JUDGMENT OF THE COURT (Sixth Chamber)

17 July 1997(1)

(Competition — Infringement of Article 85 of the EEC Treaty)

In Case C-219/95 P,

Ferriere Nord SpA, a company incorporated under the laws of Italy, established inOsoppo (Italy), represented by Wilma Viscardini Donà, of the Padua Bar, with anaddress for service in Luxembourg at the Chambers of Ernest Arendt, 8-10 RueMathias Hardt,

appellant,

APPEAL against the judgment of the Court of First Instance of the EuropeanCommunities (First Chamber) of 6 April 1995 in Case T-143/89 Ferriere Nord vCommission [1995] ECR II-917, seeking to have that judgment set aside,

the other party to the proceedings being:

Commission of the European Communities,represented by Enrico Traversa, of itsLegal Service, acting as Agent, and Alberto Dal Ferro, of the Vicenza Bar, with anaddress for service in Luxembourg at the office of Carlos Gómez de la Cruz, of itsLegal Service, Wagner Centre, Kirchberg,

THE COURT (Sixth Chamber),

composed of: G.F. Mancini, President of the Chamber, J.L. Murray, P.J.G.Kapteyn, G. Hirsch and H. Ragnemalm (Rapporteur), Judges,

Advocate General: P. Léger,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 20 February1997,

gives the following

Judgment

1. By application lodged at the Registry of the Court of Justice on 19 June 1995,Ferriere Nord SpA, a company incorporated under the laws of Italy, brought anappeal pursuant to Article 49 of the EC Statute of the Court of Justice against thejudgment of 6 April 1995 in Case T-143/89 Ferriere Nord v Commission [1995] ECRII-917 (hereinafter 'the contested judgment‘), in which the Court of First Instancedismissed its application for annulment of Commission Decision 89/515/EEC of 2August 1989 relating to a proceeding under Article 85 of the EEC Treaty(IV/31.553 — Welded steel mesh) (OJ 1989 L 260, p. 1; 'the contested decision‘).
   
   
2. As far as the facts underlying the appeal are concerned, the following emergesfrom the contested judgment:
   
   
   • By the contested decision, the Commission imposed a fine on 14manufacturers of welded steel mesh for having, in the words of Article 1 ofthe decision, '... infringed Article 85(1) of the EEC Treaty by participatingfrom 27 May 1980 until 5 November 1985 on one or more occasions in oneor more agreements or concerted practices (hereinafter referred to as”agreements") consisting in the fixing of selling prices, the restricting ofsales, the sharing of markets and in measures to implement theseagreements and to monitor their operation‘.
     
     
   • The contested decision alleges more specifically that the applicant '...participated in two sets of agreements concerning the French market. Those agreements are said to have involved the French producers ... andthe foreign producers operating on the French market ... and were intendedto determine prices and quotas in order to limit imports of welded steelmesh into France, and to set up an exchange of information. The first setof agreements is said to have been implemented between April 1981 andMarch 1982. The second set of agreements is said to have beenimplemented between the beginning of 1983 and the end of 1984. Thatsecond set of agreements is alleged to have been formalized by the adoptionof a ”protocole d'accord" in October 1983‘ (paragraph 15 of the contestedjudgment).
     
     
   • On that ground, a fine of ECU 320 000 was imposed on Ferriere Nord.

   
   
   

3. On 18 October 1989, the applicant brought an application for annulment of thecontested decision. By orders of 15 November 1989, the Court of Justice assignedthe case, together with 10 other related cases, to the Court of First Instancepursuant to Article 14 of Council Decision 88/591/ECSC, EEC, Euratom of 24October 1988 establishing a Court of First Instance of the European Communities(OJ 1988 L 319, p. 1).
   
   
4. The applicant's primary claim was that the Court of First Instance should annul thecontested decision in so far as it concerned the applicant; in the alternative, itclaimed that the fine imposed on Ferriere Nord should be set aside or reduced toan equitable amount. It claimed that, in any event, the Commission should beordered to pay the costs. The Commission claimed that the application should bedismissed as unfounded and that the applicant should be ordered to pay the costs.
   
   
5. The applicant put forward three pleas in law in support of its application. The firstalleged infringement of Article 85(1) of the Treaty, the second infringement ofArticle 15(2) of Regulation No 17 of the Council of 6 February 1962, FirstRegulation implementing Articles 85 and 86 of the Treaty (OJ, English SpecialEdition 1959-1962, p. 87; hereinafter 'Regulation No 17‘), and the third misuse ofpowers.
   
   
6. In its judgment, the Court of First Instance rejected all those pleas.
   
   
7. On appeal, the appellant asks this court to set aside the contested judgment andgrant the form of order sought by it at first instance.
   
   
8. The Commission claims that the Court of Justice should dismiss the appeal, confirmthe validity of the contested decision and order the appellant to pay the costs.
   
   
9. The appellant puts forward two pleas in support of its appeal. It maintains that theCourt of First Instance erred in law in interpreting and applying, first, Article 85(1)of the Treaty and, second, Article 15(2) of Regulation No 17.
   
        First plea, alleging infringement of Article 85(1) of the Treaty
   
   
10. This plea has three limbs. The appellant claims that the Court of First Instance (a)did not take account of the Italian version of Article 85(1) of the Treaty, (b) failedto consider in what respect the agreements to which it was a party affected tradebetween Member States and (c) wrongly assessed the economic and legal linksbetween the market in welded steel mesh and that in wire rod.
    
    
11. Before considering each limb it should be noted that, as appears from paragraph25 of the contested judgment, the appellant has admitted to being a party to theagreements between producers of welded steel mesh and that it does not disputethe object of those agreements, namely to fix prices and quotas.
    
    
12. The first limb of the first plea is concerned with paragraphs 30 and 31 of thecontested judgment, which read as follows:
    
    '30    ... for the purpose of the application of Article 85(1) there is no need totake account of the concrete effects of an agreement when it has as itsobject the prevention, restriction or distortion of competition within thecommon market (judgment of the Court of Justice in Case C-277/87 SandozProdotti Farmaceutici v Commission [1990] ECR I-45).
    
    31    The applicant may not rely on the Italian version of Article 85 of the Treatyin order to require the Commission to demonstrate that the agreement hadboth an anti-competitive object and effect. That version cannot prevail byitself against all the other language versions, which, by using the term ”or",clearly show that the condition in question is not cumulative but alternative,as the Court of Justice has consistently held since its judgment in SociétéTechnique Minière (cited above, p. 249). The uniform interpretation of rulesof Community law requires that they be interpreted and applied in the lightof the versions existing in the other Community languages (judgments of theCourt of Justice in Case 19/67 Van der Vecht [1967] ECR 345 at p. 354, andin Case 283/81 CILFIT v Ministry of Health [1982] ECR 3415, paragraph18).‘
    
    
13. The appellant complains that the Court of First Instance failed to take account ofthe Italian version of Article 85(1) of the Treaty, according to which an agreementmust have as its object and effect the prevention, restriction or distortion ofcompetition, with the result that the provision lays down a cumulative, and not analternative, condition. The reasoning of the Court of First Instance in paragraph31 of the contested judgment is incorrectly based on case-law not relating to theItalian version of Article 85. The other language versions should be called in aidonly where the meaning of one version of a provision is not clear, which is not thecase here.
    
    
14. Admittedly, unlike the other language versions of Article 85, it appears from theItalian version, as a result of its use of the coordinating conjunction 'e‘, that theagreement must have as its object and effect the prevention, restriction ordistortion of competition. However, that difference cannot cast doubt on theinterpretation of Article 85 given by the Court of First Instance in paragraph 30 ofthe contested judgment.
    
    
15. In fact, as the Court of First Instance rightly held, it is settled case-law thatCommunity provisions must be interpreted and applied uniformly in the light of theversions existing in the other Community languages (Van der Vecht and CILFIT vMinistry of Health, paragraph 18). This is unaffected by the fact that, as it happens,the Italian version of Article 85, considered on its own, is clear and unambiguous,since all the other language versions expressly render the condition set out inArticle 85(1) of the Treaty in the form of an alternative.
    
    
16. It follows that the first limb of the first plea must be rejected.
    
    
17. The second limb of the first plea relates to paragraphs 32 to 35 of the contestedjudgment, which read:
    
        '32    ... Article 85(1) of the Treaty does not require that the restrictions oncompetition which have been established have actually affected tradebetween Member States, but only requires that it be established that suchagreements are capable of having that effect (judgment in Miller, citedabove, paragraph 15).
    
    33    In the present case, the fact that the applicant's units of production ofwelded steel mesh are far away from the French market is not in itself ofsuch a nature as to hinder its exports to that market. Moreover, theapplicant's arguments themselves show that the agreements were, in so faras they tended to increase prices, likely to increase its exports to France andthereby to affect trade between Member States.
    
    34    Furthermore, assuming, as the applicant claims, that the agreements did notalter the total market share held by the Italian producers and that itsexports remained far below its allocated quota, it is nevertheless the casethat the restrictions on competition which have been established were likelyto divert patterns of trade from the course which they would otherwise havefollowed (judgment in Van Landewyck, cited above, paragraph 172). Theobject of the agreements was to allocate quotas for imports into the Frenchmarket in order to bring about an artificial increase in prices on thatmarket.
    
    35    It follows that, as is found in the Decision, by being a party to agreementswhich had as their object the restriction of competition within the commonmarket and which might have affected trade between Member States, theapplicant infringed Article 85(1) of the Treaty.‘
    
    
18. The appellant complains that the Court of First Instance merely held in paragraph32 that it is sufficient that the agreements to which it was a party were capable ofactually affecting trade in order for them to be contrary to Article 85 of the Treaty,whereas the Court of First Instance should also have established in what respectthose agreements hampered trade between Member States. In its view, theagreements at issue were not capable of actually affecting trade between Italy andFrance.
    
    
19. In this connection, it must be held that the Court of First Instance rightly pointedout in paragraph 32 of the contested judgment that, according to Case 19/77 Millerv Commission [1978] ECR 131, paragraph 15, Article 85(1) of the Treaty does notrequire that agreements referred to in that provision have actually affected tradebetween Member States, which, moreover, is difficult to prove to a sufficient legalstandard in most cases, but requires that it be established that the agreements arecapable of having that effect.
    
    
20. Furthermore, it has been consistently held that in order that an agreement, decisionor concerted practice may affect trade between Member States it must be possibleto foresee with a sufficient degree of probability on the basis of a set of factors oflaw or fact that it may have an influence, direct or indirect, actual or potential, onthe pattern of trade between Member States such as to give rise to the fear thatthe realization of a single market between Member States might be impeded (seeCase 54/65 Société Technique Minière v Maschinenbau Ulm [1966] ECR 235 andJoined Cases 209/78 to 215/78 and 218/78 Van Landewyck v Commission [1980]ECR 3125, paragraph 170).
    
    
21. It follows that the second limb of the first plea must also be rejected.
    
    
22. The third limb of the first plea relates to paragraph 29 of the contested judgment:
    
    '29    With regard to the effect on competition, it is true, as the applicantobserves, that the price of welded steel mesh depends largely on that ofwire rod, but it does not follow from this that any possibility of effectivecompetition in that sector was precluded. The producers still had asufficient margin to allow effective competition in the market. Theagreements could therefore have had an appreciable effect on competition...‘.
    
    
23. The appellant complains that the Court of First Instance gave no reasons for itsfinding that, despite the legislative and economic context relating to wire rod, anypossibility of effective competition in the sector of welded steel mesh was not forall that excluded.
    
    
24. Admittedly, the appellant does not contest the existence of a margin of competitionon the market in welded steel mesh despite the ECSC regime applicable to wirerod. However, it complains that the Court of First Instance did not considerwhether the agreements on welded steel mesh might not have been consistent withArticle 85 of the Treaty in so far as they helped to increase the price of weldedsteel mesh and hence, indirectly, of wire rod. The Commission wanted the pricelevel on the wire rod market to recover. Consequently, the appellant claims thatthe true aim of the agreement with French manufacturers of welded steel mesh wasnot to restrict competition in the sector, but to pursue the same aims as theCommission in the wire rod sector.
    
    
25. In this regard, it must be held that the Court of First Instance was right in law tofind merely that there was a sufficient margin to allow effective competition in themarket in welded steel mesh. The fact that the market in wire rod — upstream ofthe market in welded steel mesh — was subject to production quotas, and notimposed prices as the appellant seems to be arguing, has no bearing on the findingmade by the Court of First Instance. In any event, the legislative and economiccontext of wire rod did not authorize the appellant to take part in anti-competitiveagreements relating to a derived product on the pretext of protecting the productupstream, thereby substituting itself for the competent authorities, which alone hadthe power to do so.
    
    
26. The whole of the first plea must therefore be rejected.
    
    Second plea, alleging infringement of Article 15(2) of Regulation No 17
    
    
27. This plea is concerned with fixing and determining the amount of the fine inaccordance with Article 15(2) of Regulation No 17.
    
    
28. Article 15(2) of Regulation No 17 provides as follows:
    
    'The Commission may by decision impose on undertakings or associations ofundertakings fines ... where, either intentionally or negligently:
    
    (a)    they infringe Article 85(1) or Article 86 of the Treaty; or
    
    (b)    ...
    
    In fixing the amount of the fine, regard shall be had both to the gravity and to theduration of the infringement.‘
    
    
29. The appellant asks that the fine imposed on it by the contested decision beabolished or, at least, reduced.
    
    
30. In this regard, it maintains that the Court of First Instance did not consider all thearguments which it raised before it or that it did not consider sufficiently to whatextent they were well founded. In the alternative, it argues that, assuming the fineto be well founded in principle, its amount is in any case excessive and unjust.
    
    
31. As regards the allegedly unjust nature of the fine, it is important to point out thatit is not for this Court, when ruling on questions of law in the context of an appeal,to substitute, on grounds of fairness, its own assessment for that of the Court ofFirst Instance exercising its unlimited jurisdiction to rule on the amount of finesimposed on undertakings for infringements of Community law (Case C-310/93 PBPB Industries and British Gypsum v Commission [1995] ECR I-865, paragraph 34). In contrast, the Court of Justice does have jurisdiction to consider whether theCourt of First Instance has responded to a sufficient legal standard to all thearguments raised by the appellant with a view to having the fine abolished orreduced.
    
    
32. It should first be pointed out (see the order of 25 March 1996 in Case C-137/95 PSPO and Others v Commission [1996] ECR I-1611) that, on the one hand, the firstsubparagraph of Article 15(2) of Regulation No 17 lays down the conditions whichmust be fulfilled to enable the Commission to impose fines (initial conditions);those conditions include the intentional or negligent nature of the infringement. On the other hand, the second subparagraph of that provision governsdetermination of the amount of the fine, which depends on the gravity and durationof the infringement.
    
    
33. The gravity of infringements has to be determined by reference to numerousfactors, such as the particular circumstances of the case, its context and thedissuasive effect of fines; moreover, no binding or exhaustive list of the criteriawhich must be applied has been drawn up (order in SPO and Others v Commission,paragraph 54).
    
    
34. Second, Article 15(2) of Regulation No 17 does not require the Court of FirstInstance to draw attention to the optional nature of the fine. In order for theinfringements in question to be liable to fines, it is sufficient for it to find that theinfringements committed by the applicant were intentional and serious, as it did inparagraphs 41 and 42 of the contested judgment.
    
    
35. The appellant starts by taking up again the argument which it regards asdeterminative, that is to say, the close link between welded steel mesh and thequota system for wire rod. In its view, the situation is no different from thesituation of sugar considered by this Court in Joined Cases 40/73 to 48/73, 50/73,54/73, 55/73, 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission[1975] ECR 1663, in which the Court considerably reduced the fines. It thereforecriticizes the Court of First Instance for having failed to discern any similaritybetween that case and the instant case.
    
    
36. That argument concerns paragraph 63 of the contested judgment, in which theCourt of First Instance held as follows:
    
    '63    It must first of all be noted that the Commission took account of the linkexisting between the market for welded steel mesh and that for wire rod(point 201 of the Decision). For the rest, the applicant cannot rely on thejudgment in Suiker Unie, since that judgment relates to a situation which isfundamentally different in two respects from that in the present case. First,the Suiker Unie case concerned a common organization of an agriculturalmarket falling within the EEC Treaty, whereas the present case concerns asystem of pricing and production quotas falling under the ECSC Treaty. Secondly, in the Suiker Unie case, it was the derived product which was thesubject of a common organization of the market, whereas in the presentcase it is the basic product which is the subject of the pricing andproduction quota system. It follows that, at an economic level, the situationwith which the Suiker Unie judgment was concerned and that in the presentcase are fundamentally different, and the applicant can therefore not relyon that judgment in support of its claims.‘
    
    
37. The appellant maintains that the two situations are comparable. In Suiker Unie andOthers v Commission, the common organization in the sugar sector was necessaryin order to guarantee a minimum price for beet. In this case, it was impossible toguarantee a minimum price for wire rod without also regulating the market inwelded steel mesh.
    
    
38. It should be called to mind in this connection that, in fixing the amount of the fines,regard must be had to the gravity and to the duration of the infringement so thatthe Court has to take account of the legislative background and economic contextof the conduct to which exception is taken (Suiker Unie and Others v Commission,paragraph 612).
    
    
39. Contrary to the appellant's contention, the legislative background and the economiccontext of the agreements at issue were sufficiently taken into account by the Courtof First Instance in paragraph 63 of the contested judgment.
    
    
40. Indeed, the Court of First Instance pointed out not only that the Commission hadtaken account of the link between the market in welded steel mesh and that in wirerod, but also that the circumstances referred to in Suiker Unie and Others vCommission and the present case were fundamentally different.
    
    
41. It must be emphasized that in Suiker Unie and Others v Commission the relevantmarket was in a product subject to a common market organization in which, inparticular, national sugar quotas distributed among the principal producers applied. In contrast, in the present case, the relevant market — that in welded steel mesh —is free and subject to no measure of that nature.
    
    
42. In order to obtain a reduction in the fine, the appellant then puts forward otherarguments which, in its contention, were not taken sufficiently into considerationby the Court of First Instance.
    
    
43. Thus, it maintains first that it acted solely in order to safeguard the market in wirerod, in accordance with the provisions adopted by the Commission in that sector.
    
    
44. That argument goes to paragraph 64 of the contested judgment, in which the Courtof First Instance held as follows:
    
    '64    Moreover, assuming that the implementation of the agreements in questionled indirectly to an increase in the prices of wire rod, an increase which theCommission wished to see, the applicant cannot rely on that fact as amitigating factor. Undertakings may not rely on the fact that their pricingand quota agreements for a product have had an indirectly positive effecton the prices of another product which is covered by a system of productionquotas introduced by the Commission, otherwise the impact of that quotasystem would be excessively great. The quota system for wire rodestablished by the Commission under the ECSC Treaty was restricted tothat product. The undertakings were not authorized to extend that systemto a product governed by the EEC Treaty, such as welded steel mesh.‘
    
    
45. It is sufficiently clear from that paragraph that the Court of First Instanceconsidered the reasons for which that argument could not be regarded as being anattenuating circumstance.
    
    
46. Second, the appellant maintains that it did not derive any advantage from theagreements at issue and criticizes paragraph 53 of the contested judgment, in whichthe Court of First Instance found as follows:
    
    '53    ... the fact that the applicant did not benefit from the infringement wastaken into consideration in the calculation of the fine imposed on it. TheCommission took account of the fact that profitability is generallyunsatisfactory in the welded steel mesh sector (point 201 of the Decision)and the financial situation of the undertakings (point 203 of the Decision). Furthermore, the failure to derive profit from the infringement cannotpreclude the imposition of substantial fines, since otherwise they will ceaseto have a deterrent effect.‘
    
    
47. It also appears from that paragraph that the Court of First Instance sufficientlyconsidered the reasons for which that argument was unfounded.
    
    
48. Third, the appellant argues that it acted with a view to integrating and notpartitioning the markets.
    
    
49. Contrary to what the Commission contends, that argument was in fact raised by theappellant in its application to the Court of First Instance, but was not consideredas such by that court.
    
    
50. However, it should be noted that that argument falls within the broader context ofan infringement committed intentionally or negligently and, as such, was consideredsufficiently in paragraphs 41 and 42 of the contested judgment, in which the Courtof First Instance held as follows:
    
    '41    ... it is not necessary for an undertaking to have been aware that it wasinfringing the competition rules laid down in the Treaty for an infringementto be regarded as having been committed intentionally, but it is sufficientthat it could not have been unaware that the object of its conduct was therestriction of competition ...
    
    42    In the present case, having regard to the intrinsic seriousness and obviousnature of the infringement of Article 85(1) of the Treaty, and in particularsubparagraphs (a) and (c) thereof, the Court considers that the applicantcannot claim that it did not act deliberately. For the same reasons, theapplicant can also not argue that, as a producer of steel whose activities areusually governed by the ECSC Treaty, it was unaware that those agreementswere contrary to the EEC Treaty.‘
    
    
51. Fourth, the appellant contends that it was not party either to the agreementsrelating to the Benelux markets or to those relating to the German market, eventhough it had a considerable interest in the latter. It also maintains that it neversuggested adopting for the Italian market similar measures to the French andGerman measures, even though it could have done so having regard to itsimportant position on the market.
    
    
52. Suffice it to say with regard to this point that the Court of First Instance sufficientlyconsidered and showed in paragraph 48 of the contested judgment that thosearguments were baseless:
    
    '48    The Decision took into account the fact that the applicant did notparticipate in the infringements on the Benelux and German markets, sinceit does not indicate that the applicant participated in them. Similarly, theDecision does not find that agreements were concluded in respect of theItalian market. For the purpose of claiming that the fine imposed on itshould be reduced, it does not avail the applicant to argue that theinfringement committed by it was less serious than it was.‘
    
    
53. Lastly, the appellant argues that, even if this Court should take the view that thefine is justified, its amount should be sharply reduced on account of the devaluationof the Italian lira against the ECU since 2 August 1989, the date on which thecontested decision was adopted. It maintains that the Court should determine theamount of the fine by taking account of the value in Italian lira corresponding tothe ECU exchange rate applicable at the date when the fine was fixed.
    
    
54. The Commission contends that, under Article 42(2) of the Rules of Procedure ofthe Court of Justice, that plea is inadmissible, since it was raised for the first timein the reply.
    
    
55. Under Article 42(2) of the Rules of Procedure of the Court of Justice, which isapplicable to appeals by virtue of Article 118 of those Rules, no new plea in lawmay be introduced in the course of proceedings unless it is based on matters of lawor of fact which come to light in the course of the procedure.
    
    
56. It must be held that the argument based on the devaluation of the lira was notraised by the appellant either before the Court of First Instance or in this appeal. In order for such a plea to be admissible at the stage of the reply, the appellantshould have established, in accordance with Article 42(2) of the Rules ofProcedure, in what respect the devaluation of the Italian lira was a new fact whichcame to light in the course of these proceedings. Since the appellant has adducedno evidence of this, the plea must be rejected as inadmissible.
    
    
57. Since none of the pleas raised has been upheld, the appeal as a whole must bedismissed.
    
    Costs
    
    
58. Under Article 69(2) of the Rules of Procedure, which is applicable to appeals byvirtue of Article 118, the unsuccessful party is to be ordered to pay the costs. Sincethe appellant has been unsuccessful, it must be ordered to pay the costs of theappeal.
    
    On those grounds,

    THE COURT (Sixth Chamber)

    hereby:
    
    1.    Dismisses the appeal;
    
    2.    Orders the appellant to pay the costs.
    
    
    

ManciniMurray Kapteyn Hirsch Ragnemalm

Delivered in open court in Luxembourg on 17 July 1997.

R. Grass

G.F. Mancini

Registrar

President of the Sixth Chamber

1: Language of the case: Italian.