JUDGMENT OF THE COURT
17 December 1998 (1)
(Appeal Admissibility Duration of procedure Preparatory inquiries Access to the file Competition Agreements, decisions and concertedpractices Fines)
In Case C-185/95 P,
Baustahlgewebe GmbH, a company incorporated under German law, establishedin Gelsenkirchen (Germany), represented by Joachim Sedemund and FrankMontag, Rechstanwälte, Cologne, with an address for service in Luxembourg at theChambers of Aloyse May, 31 Grand-Rue,
APPEAL against the judgment of the Court of First Instance of the EuropeanCommunities (First Chamber) of 6 April 1995 in Case T-145/89 Baustahlgewebe vCommission  ECR II-987, seeking to have that judgment set aside,
the other party to the proceedings being:
Commission of the European Communities, represented initially byBernd Langeheine, of its Legal Service, acting as Agent, then by Paul Nemitz, ofits Legal Service, acting as Agent, assisted by Alexander Böhlke, of the BrusselsBar, with an address for service in Luxembourg at the office of Carlos Gómez dela Cruz, of its Legal Service, Wagner Centre, Kirchberg,
composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet and G. Hirsch(Presidents of Chambers), G.F. Mancini, J.C. Moitinho de Almeida,D.A.O. Edward, H. Ragnemalm (Rapporteur), L. Sevón, M. Wathelet, R. Schintgenand K.M. Ioannou, Judges,
Advocate General: P. Léger,
Registrar: H.A. Rühl, Principal Administrator,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 4 November 1997,
after hearing the Opinion of the Advocate General at the sitting on 3 February1998,
gives the following
- By application lodged at the Registry of the Court of Justice on 14 June 1995Baustahlgewebe GmbH brought an appeal pursuant to Article 49 of the EC Statuteof the Court of Justice against the judgment of 6 April 1995 in Case T-145/89Baustahlgewebe GmbH v Commission  ECR II-987 (hereinafter 'thecontested judgment), in which the Court of First Instance partially annulled Article1 of Commission Decision 89/515/EEC of 2 August 1989 relating to a proceedingunder Article 85 of the EEC Treaty (IV/31.553 Welded steel mesh, OJ 1989L 260, p. 1, hereinafter 'the Decision), fixed the amount of the fine imposed bythe Commission at ECU 3 million, dismissed the other heads of claim and orderedthe applicant to bear its own costs and to pay one third of the Commission's costs.
The facts and the judgment of the Court of First Instance
- According to the contested judgment, as from 1980 a number of agreements andpractices, came into being in the welded steel mesh sector on the German, Frenchand Benelux markets. The product concerned is a prefabricated reinforcementproduct made from smooth or ribbed cold-drawn reinforcing steel wires joined
together by right-angle spot welding to form a network which is used in almost allareas of reinforced concrete construction.
- There are various kinds of welded steel mesh, in particular standard mesh,catalogue mesh of the Lettermatten or semi-standardised type, catalogue mesh ofthe Listenmatten type and tailor-made mesh.
- For the German market, on 31 May 1983 the Bundeskartellamt (Federal CartelOffice) granted authorisation for the establishment of a structural crisis cartel ofGerman producers of welded steel mesh which, after being renewed once, expiredin 1988. The purpose of the cartel was to reduce capacity; it also provided fordelivery quotas and price fixing, the latter being authorised, however, only for thefirst two years of its operation. The Commission was notified by theBundeskartellamt in 1983 of the establishment of that structural crisis cartel.
- On 6 and 7 November 1985 Commission officials, acting under Article 14(3) ofRegulation No 17 of the Council of 6 February 1962, First Regulationimplementing Articles 85 and 86 of the Treaty (OJ, English Special Edition1959-1962, p. 87), carried out simultaneous investigations without prior warning atthe premises of seven undertakings and two associations, namely: Tréfilunion SA,Sotralentz SA, Tréfilarbed Luxembourg/Saarbrücken SARL, Ferriere Nord SpA(Pittini), Baustahlgewebe GmbH, Thibo Draad- en Bouwstaalprodukten BV(Thibodraad), NV Bekaert, Syndicat National du Tréfilage d'Acier (STA) andFachverband Betonstahlmatten eV; on 4 and 5 December 1985 they conductedother investigations at the premises of ILRO SpA, GB Martinelli, NV UsinesGustave Boël (Afdeling Trébos), Tréfileries de Fontaine-l'Evêque (TFE),Frère-Bourgeois Commerciale SA (FBC), Van Merksteijn Staalbouw BV and ZNDBouwstaal BV.
- The evidence found in those investigations and the information obtained underArticle 11 of Regulation No 17 led the Commission to conclude that between 1980and 1985 the producers in question had infringed Article 85 of the Treaty througha series of agreements or concerted practices relating to delivery quotas for, andthe prices of, welded steel mesh. The Commission initiated the procedure providedfor in Article 3(1) of Regulation No 17 and, on 12 March 1987, a statement ofobjections was sent to the undertakings concerned, which replied to it. A hearingof their representatives took place on 23 and 24 November 1987.
- At the end of that procedure the Commission adopted its decision in which itimposed on 14 welded steel mesh producers a fine for infringement of Article 85(1)of the Treaty. It is clear from point 22 of the Decision that the restrictions ofcompetition derived from a set of agreements and/or concerted practices fixingprices and delivery quotas and sharing markets for welded steel mesh. Thoseagreements, according to the Decision, concerned different parts of the commonmarket (the French, German or Benelux markets), but affected trade between
Member States because undertakings established in various Member Statesparticipated in them.
- With regard to the facts giving rise to the proceedings before the Court of FirstInstance, it appears from the contested judgment that the Decision criticises theapplicant more particularly:
On the German market,
for participation in agreements concerning trade interpenetration betweenGermany and France with the French undertaking Tréfilunion. Thoseagreements were allegedly concluded during a conversation of 7 June 1985between Mr Müller, a director of the applicant, the legal representative ofthe structural crisis cartel and the President of the FachverbandBetonstahlmatten, and Mr Marie, a director of Tréfilunion and President ofthe Association Française Technique pour le Developpment de l'Emploi desTrellis Soudés (ADETS). In paragraph 63 of the contested judgment, theCourt of First Instance found that the Decision (point 140) held that theapplicant had engaged in general concertation with Tréfilunion to limitmutual penetration of their products in Germany and France (see points135 to 143 and 176 of the Decision and paragraphs 59 to 68 of thecontested judgment);
for having participated in agreements concerning the German marketintended, first, to regulate exports by Benelux producers to Germany and,secondly, to observe the prices in force on the German market (see points147, 178 and 182 of the Decision and paragraphs 83 to 94 of the contestedjudgment);
through a desire to restrict or regulate imports into Germany, for havingconcluded two delivery contracts, on 24 November 1976 and 22 March 1982with Bouwstaal Roermond BV (later Tréfilarbed Bouwstaal Roermond) andArbed SA afdeling Nederland. In those contracts, the applicant took overexclusive sales in Germany, at a price to be fixed according to specificcriteria, of a specified annual volume of welded steel mesh from theRoermond works. Brouwstaal Roermond BV and Arbed SA afdelingNederland undertook, for the term of those contracts, not to make anydirect or indirect deliveries to Germany. The Decision finds that theexclusive distribution agreements did not satisfy the conditions ofCommission Regulation (EEC) No 67/67/EEC of 22 March 1967 on theapplication of Article 85(3) of the Treaty to certain categories of exclusivedealing agreements (OJ, English Special Edition 1967, p. 10), at least sincethe making of the wider arrangements on trade between Germany andBenelux. Since that date those agreements had to be regarded as part of acomprehensive market-sharing arrangement (see points 148 and 189 of theDecision and paragraphs 95 to 109 of the contested judgment);
for having participated in an agreement with Tréfilarbed stopping reimportsof welded steel mesh from the St Ingbert works to Germany viaLuxembourg (see points 152 and 180 of the Decision and paragraphs 110to 122 of the contested judgment);
On the Benelux market,
for having participated in agreements between the German producersexporting to the Benelux States and the other producers selling in theBenelux States concerning observance of prices fixed for the Beneluxmarket. According to the Decision, those agreements were decided on atmeetings held in Breda and Bunnik between August 1982 and November1985. The Decision also criticises the applicant for having participated inagreements between the German producers, on the one hand, and theBenelux producers (the 'Breda club), on the other, consisting in theapplication of quantitative restrictions to German exports to Belgium andthe Netherlands and communication of export figures of certain Germanproducers to the Belgo-Dutch group (see points 78(b), 163, 168 and 171 ofthe Decision and paragraphs 123 to 138 of the contested judgment).
- The operative part of the Decision is as follows: 'Article 1
Tréfilunion SA, Société Métallurgique de Normandie (SMN),Chiers-Châtillon-Gorcy (Tecnor), Société de Treillis et Panneaux Soudés, SotralentzSA, Tréfilarbed SA, or Tréfilarbed Luxembourg/Saarbrücken SARL, TréfileriesFontaine l'Évêque, Frère-Bourgeois Commerciale SA (now Steelinter SA), NVUsines Gustave Boël, Afdeling Trébos, Thibo Draad- en Bouwstaalprodukten BV(now Thibo Bouwstaal BV), Van Merksteijn Staalbouw BV, ZND Bouwstaal BV,Baustahlgewebe GmbH, ILRO SpA, Ferriere Nord SpA (Pittini), and GBMartinelli fu GB Metallurgica SpA have infringed Article 85(1) of the EEC Treatyby participating from 27 May 1980 until 5 November 1985 on one or moreoccasions in one or more agreements or concerted practices (hereinafter referredto as agreements) consisting in the fixing of selling prices, the restricting of sales,the sharing of markets and in measures to implement these agreements and tomonitor their operation.Article 2
The undertakings named in Article 1 which are still involved in the welded steelmesh sector in the Community shall forthwith bring the said infringements to anend (if they have not already done so) and shall henceforth refrain in relation totheir welded steel mesh operations from any agreement or concerted practice whichmay have the same or similar object or effect.Article 3
The following fines are hereby imposed on the undertakings named below inrespect of the infringements found in Article 1:
1. Tréfilunion SA (TU): a fine of ECU 1 375 000;
2. Société Métallurgique de Normandie (SMN): a fine of ECU 50 000;
3. Société des Treillis et Panneaux Soudés (STPS): a fine of ECU 150 000;
4. Sotralentz SA: a fine of ECU 228 000;
5. Tréfilarbed Luxembourg/Saarbrücken SARL: a fine of ECU 1 143 000;
6. Steelinter SA: a fine ECU 315 000;
7. NV Usines Gustave Boël, Afdeling Trébos: a fine of ECU 550 000;
8. Thibo Bouwstaal BV: a fine of ECU 420 000;
9. Van Merksteijn Staalbouw BV: a fine of ECU 375 000;
10. ZND Bouwstaal BV: a fine of ECU 42 000;
11. Baustahlgewebe GmbH (BStG): a fine of ECU 4 500 000;
12. ILRO SpA: a fine of ECU 13 000;
13. Ferriere Nord SpA (Pittini): a fine of ECU 320 000;
14. GB Martinelli fu GB Metallurgica SpA: a fine of ECU 20 000.
- It was in those circumstances that, by application lodged at the Registry of theCourt of Justice on 20 October 1989, the applicant brought an action for theannulment of the Decision and, in the alternative, for a reduction of the fine, andan order that the Commission pay the costs. By orders of 15 November 1989 theCourt of Justice assigned this case and 10 other cases concerning the same decisionto the Court of First Instance pursuant to Article 14 of Council Decision88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of FirstInstance of the European Communities (OJ 1988 L 319, p. 1).
- Those actions were registered under numbers T-141/89 to T-145/89, and T-147/89to T-152/89. By order of 13 October 1992 the Court of First Instance ordered that,
on account of the connection between the above cases, they should be joined forthe purposes of the oral procedure, pursuant to Article 50 of its Rules ofProcedure. In the case under appeal here, the written procedure before the Courtof First Instance was completed on 5 July 1990. On 16 February 1993 the FirstChamber of the Court of First Instance decided, upon hearing the report of theJudge-Rapporteur, to open the oral procedure and to ask the parties to answercertain questions in writing before the hearing. On 18 May 1993 the Report for theHearing was notified to the parties, and they presented oral argument andanswered questions put to them by the Court of First Instance at the hearing on14 to 18 June 1993. The Court of First Instance delivered judgment on 6 April1995.
- In the contested judgment the Court of First Instance held that, having regard tothe fact that the applicant did not participate in an agreement with Tréfilunion forthe purpose of linking their future exports to quotas and to the fact that it did notparticipate in an agreement with Sotralentz on the setting of quotas for the latter'sexports to the German market and having regard to the existence of a mitigatingcircumstance regarding the agreement between the applicant and Tréfilarbedconcerning the cessation of reimports from St Ingbert into Germany, Article 1 ofthe Decision should be partially annulled and the fine of ECU 4.5 million imposedon the applicant should be reduced and set at ECU 3 million. The Court of FirstInstance dismissed the application as regards the remaining heads of claim andordered the applicant to bear its own costs and to pay one third of theCommission's costs.
- In its appeal, the appellant claims that the Court of Justice should:
set aside the contested judgment in so far as it imposes on the appellant afine of ECU 3 million, dismisses its application and orders it to bear its owncosts and to pay one third of the Commission's costs, and declare theproceedings closed;
in the alternative, annul the contested judgment and refer the case back tothe Court of First Instance for the proceedings to be continued;
annul Articles 1, 2 and 3 of the Decision, to the extent to which theyconcern the appellant and were not annulled by the contested judgment;
in the alternative, reduce the fine to a reasonable amount;
order the Commission to pay the costs of the proceedings at first instanceand of the appeal.
- The Commission contends that the Court should dismiss the appeal and order theappellant to pay the costs.
- In support of its appeal, the appellant claims that, because the duration of theproceedings was excessive, the Court of First Instance infringed its right to ahearing within a reasonable time as laid down in Article 6(1) of the Convention forthe Protection of Human Rights and Fundamental Freedoms of 4 November 1950(hereinafter 'the EHRC) and, by delivering its judgment 22 months after the closeof the oral procedure, infringed the general principle of promptitude. Moreover,the Court of First Instance applied an incorrect analytical criterion in assessing theevidence by failing to verify whether the circumstances mentioned by theCommission might have been accounted for otherwise than by the existence of arestrictive agreement and refused to examine the evidence produced by theapplicant. By so doing, the Court of First Instance infringed the principlesapplicable in the taking of evidence. Moreover, the Court of First Instanceinfringed the rights of the defence by rejecting the appellant's request that theCommission be ordered to allow it to consult all the documents of theadministrative procedure and certain documents concerning the German structuralcrisis cartel.
- The appellant also maintains that, as regards definition of the relevant market andthe alleged restrictive agreements
between the applicant and Tréfilunion regarding trade interpenetrationbetween Germany and France,
with the Benelux producers regarding the German market and
on quotas and prices on the Benelux market,
the Court of First Instance infringed Article 85(1) of the Treaty by not properlystating reasons and/or by misdescribing the facts. Also, with regard to the exclusivedistribution contracts concluded between the applicant, on the one hand, andBouwstaal Roermond BV and Arbed SA afdeling Nederland, on the other, theCourt of First Instance did not comply with the conditions for applying RegulationNo 67/67.
- Finally, the applicant claims that, in imposing the fines, the Court of First Instanceinfringed Article 15 of Regulation No 17.
- It must first be observed that, as far as possible procedural irregularities areconcerned, pursuant to Article 168a of the EC Treaty and the first paragraph ofArticle 51 of the EC Statute of the Court of Justice, appeals are limited to pointsof law. According to the latter provision, an appeal may lie on grounds of lack ofcompetence of the Court of First Instance, a breach of procedure before it which
adversely affected the interests of the appellant as well as the infringement ofCommunity law by the Court of First Instance.
- Thus, the Court of Justice has jurisdiction to verify whether a breach of procedureadversely affecting the appellant's interests was committed before the Court of FirstInstance and must satisfy itself that the general principles of Community law andthe Rules of Procedure applicable to the burden of proof and the taking ofevidence have been complied with (see, in particular, the order in Case C-19/95 PSan Marco v Commission  ECR I-4435, paragraph 40).
- It should be noted that Article 6(1) of the EHRC provides that in thedetermination of his civil rights and obligations or of any criminal charge againsthim, everyone is entitled to a fair and public hearing within a reasonable time byan independent and impartial tribunal established by law.
- The general principle of Community law that everyone is entitled to fair legalprocess, which is inspired by those fundamental rights (see in particular Opinion2/94  ECR I-1759, paragraph 33, and judgment in Case C-299/95 Kremzow ECR I-2629, paragraph 14), and in particular the right to legal processwithin a reasonable period, is applicable in the context of proceedings broughtagainst a Commission decision imposing fines on an undertaking for infringementof competition law.
- It is thus for the Court of Justice, in an appeal, to consider pleas on such mattersconcerning the proceedings before the Court of First Instance.
- As regards, next, an allegedly incorrect examination of the facts, it is clear fromArticle 168a of the Treaty and the first paragraph of Article 51 of the EC Statuteof the Court of Justice that the Court of First Instance has exclusive jurisdiction,first to find the facts except where the substantive inaccuracy of its findings isapparent from the documents submitted to it and, second, to assess those facts.When the Court of First Instance has found or assessed the facts, the Court ofJustice has jurisdiction under Article 168a of the Treaty to review the legalcharacterisation of those facts by the Court of First Instance and the legalconclusions it has drawn from them (see, in particular, the order in San Marco vCommission, cited above, paragraph 39).
- The Court of Justice thus has no jurisdiction to find the facts or, as a rule, toexamine the evidence which the Court of First Instance accepted in support ofthose facts. Provided that the evidence has been properly obtained and the generalprinciples of law and the rules of procedure in relation to the burden of proof andthe taking of evidence have been observed, it is for the Court of First Instancealone to assess the value which should be attached to the evidence produced to it(see, in particular, the order in San Marco v Commission, cited above, paragraph40). That appraisal does not therefore constitute, save where the clear sense of that
evidence has been distorted, a point of law which is subject, as such, to review bythe Court of Justice (Case C-53/92 P Hilti v Commission  ECR I-667,paragraph 42).
- However, the question whether the grounds of a judgment of the Court of FirstInstance are contradictory or inadequate is a question of law which is amenable,as such, to judicial review on appeal (see, in particular, Case C-283/90 P Vidrányiv Commission  ECR I-4339, paragraph 29; Case C-188/96 P Commission vV  ECR I-6561, paragraph 24, and Case C-401/96 P Somaco v Commission ECR I-2587, paragraph 53).
The pleas alleging procedural irregularities
Breach of the principle that proceedings must be disposed of within a reasonable time
- The appellant maintains that the time taken by the Court of First Instance to givejudgment is excessive, with the result that Article 6(1) of the ECHR was infringed.The time taken for the proceedings was in no way attributable to the circumstancesof the case but should, on the contrary, be imputed to the Court of First Instance.Such a delay constitutes a Prozeßhindernis (a bar to proceeding with the case)justifying the setting aside of the contested judgment and the annulment of theDecision, and closure of the proceedings. In the alternative, the appellant claimsthat the excessive duration of the administrative, then the judicial, procedure initself constitutes a mitigating factor and a reason for reducing the amount of thefine by virtue of the principle of the reduction of penalties recognised both in thelegal orders of the Member States and by the case-law of the Court of FirstInstance.
- The Commission denies that the procedure was of excessive duration and considersthat, even though the procedure before the Court of First Instance might haveappeared protracted, it cannot constitute a bar to proceeding with the case.
- First, it must be noted that the proceedings being considered by the Court ofJustice in this case, in order to determine whether a procedural irregularity wascommitted to the detriment of the appellant's interests, commenced on 20 October1989, the date on which the application for annulment was lodged, and closed on6 April 1995, the date on which the contested judgment was delivered.Consequently, the duration of the proceedings now being considered by the Courtof Justice was about five years and six months.
- It must first be stated that such a duration is, at first sight, considerable. However,the reasonableness of such a period must be appraised in the light of thecircumstances specific to each case and, in particular, the importance of the casefor the person concerned, its complexity and the conduct of the applicant and ofthe competent authorities (see, by analogy, the judgments of the European Court
of Rights in the cases of Erkner and Hofauer of 23 April 1987, Series A No 117, §66; Kemmache of 27 November 1991, Series A No 218, § 60; Phocas v France of23 April 1996, Recueil des arrêts et décisions 1996-II, p. 546, § 71, and GaryfallouAEBE v Greece of 27 September 1997, Recueil des arrêts et décisions 1997-V,p. 1821, § 39).
- As regards the importance of the proceedings to the appellant, it must beemphasised that its economic survival was not directly endangered by theproceedings. The fact nevertheless remains that, in the case of proceedingsconcerning infringement of competition rules, the fundamental requirement of legalcertainty on which economic operators must be able to rely and the aim of ensuringthat competition is not distorted in the internal market are of considerableimportance not only for an applicant himself and his competitors but also for thirdparties in view of the large number of persons concerned and the financial interestsinvolved.
- The appellant was exposed to the risk, under Article 15(2) of Regulation No 17,of a fine of up to 10% of its turnover in the preceding business year. In this case,under Articles 3 and 4 of the Decision, the Commission imposed on the applicanta fine of ECU 4.5 million payable within a period of three months following itsnotification, together with default interest at the rate of 12.5% per annum after thatperiod.
- In that connection, Article 192 of the EC Treaty provides, in particular, thatCommission decisions which impose a pecuniary obligation on persons other thanStates are to be enforceable and that enforcement is to be governed by the rulesof civil procedure in the State in the territory of which it is carried out. Under thecombined provisions of Articles 185, 186 and 192 of the EC Treaty and Article 4of Decision 88/591, applications to the Court of First Instance do not havesuspensory effect; the Court of First Instance may, if it considers that thecircumstances so require, order that application of the contested act be suspended,prescribe any interim measures which may be necessary and, if appropriate,suspend enforcement.
- In this case, it is clear from documents before the Court that no measure torecover the fine was taken in the course of the Court proceedings because theappellant furnished a bank guarantee, as required by the Commission. Such a factcannot, however, deprive the appellant of its right to fair legal process within areasonable period and in particular to a decision on the merits of the allegationsof infringement of competition law made against it by the Commission and of thefines imposed on it in that regard.
- In view of all those circumstances, it must be held that the procedure before theCourt of First Instance was of genuine importance to the appellant.
- As regards the complexity of the case, it must be borne in mind that, in its decision,the Commission concluded that 14 manufacturers of welded steel mesh hadinfringed Article 85 of the Treaty by a series of agreements or concerted practicesconcerning delivery quotas and the prices of that product. The appellant'sapplication was one of 11, submitted in three different languages, which wereformally joined for the purposes of the oral procedure.
- In that regard, it is clear from the documents before the Court and from thecontested judgment that the procedure concerning the appellant called for adetailed examination of relatively voluminous documents and points of fact and lawof some complexity.
- As regards the conduct of the appellant before the Court of First Instance, itappears from the file that the time-limit for submitting a rejoinder was, at itsrequest, extended by about one month.
- In that connection, the Commission's argument that the procedure before the Courtof First Instance was delayed because the appellant's lawyer did not initially takepart in the administrative procedure before the Commission and that he thenfocused the major part of his arguments, ill-advisedly, on the fine which theCommission had imposed on it for participating in the structural crisis cartel cannotbe upheld.
- An undertaking which is the subject of a Commission decision finding infringementsof competition law and imposing fines on it must be able to contest by all meanswhich it considers appropriate the merits of the charges made against it.
- It has not thus been established that the appellant contributed, in any significantway, to the protraction of the proceedings.
- As regards the conduct of the competent authorities, it must be borne in mind thatthe purpose of attaching the Court of First Instance to the Court of Justice and ofintroducing two levels of jurisdiction was, first, to improve the judicial protectionof individual interests, in particular in proceedings necessitating close examinationof complex facts, and, second, to maintain the quality and effectiveness of judicialreview in the Community legal order, by enabling the Court of Justice toconcentrate on its essential task, namely to ensure that in the interpretation andapplication of Community law the law is observed.
- That is why the structure of the Community judicial system justifies, in certainrespects, the Court of First Instance, which is responsible for establishing the factsand undertaking a substantive examination of the dispute, being allowed a relativelylonger period to investigate actions calling for a close examination of complex facts.However, that task does not relieve the Community court established especially forthat purpose from the obligation of observing reasonable time-limits in dealing withcases before it.
- Account must also be taken of the constraints inherent in proceedings before theCommunity judicature, associated in particular with the use of languages providedfor in Article 35 of the Rules of Procedure of the Court of First Instance, and ofthe obligation, laid down in Article 30(2) of those rules, to publish judgments in thelanguages referred to in Article 1 of Regulation No 1 of the Council of 15 April1958 determining the languages to be used by the European Economic Community(OJ, English Special Edition Series I (1952-1958), p. 59).
- However, it must be held that the circumstances of this case are not such as toindicate that constraints of that kind can provide justification for the time which theproceedings took before the Court of First Instance.
- It must be emphasised, as far as the principle of a reasonable time is concerned,that two periods are of significance with respect to the proceedings before theCourt of First Instance. Thus, about 32 months elapsed between the end of thewritten procedure and the decision to open the oral procedure. Admittedly, it wasdecided by order of 13 October 1992 to join the 11 cases for the purposes of theoral procedure. It must be pointed out, however, that, in that period, no othermeasure of organisation of procedure or of inquiry was adopted. In addition, 22months elapsed between the close of the oral procedure and the delivery of thejudgment of the Court of First Instance.
- Even if account is taken of the constraints inherent in proceedings before theCommunity judicature, investigation and deliberations of such a duration can bejustified only by exceptional circumstances. Since there was no stay of theproceedings before the Court of First Instance, under Articles 77 and 78 of itsRules of Procedure or otherwise, it must be concluded that no such circumstancesexist in this case.
- In the light of the foregoing considerations, it must be held, notwithstanding therelative complexity of the case, that the proceedings before the Court of FirstInstance did not satisfy the requirements concerning completion within a reasonabletime.
- For reasons of economy of procedure and in order to ensure an immediate andeffective remedy regarding a procedural irregularity of that kind, it must be heldthat the plea alleging excessive duration of the proceedings is well founded for thepurposes of setting aside the contested judgment in so far as it set the amount ofthe fine imposed on the appellant at ECU 3 million.
- However, in the absence of any indication that the length of the proceedingsaffected their outcome in any way, that plea cannot result in the contestedjudgment being set aside in its entirety.
Breach of the principle of promptitude
- The appellant submits that the Court of First Instance infringed the generalprinciple of Community law requiring prompt determination of judicial proceedingsby giving judgment 22 months after the close of the oral procedure, the delayinvolved being such that the usefulness of that procedure was negated by the lossof any recollection of it on the part of the Judges. It submits essentially, that theprinciple of orality of proceedings calls for promptness in the conduct of theproceedings. This, in line with the codes of civil and criminal procedure in amajority of the Member States, involves an obligation on the part of the Court ofFirst Instance to deliberate immediately after the hearing of a case and to deliverits judgments shortly after the hearing.
- The Commission contends that the principle of prompt conduct of proceedings, asinterpreted by the appellant, does not exist in Community law, with the result thatthis plea must be rejected.
- It must be noted, first, that, contrary to the appellant's submission at the hearing,neither Article 55(1) of the Rules of Procedure of the Court of First Instance norany other provision of those rules or of the EC Statute of the Court of Justiceprovides that the judgments of the Court of First Instance must be delivered withina specified period after the oral procedure.
- Also, it must be emphasised that the appellant has not established that the durationof the deliberations had any impact on the outcome of the proceedings before theCourt of First Instance, in particular as far as any impairment of evidence isconcerned.
- In those circumstances, this plea must be rejected as unfounded.
Breach of the principles applicable in the taking of evidence
- The appellant claims that the Court of First Instance, first, used an incorrectcriterion in appraising the evidence in that it merely verified whether theCommission had established the appellant's participation in the restrictiveagreements, without taking account of the appellant's submissions, and theninfringed the rules concerning time-limits by rejecting as out of time offers toadduce oral evidence. By merely examining the Commission's submissions and byrefusing to examine the evidence offered by the appellant, the Court of FirstInstance failed to comply with its duty to investigate and infringed the right to fairlegal process as well as the principles of unfettered appraisal of evidence and of thebenefit of the doubt.
- As regards the first point, the appellant essentially criticises the Court of FirstInstance for having failed to verify whether the facts presented by the Commission
could be accounted for otherwise than by the existence of a restrictive agreement,even though the appellant submitted another plausible and coherent explanation.
- The Commission contends that this complaint in fact constitutes a request for re-examination of the facts.
- In so far as this complaint does not relate to the findings of fact made by the Courtof First Instance, it must be pointed out that, where there is a dispute as to theexistence of an infringement of the competition rules, it is incumbent on theCommission to prove the infringements found by it and to adduce evidence capableof demonstrating to the requisite legal standard the existence of the circumstancesconstituting an infringement.
- However, there is no ground for finding that the Court of First Instance failed toconsider evidence submitted by the appellant when examining that submitted by theCommission. It is clear, first, from paragraphs 64 to 67 of the contested judgmentthat, with regard to the agreement between the appellant and Tréfilunion, theCourt of First Instance, on the basis of an analysis of the memoranda produced bythe Commission, concluded that the Commission had established to the requisitelegal standard only two of the three alleged instances of concertation. Next,paragraphs 90 to 92 of the contested judgment, concerning agreements on quotasand prices with the Benelux producers, paragraphs 115 to 118 relating to theagreement between the appellant and Tréfilarbed and paragraphs 131 to 136concerning price and quota agreements on the Benelux market show that the Courtof First Instance, in taking account of the appellant's arguments, undertook anexamination of the facts presented by the Commission and concluded that theCommission had established to the requisite legal standard that the appellant hadparticipated in the agreements in question.
- As regards the second point, the appellant complains that the Court of FirstInstance misinterpreted its Rules of Procedure when rejecting the evidence offeredby it as being out of time. The appellant does not deny that its offers of evidencewere made for the first time in its reply. On the other hand, it claims that theevidence produced at the stage of the reply was neither new nor out of time for thepurposes of Article 48(1) of the Rules of Procedure of the Court of First Instancesince it proposed in its reply that witnesses be heard and that it should make apersonal appearance in order to contradict the evidence relied on by theCommission in its defence.
- The appellant also maintains that the duty to investigate and the principlesgoverning inter partes proceedings and that of fair legal process require the Courtof First Instance to accede to offers of evidence, except in certain limitedcircumstances whose existence has not been demonstrated in this case. It contendsthat the rejection of its offer to provide oral testimony and make a personalappearance meant that the evidence was appraised prematurely and adds that,
even if no evidence had been offered, the inquisitorial principle requires the Courtof First Instance, particularly in proceedings which may lead to fines, to take theinitiative to extend its investigation to all forms of evidence available to it and toendeavour to obtain the best possible evidence.
- The Commission contends that the Court of First Instance acted in accordance withits settled case-law in considering that the offers of evidence which were made forthe first time in the reply were submitted belatedly and that reasons had thereforeto be given for the delay.
- It must first be borne in mind that, to provide evidence in support of its assertions,the appellant requested, in its application to the Court of First Instance, that itslegal adviser, Mr Pillmann, should be heard as a witness and, in its reply, that theappellant itself should appear in the person of a person legally entitled to representit, Mr Müller, and that Mr Broekman, the former president of the Beneluxproducers, should be heard as a witness.
- It is clear from the documents before the Court that, at its meeting held on 18 and24 March 1993, the Court of First Instance decided to put questions to the parties.Having regard to the appellant's request to be heard and having regard to fourtelex messages of 15 December 1983, 11 January, 4 March and 4 April 1984, theappellant was invited to 'indicate the precise and factual reasons which [promptedit] to contradict the apparent content of the documents mentioned, as well asgenerally rejecting it in its pleadings.
- At its meeting held on 13 and 17 May 1993, the Court of First Instance decided toobtain the observations of the parties as to the possible hearing of Messrs Müllerand Broekman as witnesses and as to the personal appearance at the hearing of theapplicants Boël, Steelinter and Tréfilunion in the person of representatives apprisedof the contacts which had taken place at the material time.
- By letter of 19 May 1993, the Commission opposed the hearing of theabovementioned witnesses on the ground that they were, in any event, therepresentatives of the undertakings concerned by the Decision. On 26 May 1993the Court of First Instance decided to reserve its decision as to a hearing ofwitnesses.
- In paragraph 68 of the contested judgment, the Court of First Instance found thatthere was no need to hear witnesses or order a personal appearance of theappellant. In paragraphs 94, 120 and 138 of the same judgment, the Court of FirstInstance, pursuant to Article 48(1) of its Rules of Procedure, rejected the offers oforal evidence from witnesses and of appearance by the appellant on the groundthat those offers of evidence, put forward in the reply, were out of time and theappellant had not pleaded any circumstances that had prevented it from submittingthem in its application.
- Having regard to the circumstances, the determination made by the Court of FirstInstance of the relevance of hearing evidence from Messrs Pillmann and Müllerregarding the agreement between Baustahlgewebe and Tréfilunion cannot be calledin question.
- As regards the refusal by the Court of First Instance to hear Messrs Müller andBroekman on the ground that the offer of evidence was out of time, it must beobserved that Article 68(1) of the Rules of Procedure of the Court of First Instanceprovides that the latter may, either of its own motion or on application by a party,and after hearing the parties, order that certain facts be proved by witnesses. Anapplication by a party for the examination of a witness must state precisely aboutwhat facts and for what reasons the witness should be examined. Article 44(1)(e)of the Rules of Procedure of the Court of First Instance provides that theapplication must state, where appropriate, the nature of any evidence offered.
- Where a request for the examination of witnesses, made in the application, statesprecisely about what facts and for what reasons the witness or witnesses should beexamined, it then falls to the Court of First Instance to assess the relevance of theapplication to the subject-matter of the dispute and the need to examine thewitnesses named.
- Pursuant to Article 48(1) of the Rules of Procedure of the Court of First Instance,the parties may offer further evidence in support of their arguments in reply orrejoinder. They must give reasons for the delay in offering it.
- Thus, evidence in rebuttal and the amplification of the offers of evidence submittedin response to evidence in rebuttal from the opposite party in his defence are notcovered by the time-bar laid down in Article 48(1) of the Rules of Procedure. Thatprovision concerns offers of fresh evidence and must be read in the light of Article66(2), which expressly provides that evidence may be submitted in rebuttal andprevious evidence may be amplified.
- However, as regards the offers in this case of oral testimony from Mr Broekmanand appearance by the appellant itself, it need only be pointed out that it is clearfrom the documents before the Court that the evidence relied on by theCommission in its defence had already been mentioned in the Decision and in thestatement of objections or annexes thereto and had been produced by the appellantitself in Annex 3 to its application to the Court of First Instance. Similarly, asregards the statements by Mr Müller at the hearing before the Commission on 24November 1987, to which the Court of First Instance referred in paragraphs 92 and135 of the contested judgment, it is established that they appeared in the minutesof that meeting which had also been produced by the appellant itself as Annex 9to its application to the Court of First Instance.
- Consequently, it must be held that the requests for Mr Broekman to be examinedas a witness and for the appellant to be allowed to appear itself in the person ofthe officer legally entitled to represent it, Mr Müller, cannot be regarded as offersof evidence in rebuttal and that the applicant was in a position to make thoserequests in its application to the Court of First Instance.
- In those circumstances, the Court of First Instance was right in considering that theoffers of evidence submitted in the reply were out of time and in refusing them onthe ground that the appellant had not given reasons for the delay in submittingthem.
- Furthermore, the appellant's argument that the Court of First Instance was inbreach of a duty of investigation incumbent upon it must be rejected, since it iscommon ground that it adopted measures of organisation of procedure to facilitatethe taking of evidence and to clarify the arguments of the parties, in accordancewith Article 64(2) of its Rules of Procedure.
- Finally, it must be emphasised that the Court of First Instance cannot be requiredto call witnesses of its own motion, since Article 66(1) of its Rules of Proceduremakes clear that it is to prescribe such measures of inquiry as it considersappropriate by means of an order setting out the facts to be proved.
- Consequently, the plea that the Court of First Instance infringed the rules ofevidence must be rejected.
Infringement of the right to consult certain documents
- The appellant claims that the Court of First Instance infringed the rights of thedefence by refusing to accede to its request that all the documents in theadministrative procedure be produced, even though the right of access to the filederives from a fundamental principle of Community law which must be observedin all circumstances. Thus, the Commission is under an obligation to grant toundertakings involved in a proceeding under Article 85(1) of the Treaty access toall documents, whether favourable or unfavourable to them, gathered in the courseof the investigation. Those principles also apply in proceedings before the Courtof First Instance where documents which might be relevant to the applicant's casewere not disclosed to it in the administrative procedure. In any event, the appellantconsiders that the Court of First Instance was not entitled to reject its request forproduction of documents on the ground that it had put forward nothing to showthat those documents were relevant to its case. A party and its advisers cannotappraise the importance of a document to that party's case until they are aware ofits existence and content.
- Moreover, the appellant maintains that the Court of First Instance infringed theright to a fair hearing by refusing to order the production of documents concerningthe German structural crisis cartel.
- The Commission states that, as regards the request for access to all the proceduraldocuments, the Court of First Instance was right to hold that the appellant hadsubmitted nothing to show that those documents were relevant to its case. Asregards the documents relating to the structural crisis cartel, a proceduralirregularity of that kind cannot form the subject of an appeal since it is not suchas to impair the appellant's interests and involves widening the subject-matter ofthe dispute submitted to the Court of First Instance, and is therefore inadmissiblein an appeal.
- First, as regards the objection of inadmissibility raised by the Commission, it needmerely be stated that, first, the question whether the existence of the Germanstructural crisis cartel influenced the Decision was argued before the Court of FirstInstance and, second, the appellant alleges before this Court that the crisis cartelinfluenced at least the amount of the fines imposed. Accordingly, on this point,there is no question of a widening of the subject-matter of the dispute referred tothe Court of First Instance. The plea based on entitlement to consult thedocuments concerning the crisis cartel is therefore admissible.
- Next, as far as access to the documents is concerned, it is clear from paragraph 23of the contested judgment that the Commission, in the course of the administrativeprocedure, disclosed to the appellant the documents which were of direct orindirect concern to it, apart from those which were confidential, at the same timereminding the appellant that, for the preparation of its observations, it was entitled,subject to authorisation, to examine other documents held by the Commission.
- It is clear from paragraph 28 of the contested judgment and from the documentsbefore the Court that the appellant's newly appointed lawyer maintained before theCommission that he was still entitled to consult the file after adoption of theDecision. Correspondence exchanged between the parties shows that theCommission reminded the appellant that it had forwarded to it, as an annex to thestatement of objections, the documents on which the latter was based. By fax of 11October 1989, the Commission submitted a list of all the documents in the filewhich related to the appellant and offered to send it a copy of them. Following thatoffer, the appellant, by fax of 16 October 1989 requested, first, that it be sent thereport and the file concerning the inspection carried out on 6 and 7 November1985 at its offices and the one relating to the inspection carried out on the samedates at the offices of the Fachverband Betonstahlmatten, and, second, that it alsobe authorised to consult the minutes and other documents by which theBundeskartellamt had informed the Commission of the existence in Germany of astructural crisis cartel. The Commission did not, however, react to that request untilthe application was lodged.
- In its application, the appellant therefore asked the Court of First Instance to orderthe Commission to allow it to consult (a) all the procedural documents of concernto it, (b) all the documents, correspondence, minutes and memoranda relating tothe Bundeskartellamt's report to the Commission on the existence of the structuralcrisis cartel and (c) all the documents, papers, minutes and memoranda concerningthe trilateral negotiations between the Commission, the Bundeskartellamt and therepresentatives of the members of the German structural crisis cartel.
- The Court of First Instance considered, as stated in paragraph 33 of the contestedjudgment, that the appellant was to be deemed to be requesting a measure oforganisation of procedure, as provided for in Article 64(3)(d) of its Rules ofProcedure.
- In paragraph 34 of the contested judgment, the Court of First Instance rejected therequest for access to the Commission's file on the ground that the appellant hadnot denied receiving, in the course of the administrative procedure before theCommission, all the documents from the file that were of direct or indirect concernto it and on which the statement of objections was based and that it had notproduced any evidence to show that other documents were relevant to its defence.Accordingly, it considered that the appellant had been given the opportunity to putforward, as it wished, its views on all the objections made by the Commissionagainst it in the statement of objections which was addressed to it and on theevidence supporting those objections, mentioned by the Commission in thestatement of objections or in the annexes thereto, and that, accordingly, the rightsof the defence had been safeguarded. The Court of First Instance concluded that,both in preparing the application and in the proceedings before the Court of FirstInstance, the appellant's lawyers had an opportunity to examine the legality of theDecision in full knowledge of the circumstances and fully to provide for theappellant's defence.
- In paragraph 35 of the contested judgment the Court of First Instance also rejectedthe request for production of documents concerning the German structural crisiscartel on the ground that the appellant had not claimed that, through not havingsuch documents at its disposal, it was unable to defend itself against the objectionsraised against it and that it had adduced no evidence to show how such documentsmight contribute to determination of the dispute. The Court of First Instance addedthat, in any event, the evidence was unconnected with the subject-matter of theproceedings.
- In that regard, it must be observed that access to the file in competition cases isintended in particular to enable the addressees of a statement of objections toacquaint themselves with the evidence in the Commission's file so that they canexpress their views effectively on the basis of that evidence on the conclusionsreached by the Commission in its statement of objections (Case 322/81 Michelin vCommission  ECR 3461, paragraph 7; Case 85/76 Hoffmann-La Roche v
Commission  ECR 461, paragraphs 9 and 11; and Case C-310/93 P BPBIndustries and British Gypsum v Commission  ECR I-865, paragraph 21).
- However, contrary to the appellant's assertion, the general principles of Communitylaw governing the right of access to the Commission's file do not apply, as such, tocourt proceedings, the latter being governed by the EC Statute of the Court ofJustice and by the Rules of Procedure of the Court of First Instance.
- Under Article 21 of the EC Statute of the Court of Justice, the Court of Justicemay require the parties to produce all documents and supply all information whichit considers desirable. Article 64(1) of the Rules of Procedure of the Court of FirstInstance provides 'the purpose of measures of organisation of procedure shall beto ensure that cases are prepared for hearing, procedures carried out and disputesresolved under the best possible conditions.
- Under Article 64(2)(a) and (b) of the Rules of Procedure of the Court of FirstInstance, the purpose of measures of organisation of procedure is in particular toensure efficient conduct of the written and oral procedure and to facilitate thetaking of evidence, and also to determine the points on which the parties mustpresent further argument or which call for measures of inquiry. Under Article64(3)(d) and (4), those measures may be proposed by the parties at any stage ofthe procedure and may consist in requesting the production of documents or anypapers relating to the case.
- It follows that the appellant was entitled to ask the Court of First Instance to orderthe opposite party to produce documents which were in its possession.Nevertheless, to enable the Court of First Instance to determine whether it wasconducive to proper conduct of the procedure to order the production of certaindocuments, the party requesting production must identify the documents requestedand provide the Court with at least minimum information indicating the utility ofthose documents for the purposes of the proceedings.
- It must be held that it is clear from the contested judgment and from thedocuments before the Court of First Instance that, although the Commissionsubmitted to it a list of all the documents in the file concerning it, the appellant didnot sufficiently identify, in its request to the Court of First Instance, the documentsin the file of which it sought production. As regards the documents concerning theGerman structural crisis cartel, although the appellant criticised the Commissionfor deciding that its participation in the cartel was an aggravating factor, itnevertheless did not give any information as to how the documents asked for mightbe useful to it.
- The Court of First Instance was therefore right, in paragraphs 34 and 35 of thecontested judgment, to reject the request for the production of documents.Accordingly, this plea must be rejected as unfounded.
The pleas as to infringement of Article 85(1) of the Treaty
Delimitation of the market
- The appellant submits that the Court of First Instance did not give an adequatestatement of reasons in the part of the judgment dealing with definition of therelevant market. It claims in particular that, contrary to what the Court of FirstInstance stated in paragraphs 38 and 40 of the contested judgment, it neverasserted at the hearing that it could manufacture standard mesh on its machinesor that the catalogue mesh and standard mesh were interchangeable. In thosecircumstances, the market could not be defined as including both types of mesh.
- The Commission considers that, by this plea, the appellant is seeking to obtainfrom the Court of Justice a review of the finding of facts made by the Court ofFirst Instance.
- It must be pointed out that, in so far as this plea alleges an inadequate statementof reasons in the contested judgment, it is admissible in an appeal.
- In that connection, it need merely be stated that the Court of First Instance, indefining the relevant market, observed in paragraph 39 of the contested judgmentthat the prices of standard mesh and of Listenmatten were not far removed fromeach other. It also found, in paragraph 40 of the contested judgment, that itbecame clear at the hearing that the use of standard mesh on certain sites wheretailor-made mesh was normally to be used was in fact possible where the price ofstandard mesh was so low that the prime contractor could be assured of asignificant saving, covering the additional costs and compensating for the technicaldisadvantages arising from the change of material, and that such a situation existedfor part of the period covered by the agreements.
- The Court of First Instance therefore explained, to the requisite legal standard, thereasons for which circumstances associated with price levels might encourageeconomic operators to use standard mesh instead of catalogue mesh, thus defininga market common to both products.
- The plea alleging an inadequate statement of the reasons relating to definition ofthe market must therefore be rejected as unfounded.
The agreements between the appellant and Tréfilunion
- The appellant maintains that the contested judgment does not disclose the reasonsfor which the agreements concluded with Tréfilunion constituted an infringementof Article 85(1) of the Treaty and criticises the Court of First Instance for notcharacterising the facts in the light of the conditions laid down by that provision.
- In support of this plea, the appellant claims that the Court of First Instance, first,failed to examine the argument that Tréfilunion's commitment not to complain tothe Commission about the German structural crisis cartel did not constitute arestriction of competition and, second, did not rule whether the appellant'scommitment not to export catalogue mesh to France for two or three months wascapable of producing such a restriction or of appreciably affecting trade betweenMember States.
- The Commission considers that the Court of First Instance properly characterisedthe facts concerned by considering them in the light of the applicable rule.
- In that connection, it should be noted that, in paragraph 63 of the contestedjudgment, the Court of First Instance found that the Decision held that theapplicant had engaged 'in general concertation with Tréfilunion to limit mutualpenetration of their products in Germany and France. That concertation wasmanifested in three ways: (1) Tréfilunion would not lodge a complaint with theCommission against the German structural crisis cartel; (2) the appellant's worksin Gelsenkirchen would not export catalogue mesh to France for a period of twoto three months; (3) the two parties agreed to make their future exports subject toquotas.
- On the basis of an analysis of two internal memoranda drawn up on 16 July 1985by Mr Marie and on 27 August 1985 by Mr Müller, the Court of First Instanceconcluded that the Commission had established to the requisite legal standardTréfilunion's commitment not to lodge a complaint against the German structuralcrisis cartel and the appellant's undertaking not to export catalogue mesh to Francefor a period of two to three months. On the other hand, the Court of FirstInstance held that the Commission had not established to the requisite legalstandard the existence of an agreement intended to make their future exportssubject to quotas.
- It must be emphasised that the Court of First Instance took the view, in paragraph64 of the contested judgment, that Mr Marie's commitment not to lodge acomplaint against the German structural crisis cartel should be seen as a course ofconduct towards a competitor that was followed in exchange for concessions fromthat competitor, forming part of an arrangement in breach of Article 85(1) of theTreaty.
- By holding that that commitment, and the appellant's agreement not to exportcatalogue mesh to France for two to three months, formed part of a generalconcertation regarding reciprocal penetration of their products in Germany and inFrance, the Court of First Instance was entitled to conclude that the Commissioncommitted no error in considering that the applicant had taken part in a restrictivearrangement contrary to Article 85(1) of the Treaty.
- In the absence of any evidence to show a manifest error of assessment on the partof the Court of First Instance, this plea must be rejected as unfounded.
The agreements on quotas and prices on the Benelux market and, with the Beneluxproducers, on the German market
- The appellant maintains that the Court of First Instance misapplied Article 85(1)of the Treaty by failing to take account of important evidence put before it andasserts that the Court of First Instance ignored the fact that its staff had taken partin producers' meetings only as representatives of the companies involved in thestructural crisis cartel or the Fachverband Betonstahlmatten, and not asrepresentatives of the appellant. It adds, with regard to the Benelux market, thatthe reasons given in the judgment are contradictory since mere participation in ameeting at which other undertakings concluded a price agreement cannot constitutean infringement of Article 85 where the undertaking does not itself distribute theproducts covered by the agreement.
- The Commission considers that the complaints made by the appellant seek tochallenge the appraisal made by the Court of First Instance of the evidence putbefore it, which does not, unless the sense of such evidence has been distorted,constitute a point of law reviewable by the Court of Justice. It adds that no suchdistortion has been proved. Finally, it contends that the reasons given in thejudgment of the Court of First Instance are not contradictory.
- In that connection, it must be pointed out, as indicated by the Advocate Generalin points 200 and 246 of his Opinion, that the appellant essentially does no morethan reproduce long passages from the answers which it gave to the questions putto it by the Court of First Instance, thereafter concluding, as it did before the Courtof First Instance, that the documents at issue show that Mr Müller acted as arepresentative of the Fachverband Betonstahlmatten and of the supervisory boardof the German structural crisis cartel and not as chairman of the appellant's boardof directors.
- It must be pointed out that it is clear from Articles 168a of the Treaty, 51 of theEC Statute of the Court of Justice and 112(1)(c) of the Rules of Procedure that anappeal must indicate precisely the contested elements of the judgment which theappellant seeks to have set aside and also the legal arguments specifically advancedin support of the appeal. That requirement is not satisfied by an appeal whichconfines itself to repeating or reproducing word for word the pleas in law andarguments previously submitted to the Court of First Instance, including thosebased on facts expressly rejected by it. Such an appeal amounts in reality to nomore than a request for re-examination of the application submitted to the Courtof First Instance, which the Court of Justice does not have jurisdiction to undertake(order in San Marco v Commission, cited above, paragraphs 36 to 38).
- Even where the appeal does not thus repeat or reproduce earlier pleas andarguments, it is in fact intended to secure a re-examination of the appraisal of thefacts by the Court of First Instance.
- It follows that these pleas must be declared inadmissible.
Non-application of Regulation No 67/67 to the exclusive distribution contracts
- According to the appellant, the Court of First Instance did not show that theexclusive distribution contracts concluded between, on the one hand, the appellantand, on the other, Bouwstaal Roermond BV and Arbed SA afdeling Nederlandinvolved any prohibition of parallel imports and did not express any view on theCommission's tolerance of those contracts which had been submitted to it when theLuxembourg and Saarland steel industry was reorganised.
- The Commission contends that the argument as to the absence of any prohibitionof parallel imports is concerned with findings of fact by the Court of First Instanceand the argument concerning tolerance shown by the Commission regarding thecontracts at issue constitutes a new plea.
- The appellant's argument that it was not demonstrated that the contracts which itconcluded with Bouwstaal Roermond BV and Arbed SA afdeling Nederlandinvolved a prohibition of parallel imports must be rejected since, as indicated bythe Advocate General in points 210 to 223 of his Opinion, it seeks to call inquestion the findings of fact made by the Court of First Instance.
- As regards the appellant's argument that the Court of First Instance failed toexpress a view on the Commission's tolerance of the contracts at issue, it must bestated, as pointed out by the Advocate General in points 228 to 232 of his Opinion,that the arguments put to the Court of First Instance on that point were no morethan imprecise assertions which were not substantiated in any way. The Court ofFirst Instance cannot therefore be criticised for failing to express a view on them.
- This plea must therefore be rejected.
The pleas alleging infringement of Article 15 of Regulation No 17
- The possibility of imposing fines for infringements of Article 85(1) of the Treaty isexpressly provided for in Article 15(2) of Regulation No 17, according to which:
'The Commission may by decision impose on undertakings or associations ofundertakings fines of from 1 000 to 1 million units of account, or a sum in excessthereof but not exceeding 10% of the turnover in the previous business year of
each of the undertakings participating in the infringement where, eitherintentionally or negligently:
(a) they infringe Article 85(1) ...
In fixing the amount of the fine, regard shall be had both to the gravity and to theduration of the infringement.
- First, the appellant complains that the Court of First Instance erred in law in itsassessment of the mitigating and aggravating circumstances surrounding theinfringements. In its submission, the Court of First Instance wrongly considered thatthe Commission had carried out an individual assessment of the criteria fordetermining the gravity of the infringements. The appellant claims in particular thatboth the Commission and the Court of First Instance treated its participation in thestructural crisis cartel as an aggravating circumstance for the purpose of fixing thefine. Moreover, the fine imposed on the appellant is disproportionate since certainmitigating circumstances were not taken into consideration.
- The Commission replies that that complaint is inadmissible, in so far as it involvesrepeating arguments relied on by the appellant before the Court of First Instance.As regards the German structural crisis cartel, the Commission considers that theCourt of First Instance gave reasons why the choice made in the Decision not totreat its existence as a mitigating factor in the appellant's case was justified.
- Secondly, the appellant claims that no account was taken of its ignorance of theillegality of the German structural crisis cartel and of the action taken to protectit.
- On this point, the Commission considers that complaint to be inadmissible since itis made for the first time in the appeal.
- Finally, the appellant seeks, in the alternative, reduction of the fine to a reasonableamount.
- The Commission contends that it is not for the Court of Justice to substitute itsassessment, on grounds of fairness, for that of the Court of First Instance.
- In the first place, it must be borne in mind that the Court of First Instance alonehas jurisdiction to examine how in each particular case the Commission appraisedthe gravity of unlawful conduct. In an appeal, the purpose of review by the Courtof Justice is, first, to examine to what extent the Court of First Instance took intoconsideration, in a legally correct manner, all the essential factors to assess thegravity of particular conduct in the light of Article 85 of the Treaty and Article 15of Regulation No 17 and, second, to consider whether the Court of First Instance
responded to a sufficient legal standard to all the arguments raised by the appellantwith a view to having the fine cancelled or reduced (see, on the latter point, CaseC-219/95 P Ferriere Nord v Commission  ECR I-4411, paragraph 31).
- As regards the allegedly disproportionate nature of the fine, it must be borne inmind that it is not for the Court of Justice, when ruling on questions of law in thecontext of an appeal, to substitute, on grounds of fairness, its own assessment forthat of the Court of First Instance exercising its unlimited jurisdiction to rule on theamount of fines imposed on undertakings for infringements of Community law(BPB Industries and British Gypsum v Commission, cited above, paragraph 34, andFerriere Nord v Commission, cited above, paragraph 31). This complaint musttherefore be declared inadmissible in so far as it seeks a general re-examination ofthe fines or, in the alternative, to have the fine reduced to a reasonable amount.The same applies to the complaint, not made by the appellant before the Court ofFirst Instance, concerning its alleged ignorance of the illicit nature of the conductdesigned to defend the German structural crisis cartel, as pointed out by theAdvocate General in point 286 of his Opinion.
- As regards the question of failure to take account of the mitigating and aggravatingcircumstances, it need only be pointed out, first, that the contested judgmentsummarises the infringements committed by the appellant and particularises itsconduct and its role in the establishment or operation of each of the agreements.
- The Court of First Instance then considered, in paragraph 146 of the contestedjudgment, that the Decision, read as a whole, had provided the appellant with theinformation necessary for it to identify the different infringements with which it wascharged, together with the specific features of its conduct and, more particularly,information concerning the duration of its participation in the variousinfringements. The Court of First Instance also found that, in its legal assessmentin the Decision, the Commission set out the various criteria by which it measuredthe gravity of the infringements imputed to the appellant and the variouscircumstances which had mitigated the economic consequences of theinfringements.
- Moreover, as regards the aggravating circumstances imputed to the appellant, theCourt of First Instance found, in paragraph 149 of the contested judgment, that theappellant had not in any way countered the evidence produced by the Commissionas to its active role in the agreements. As the Advocate General points out in point268 of his Opinion, the Court of First Instance referred to specific passages of theDecision describing conduct on the part of the appellant which justified greaterseverity in determining the penalty imposed. In those detailed explanations, theCommission laid emphasis both on the fact that the appellant was a driving forcein the commission of the infringements and on the involvement of Mr Müller in histhree-fold capacity as director of the appellant undertaking, a person legallyentitled to represent the German structural crisis cartel and president of the
Fachverband Betonstahlmatten. In point 207 of the Decision, the Commissionstated that the highest fines should be imposed on the undertakings whosemanagement occupied senior posts in the trade associations such as theFachverband Betonstahlmatten.
- As regards the finding that the appellant participated in the structural crisis cartel,it need merely be stated that, since the appellant was penalised because ofagreements which were not inseparably linked with constitution of the cartel andwere intended to protect the German market against uncontrolled imports fromother Member States, the Court of First Instance was fully entitled, in law, toconclude that the existence of that authorised cartel could not be regarded as ageneral mitigating circumstance in relation to that action by the appellant, whichhad assumed particular responsibility in that connection by reason of the functionsexercised by its director.
- Finally, as regards, more specifically, the existence of mitigating circumstances, theappellant maintains that the Court of First Instance failed to take account ofvarious circumstances of that kind. Thus, it criticises the Commission and the Courtof First Instance for basing the fine imposed on it on its total turnover rather thanby reference to the turnover deriving from the agreements. The appellant alsoalleges infringement of the principle of equal treatment, by reason of theabnormally high level of the fine imposed on it, by comparison with the other fines.It also objects to the fact that the Court of First Instance took account of itsmarket share on the German market in determining the amount of the fine, on theground that the financial resources of an undertaking are not necessarilyproportional to its position on the market.
- In that connection, it must be pointed out that the Court of First Instance noted,in paragraph 158 of the contested judgment, that the Commission did not takeaccount of the total turnover achieved by the appellant but only of the turnover inwelded steel mesh in the Community of six Member States and did not exceed the10% ceiling; accordingly, in view of the gravity and duration of the infringement,the Court of First Instance took the view that the Commission had not infringedArticle 15 of Regulation No 17.
- The Court of First Instance took the view, in paragraph 160 of the contestedjudgment, with regard to determination of the amount of the fine as 3.15% ofturnover, that in the case of the appellant, in respect of which no general mitigatingcircumstance existed, on the other hand, there had been found to be an aggravatingcircumstance as in the case of Tréfilunion resulting from the number and extentof the infringements found against it.
- It is appropriate, next, to consider whether the Court of First Instance tookaccount, in a manner that was correct in law, of the appellant's market share onthe German market when it found, in paragraph 147 of the contested judgment,that the Commission properly refused to treat as a mitigating circumstance, in the
appellant's case, the fact that it did not belong to a powerful economic entity, onthe ground that it was the undertaking which held by far the largest share of theGerman market.
- In that connection, it must be pointed out that the factors on the basis of which thegravity of an infringement may be assessed may include the volume and value ofthe goods in respect of which the infringement was committed and the size andeconomic power of the undertaking and, consequently, the influence which theundertaking was able to exert on the market (see Joined Cases 100/80 to 103/80Musique Diffusion française and Others v Commission  ECR 1825, paragraph120).
- It follows that it is permissible, for the purpose of determining the fine, to haveregard both to the total turnover of the undertaking, which constitutes anindication, albeit approximate and imperfect, of the size of the undertaking and ofits economic power, and to the proportion of that turnover accounted for by thegoods in respect of which the infringement was committed, which gives anindication of the scale of the infringement (Musique Diffusion française and Othersv Commission, cited above, paragraph 121). Although an undertaking's marketshares cannot be a decisive factor in concluding that an undertaking belongs to apowerful economic entity, they are nevertheless relevant in determining theinfluence which it may exert on the market.
- Accordingly, this complaint must be rejected.
The consequences of annulment of the contested judgment to the extent to whichit determines the amount of the fine
- Having regard to all the circumstances of the case, the Court considers that a sumof ECU 50 000 constitutes reasonable satisfaction for the excessive duration of theproceedings.
- Consequently, since the contested judgment is to be annulled to the extent to whichit determined the fine (see paragraph 48 of this judgment), the Court of Justice,giving final judgment, in accordance with Article 54 of its Statute, sets that fine atECU 2 950 000.
- For the rest, the appeal is dismissed.
- Pursuant to Article 122 of the Rules of Procedure, where an appeal is well foundedand the Court itself gives final judgment in the case, it is to give a decision on thecosts. Under Article 69(2), which is applicable to appeals by virtue of Article 118,the unsuccessful party is to be ordered to pay the costs if they have been appliedfor in the successful party's pleadings. However, under Article 69(3), the Courtmay, where each party succeeds on some and fails on other heads, order that thecosts be shared. Since the Commission has failed on one head and the appellanthas failed on the others, the appellant must be ordered to bear its own costs andthree quarters of those of the Commission.
On those grounds,
1. Annuls paragraph 2 of the operative part of the judgment of the Court ofFirst Instance of 6 April 1995 in Case T-145/89 Baustahlgewebe vCommission in so far as it sets the amount of the fine imposed on theappellant at ECU 3 million;
2. Sets the amount of the fine imposed on the appellant at ECU 2 950 000;
3. For the rest, dismisses the appeal;
4. Orders the appellant to bear its own costs and three quarters of theCommission's costs.
ManciniMoitinho de Almeida
Delivered in open court in Luxembourg on 17 December 1998.
G.C. Rodríguez Iglesias