirements of Article 16 of the Commis- sion's 1993 Rules of Procedure, 15 the 62. The material nature of differences in minutes do not refer to the annex and the the wording of those versions is a question minutes themselves state that they comprise of appraisal of evidence which, unless 43 pages, which is the number of pages of distortion of evidence by the Court of First the minutes themselves and does not there- Instance is alleged, cannot be examined on fore include the text of the Decision. appeal and is therefore an issue which renders a ground of appeal inadmissible in that respect. 15 — OJ 1993 L 230, p. 15.

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65. The fact that the photocopy of the 68. The appellant submits that the Court of minutes was produced to the Commission's First Instance abdicated its function of agent, and by him to the Court of First judicial review in assuming, as it did, that Instance, in the same cardboard box as the all of the procedural requirements govern- copies of documents C(94)321/2 and ing the adoption of a decision in 1994 had C(94)321/3, could not provide any basis been fulfilled simply because the photo- whatever for the assumption by the Court copies had been certified by the then of First Instance that those documents had Secretary-General and forwarded to the been 'annexed' to the original version of Court of First Instance in the same card- the minutes in accordance with the require- board box as a series of other language ments of Article 16 of the 1993 Rules of versions of the Decision purportedly Procedure. adopted.

61. The Court of First Instance erred when, in paragraph 149 of the judgment under 70. The Rules of Procedure do not require appeal, it accepted certification of the the date of authentication to be stated. photocopy by the Secretary-General of the However, the date of authentication is as Commission as proof that the minutes had crucial as the date on which the Decision been signed. Only production of the orig- was adopted. inal version of the minutes, it contends, could have established that the minutes satisfied the requirements of the Rules of Procedure. 71. The Commission argues that the appel- lant is citing case-law concerning an earlier 16—-Joined Cases T-79/89, T-84/89, T-85/89, T-86/89, T-89/89, T-91/89, T-92/89, T-94/89, T-96/89, T-98/89, version of the Rules of Procedure than that T-102/89 and T-104/89 BASF and Others v Commission in force when the Decision was adopted. [1992] ECR II-315 and Case T-32/91 Solvay (cited in footnote 7). The relevant provisions were Articles 16 I-11198

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and 9 of the 1993 Rules of Procedure, cited as inadmissible, to paragraph 68 et seq. of by the Court of First Instance in paragraphs the Opinion that I am delivering today in 143 and 144 of its judgment. the aforementioned case. Those grounds apply mutatis mutandis to the present case.

72. The 1993 Rules of Procedure do not 75. The second part of the second ground define how a document is to be 'annexed' of appeal, alleging lack of authentication of and, in the light of the presumption of the Commission's adoption of the Decision, legality of Community measures, the cer- must therefore also be dismissed as inad- tification of the copy also cannot be missible. described as inadequate. Furthermore, the minutes of the meeting expressly referred to documents C(94)321/2 and C(94)321/3.

that it had engaged in agreements and in prices could come about without any concerted practices relating to prices and in agreement being necessary. The Court of the information exchange system, contrary First Instance failed to have regard to those to Article 65(1) of the ECSC Treaty, factors and concluded that price-fixing conflicts with that Court's own findings agreements had been adopted. It also con- regarding the purpose, context and subject- cluded that market-sharing agreements matter of the discussions that the Commis- existed, without taking account, in assess- sion conducted with the undertakings in ing the evidence, of the fact that the connection with the monitoring of the steel discussions had taken place under the sector introduced after the end of the Commission's surveillance system. The period of manifest crisis. same applies to participation in the Pout- relies Committee system for the exchange of information, which was treated as con- stituting a separate infringement of compe- tition rules.

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82. The appellant also takes issue with the appellant had engaged in a separate paragraph 311 of the judgment under breach of Article 65( 1 ) of the ECSC Treaty appeal. The Court of First Instance's find- by participating in the information ing that Article 46 et seq. of the ECSC exchange system. It considers that the Treaty are irrelevant to the application of Court of First Instance failed to demon- Article 65 is based on contradictory reason- strate that participation in the information ing and a misinterpretation of the ECSC exchange system constituted a separate Treaty inasmuch as Article 46 et seq. of the breach of Article 65(1) inasmuch as it ECSC Treaty provide for a surveillance neglected to draw a coherent distinction system having a significant effect on the between the allegedly anti-competitive c o n s t r u c t i o n and a p p l i c a t i o n of effects of the price-fixing and market-shar- Article 65(1) of the ECSC Treaty. ing agreements, on the one hand, and the information exchange system, on the other.

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CORUS UK v COMMISSION

flows of trade. It is therefore incorrect to in the concept of 'normal competition' claim that the Court of First Instance failed within the meaning of Article 65( 1 ) of the adequately to show why this constituted a ECSC Treaty by misinterpreting the con­ separate infringement. nection with other objectives of the ĽCSC Treaty, particularly the application of Article 46 et seq. and Article 60 of the ECSC Treaty.

94. The appellant's argument concerning the oligopolistic structure of the market is, the Commission contends, inadmissible as it was raised for the first time in the appeal. Furthermore, the Court of First Instance 97. As these objections correspond essen­ referred to the judgment in the Geitlwg tially to the argument put forward by case, 18 in which the Court stated that, Thyssen Stahl, the appellant in Case given the oligopolistic structure of that C-194/99 P, 1 refer, with regard to the market, it was all the more important that grounds on which the first part of the third residual competition be protected. ground of appeal must be dismissed as unfounded, to paragraph 135 et seq. of tlie Opinion that I am delivering today in that case. Those grounds apply mutatis mutan­ dis to the present case.

95. The ground of appeal is also inadmis­ sible in this respect because it challenges a finding of fact, even though the appellant simply dresses it up as a point in the legal reasoning. 98. It must be added that the appellant's reference to paragraphs 656 and 658 of the judgment under appeal cannot lead to any different conclusion. Analysis

100. It cannot be inferred from those Thyssen Stahl, the appellant in Case paragraphs that the Court of First Instance C-194/99 P, I refer, with regard to the was there applying different considerations grounds on which the second part of the to evaluation of the scope of the limits third ground of appeal must also be inherent in the system than to its appraisal dismissed as being in part inadmissible of the evidence of the practices under and as being otherwise unfounded, to complaint. The Court of First Instance paragraph 109 et seq. of the Opinion that was there dealing only with the potential I am delivering today in that case. Those economic effects of proper conduct on the grounds apply mutatis mutandis to the part of undertakings, which was precisely present case. not the position here. It was only in this context that the Court of First Instance referred to a 'degree of ambiguity' (among the undertakings concerned) as to inter- pretation of the concept of 'normal com- petition'. The Court of First Instance also found, but only in this context, that it was 104. The third ground of appeal, alleging a unnecessary 'to rule on the extent to which variety of errors of law in the interpretation undertakings could exchange individual of Article 65 of the ECSC Treaty, must data for the purpose of preparing for therefore be dismissed as being in part consultation meetings with the Commis- inadmissible and as being predominantly sion without thereby acting contrary to unfounded. Article 65(1) of the Treaty...'.

101. The first part of the third ground of appeal must therefore be dismissed as being 2. The confirmation in the Decision of unfounded in its entirety. infringements prior to 1 July 1988 (sixth ground of appeal)

109. In the light of the serious infringe- ments which had to be regarded as estab- lished, the one remaining unproven alle- gation was so insignificant that, even had it extended the scope of its partial annulment 107. Against this, the Commission of the Decision, the Court of First Instance observes that the Court of First Instance would still have awarded costs against the found, in paragraph 166 of the judgment appellant in that respect. under appeal, that none of the undertakings could be charged with the first of the two infringements of Article 65(1) of the ECSC Treaty referred to in recitals 223 and 224 of the Decision, which took place prior to 1 July 1988, because the details were too 110. Should the Court none the less be imprecise. So far as the appellant is con- minded to uphold this ground of appeal cerned, therefore, it is only the second and annul Article 1 of the Decision only on infringement, mentioned in recital 224 of the ground that it is alleged in that article the Decision, in the form of a price-fixing that the appellant participated in a price- agreement for Germany and France alleg- fixing meeting prior to 1 July 1988, it- edly reached at an unspecified date prior to should not order the Commission to pay 2 February 1988, that could have been any portion of the costs of the present covered by its application for an amend- appeal. ment to Article 1 of the Decision. The Court of First Instance found, in paragraph 170 of the judgment under appeal, that the appellant's participation had not been proved in this connection. Analysis

113. Article 1 of the Decision thus does not simply relate to infringements 'to the extent 116. This finding is also not gainsaid by the described in this Decision', which could be fact that, where the operative part of a construed as a reference to the grounds of decision remains unchanged, the erroneous the Decision (and therefore to the price- grounds of that decision remain in law fixing agreements prior to 1 July 1988 that unchanged as such. This would, however, were unproven in this respect). Article 1 be questionable only if it were to be also refers to the list setting out the assumed that those sections of the grounds infringements and giving details of their of the decision were capable of producing a duration, as stated under the appellant's binding legal effect; 1 9 adverse effects of a name. This list therefore forms an equal factual nature are irrelevant. 2 0 integral part of Article 1 of the Decision and thus of the operative part of the Decision.

117. The (incorrect) finding in the grounds 114. The duration of the price-fixing of the Decision that the appellant had been within the Poutrelles Committee, of which involved in price-fixing agreements in two the two price-fixing agreements not proven specific cases could probably have an against the appellant also in principle form a part, is put at 27 months. Calculating back from the end of the period of the 19 — Case 60/81 IBM v Commission [1981] ECR 2639. entirety of the practices complained of 20 — Joined Cases T-125/97 and T-127/97 Coca-Cola v Com- mission [2000] ECR 11-1733, in which the issue was (31 December 1990), this means that the whether the grounds of the decision could produce binding legal effects if the operative part of the decision did not, as unproven price-fixing agreements prior to such, run counter to the interests of the parties concerned.

21 — 'Paragraph 2. Aggravating circumstances' of the 'Guide- lines on the method of setting fines imposed pursuant to 2 2 — J u d g m e n t in Case T-148/89 Tréfilunion v Commission Article 15(2) of Regulation No 17 and Article 65(5) of the [1995] ECR II-1063, paragraph 142; order in Case ECSC Treaty' (OJ 1998 C 9, p. 3) refers inter alia to C - 1 3 7 9 5 P SPO and Others v Commission | 1 9 9 6 | ECR 'repeated infringement of the same type by the same I-1611; judgment in Case T-150/89 Martmelh v Commis- undertaking(s)'. sion [1995] ECR II-1165.

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122. The Court of First Instance erred in 125. The Commission notes that the appel- finding, in paragraph 628 of the judgment lant is not challenging paragraphs 624 and under appeal, that the arithmetical formu- 625 of the judgment under appeal, which las on which the calculations were based, contain the essential reasoning relating to which were disclosed only during the the fine. The other paragraphs of the judicial proceedings, were the mere 'trans- judgment under appeal are to be considered lation into figures of the criteria set out in supererogatory. This means that the Court the Decision'. could not overturn that judgment even if it disagreed with the other paragraphs, because those paragraphs are not essential stages in the reasoning leading to the conclusion.

123. The appellant also refers to para- graphs 627, 690 and 691 of the judgment under appeal. As a result of the extra information provided by the Commission only in the judicial proceedings before the Court of First Instance, it was able to identify the mistakes in the calculation of the fine imposed upon it. The Court of First 126. The Court of First Instance considered Instance thus erred in law in holding that it desirable, but not legally necessary, that there had been no breach of the duty to details be provided on the calculation of the state reasons. fine in the Decision. Since the Court of First Instance made those comments in an earlier case, the Commission has adopted guide- lines in that regard which it now follows.

the ECSC Treaty to the appellant's con- of the European Convention for the Pro- duct. There was accordingly no conceivable tection of Human Rights and Fundamental basis for a further reduction in the fine on Freedoms (ECHR), essentially in relation to that account. two procedural rights guaranteed by that provision. First, in the proceedings before the Court of First Instance its right to equality of arms and its right of access to information and relevant evidence were infringed, with the result that it did not Analysis receive a fair hearing pursuant to Article 6(1) in conjunction with Article 6(3)(d) ECHR. Second, as a result of the excessive length of the proceedings, the Court of First Instance infringed the 128. As these objections correspond essen- appellant's right to a determination within tially to the argument put forward by a reasonable time, which is afforded to Thyssen Stahl, the appellant in Case everyone under Article 6(1) ECHR. C-194/99 P, I refer, with regard to the grounds on which the fifth ground of appeal must be dismissed as unfounded, to paragraphs 172 et seq. and 218 et seq. of the Opinion that I am delivering today in that case. Those grounds apply mutatis mutandis to the present case.

129. The fifth ground of appeal, alleging 131. Article 6(1) and (3) ECHR provides as failure to acknowledge the defects in the follows: Decision's reasoning with regard to the level of the fine, must therefore be dis- missed as unfounded.

D — The ground of appeal alleging infringements of the ECHR (first ground of appeal) 'In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable 130. In its first ground of appeal the time by an independent and impartial appellant alleges infringements of Article 6 tribunal established by law....

135. It contends that the documents which the Court of First Instance had ordered to be produced in its order of 10 December 5 1997 were not made available until 14 January 1998, that the definitive description of the methodology used to calculate the fine was produced on 19 March 1998 and that a copy of the 132. In its legal arguments on these provi- definitive minutes of the Commission meet- sions preceding its submissions in relation ing at which the Decision was adopted was to the case in point, the appellant cites not made available to the applicants before several judgments of the European Court of the Court of First Instance until 20 March Human Rights ('the Court of Human 1998, even though the hearing commenced Rights') and submits that proceedings relat- on 23 March 1998. As a result of those ing to infringements of the competition law delays in the provision of documentation, of the ECSC are 'criminal' proceedings for for which there was no justification, the the purposes of Article 6 ECHR. appellant was denied an adequate oppor- tunity to examine evidence relevant to its submissions and was placed at a significant disadvantage vis-à-vis the Commission.

Material arguments of the parties

136. The appellant also complains that there was not a fair balance between it 133. With regard to the principle of a fair (or the other applicants) and the Commis- hearing, the appellant submits that the sion before the Court of First Instance judgment of the Court of First Instance because they had no opportunity to ques- should be set aside in its entirety as being tion the officials of the Commission whose

testimony was heard by that Court (Messrs Ortun, Kutscher and Vanderseypen) or Ortun, Kutscher and Vanderseypen) in otherwise to challenge adequately the evi- advance of the hearing and were given no dence given by them. The then applicants prior notice of the statements to be made had only a limited period of time during the by them. Although they were given an hearing to comment on the evidence given opportunity to comment on the evidence by the witnesses and were provided with no presented by the witnesses, the time avail- opportunity whatever to test those wit- able between the end of the hearing on nesses as to the accuracy or completeness of 23 March 1998 and its reopening on the their testimony or to elicit other infor- following morning was inadequate. mation from them, whether exculpatory or inculpatory. The appellant ought to have been given an opportunity to put questions to the witnesses, particularly in view of the reliance which the judgment under appeal ultimately placed on the witness statements (paragraphs 538 to 546 of the judgment 137. The Commission fails to understand under appeal); the Commission had access how the appellant had insufficient oppor- to the witnesses at any time prior to the tunity to prepare for the hearing or how it proceedings, as did the Court of First was placed at any disadvantage. As for the Instance during the proceedings, whereas information that had to be produced in the appellant was given no opportunity to response to the C o u r t ' s order of put questions to them. 10 December 1997, the appellant had more than two months in which to prepare for the hearing. The documents setting out the methodology used to calculate the fines were provided simply in amplification of details already submitted in January and February (paragraph 66 of the judgment under appeal). As far as the minutes of the Commission meeting are concerned, a draft version of those minutes had already been available to the appellant several weeks 139. The Commission argues in this con- prior to the hearing (paragraph 64 of the nection that there is nothing in the Rules of judgment under appeal). The Commission Procedure of the Court of First Instance finally observes that the appellant made no that provides for witnesses to be questioned application for the hearing to be postponed in advance of the hearing or for prior notice on account of the date of production of any to be given of the statements to be made by of the documents in question. them. In the Community legal system, witnesses arc witnesses of the Court of First Instance, not of the parties; the ques- tions posed are entirely a matter for the Court of First Instance and it is in that Court's discretion as to whether parties should be given the opportunity to question 138. The appellant argues, second, that it witnesses. The Commission notes that the was denied a right to put questions to the appellant did not make an application at three Commission witnesses (Messrs the hearing to examine any of the wit-

140. On the issue of reasonable time, the appellant submits that the duration of the proceedings before the Court of First Instance — 59 months from the lodging of the application for annulment on 142. Throughout the entire proceedings, 13 April 1994 to pronouncement of judg- the Commission sought to delay them and ment on 11 March 1999 — was manifestly the Court of First Instance on several unreasonable, as was the length of time occasions extended the time given to the taken at individual stages of the proceed- Commission in its measures of organisation ings, such as the period from the date of the of procedure. The appellant, in contrast, Commission's rejoinder until the opening was keen to ensure a speedy resolution to of the oral procedure (40 months). The the proceedings at first instance, particu- complexity of the proceedings was not such larly in view of the amount of the contested as to justify the delays experienced in this fine; throughout the proceedings it urged case. Three of the eleven applicants (NMH the Court of First Instance to resist the Stahlwerke GmbH, Krupp and Eurofer) Commission's delaying efforts. gave rise only to a limited number of issues.

the Court in the Baustahlgewebe case, 2 3 webe judgment, a finding that the length of the duration of the proceedings in issue the proceedings was excessive could not of here will be found to have been shorter itself be a ground for setting aside the (four years and eleven months, compared judgment in its entirety, but could at most with five years and six months in the justify only a reduction of the fine. Baustahlgewebe case). Contrary to the view expressed by the appellant, its case raised many complex and novel issues, including inter alia the extent of parallelism between the ECSC and EC competition Analysis provisions, the connection between various Articles of the ECSC Treaty and factual questions relating to the role played by DG III. 147. The appellant is relying in the present case on procedural guarantees contained in Article 6(1) and Article 6(3)(d) of the ECI-IR. 145. The issues raised in connection with Article 23 of the Protocol on the Statute of the Court of Justice of the ECSC consti­ tuted 'exceptional circumstances' within the meaning of the Baustahlgewebe judg­ 148. According to the Court's established ment. The Court of First Instance had to case-law, 24 'fundamental rights form an consider some 11 000 documents in this integral part of the general principles of law connection in the light of the parties' whose observance the Court ensures. 25... submissions and issued two reasoned For that purpose, the Court draws inspira­ orders of major importance. Furthermore, tion from the constitutional traditions the Court of First Instance showed great common to the Member States and from willingness to entertain the various requests the guidelines supplied by international for production of documents. The period treaties for the protection of human rights between the conclusion of the hearing and on which the Member States have collabor­ delivery of the judgment was again shorter ated or of which they arc signatories. In than in Baustahlgewebe. The expiry of the that regard, the European Convention for mandates of two of the judges during the the Protection of Human Rights and Fun­ proceedings, the subject of criticism by the damental Freedoms (hereinafter "the appellant, ought also to be regarded as an 26 ECITR") has particular significance'. 'exceptional circumstance'.

1. Fair hearing (equality of arms, examin- ation of witnesses) 150. As regards the appellant's submission that such proceedings are classified as being 'criminal' in nature for the purposes of Article 6 ECHR, suffice it to hold that both the right to a hearing within a reasonable time pursuant to Article 6(1) ECHR and 152. The appellant complains of a vio- the right to call witnesses and to examine lation of its right to a fair hearing as witnesses called by the Court, which is provided for in Article 6(1) in conjunction expressly afforded, in principle, under with Article 6(3)(d) ECHR, specifically in Article 6(3)(d) ECHR, only to a person relation to two aspects of the proceedings charged with a criminal offence, applies to before the Court of First Instance: first, the both criminal and civil proceedings. production of various documents by the According to the case-law of the Court of Commission and, second, the examination Human Rights, this right constitutes of the witnesses Messrs Ortun, Kutscher another form of the principle of 'equality and Vanderseypen. of arms' applicable to civil rights and obligations under Article 6(1) ECHR and can therefore also be examined under 28 — See, for example, the judgments of the Court of Human Rights in Feldbrugge v Netherlands, 29 May 1986, Series A, No 99, paragraph 44, Albert and Le Compte v Belgium, 10 February 1983, Series A, No 58, paragraph 39, and Kostovski v Netherlands, 20 November 1989, Series A, 27 — Banstahlgetwebe (cited in footnote 23), paragraph 21; see No 166, paragraph 39. also Joined Cases C-174/98 P and C-189/98 P Netherlands 29 — See the judgment in Case C-13/99 P Team v Commission and van der Wal v Commission [2000] ECR I-1, paragraph [2000] ECR 1-4671, paragraph 45, and the order in Case C-17/98 Emesa Sugar [2000] ECR 1-665.

155. In the light of the foregoing, therefore, consideration must first be given to the claim that the appellant was denied a reasonable opportunity before the Court of First Instance to examine specified documentation produced by the Commis- 154. Second, according to the case-law of sion. the Court of Human Rights, the concept of a fair hearing for the purposes of Article 6 ECHR demands observance of the rights of the defence and of equality of arms and the conduct of adversarial pro- ceedings. 31 That means that the parties to a criminal or civil trial must be given the 156. As far as the documents which the opportunity to have knowledge of and Court of First Instance ordered to be comment on all evidence adduced or produced in its order of 10 December 1997 observations filed with a view to influenc- are concerned, these were made available ing the Court's decision. 32 According to to the appellant on 14 January 1998, thus the principle of equality of arms, no party more than two months before the oral to proceedings may be placed at a dis- procedure. In so far as the appellant advantage by the manner in which those criticises the late production, on 19 March proceedings are conducted and each party 1998, of the definitive methodology used to must be given a reasonable opportunity to calculate the fines, the length of time present his case under conditions that do available to the appellant in which to examine that methodology and to comment on it before the hearing came to a close 30 — Case C-13/99 P (cited in footnote 29), paragraph 36. does not appear to have been unreasonably 31 — See, for example, the judgments of tile Court of Human Rights in Borgers v Belgium, 30 October 1991, Series Λ, N o 214-B, paragraph 25, Lobo Machado v Portugal, 20 February 1996, Reports of Judgments and Decisions 1996-I, paragraph 3 1 , and Morel v France, 6 June 2000, 33 — See, for example, the |udgmenls of the Court of Human Reports of Judgments and Decisions 2000-VI, paragraph Rights in Niderost-Huber v Switzerland, 18 February 27. 1997, Reports of Judgments and Decisions 1997-I, para­ 32 — See the )udgments of the Court of Human Rights in graph 23, and Morel v France (cited in footnote 31), Vermeulen v Belgium, 20 February 1996, Reports of paragraph 27. Judgments and Decisions 1996-I, paragraph 33, and the 34 — See the judgments of the Court of Human Rights in order in the Emesa Sugar case (ateu in footnote 29), Feldbrugge (cited i n footnote 28), paragraph 44, and paragraph 6, and the case-law of the Court of Human Doorson v Netherlands, 26 March 1996, Reports of Rights there cited. Judgments and Decisions 1996-II, paragraphs 67 and 72.

160. It is now necessary to address the question of the calling and examination of witnesses before the Court of First Instance. 157. Given those circumstances, the appel- lant was afforded a reasonable opportunity to examine and comment on those docu- ments.

161. According to the case-law of the Court of Human Rights, Article 6(1) in conjunction with Article 6(3)(d) ECHR 158. It should also be mentioned that, in accordance with Article 62 of its Rules of Procedure, the Court of First Instance may 37 — See in this sense, with regard to the Court's procedure, the order in Emesa Sugar (cited in footnote 29), paragraph 18. of its own motion, on a proposal from the 38 — See on this point the case-law of the Court of Human Rights, which states that it is for the parties to proceedings to exercise their procedural rights; see, for example, the judgments in Albert and Le Compte (cited in footnote 28), 35 — See paragraphs 57 and 58 of the judgment under appeal. paragraph 41, Olsson v Sweden, 24 March 1988, Series A, No 130, paragraph 81, and Kostovski (cited in footnote 36 — See paragraph 64 of the judgment under appeal. 28), paragraph 42.

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CORUS UK v COMMISSION

requires that a party to proceedings be Vanderseypen on 23 March 1998 41— has given an adequate opportunity to challenge to be served on the parties under that and question a witness, either at the time provision, with the result that they are that the witness makes his statement or at substantially aware, before the hearing some later stage of the proceedings. 39 An takes place, of the matters on which the applicant does not therefore have the right witnesses are to be examined. to question witnesses prior to the hearing, as claimed by the appellant.

39 — See, for example, the Kostouski judgment of the Court of 41 — See paragraph 67 of the judgment under appeal. Human Rights (cited in footnote 28), paragraph 41. 42 — See the case-law of the Court of Human Rights cited in 40 — Sec paragraph 154 above. footnote 38.

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OPINION OF MRS STIX-HACKL — CASE C-199/99 P

opportunity to comment on the witnesses' case. Those grounds apply mutatis mutan- statements, that opportunity was not a dis to the present case. reasonable one, I also refer to what I have stated in paragraph 158 above.

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CORUS UK v COMMISSION

IV — Conclusion

172. For the above reasons, I propose that the Court:

— dismiss the appeal;

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