OPINION OF ADVOCATE GENERAL
LÉGER
delivered on 28 October 2004 (1)

Case C-57/02 P

Compañía Española para la Fabricación de Aceros Inoxidables SA (Acerinox)

v

Commission of the European Communities

Case C-65/02 P

ThyssenKrupp Stainless GmbH, formerly Krupp Thyssen Stainless GmbH

v

Commission of the European Communities

and Case C-73/02 P

ThyssenKrupp Acciai Speciali Terni SpA, formerly Acciai Speciali Terni SpA

v

Commission of the European Communities

(Appeal – Competition – Agreements, decisions and concerted practices – Alloy surcharge – Attribution of responsibility for the infringement – Calculation of the fine – Cooperation during the administrative procedure – Greater reduction of the fine for undertakings which acknowledge the existence of the infringement than for those which did not substantially contest the facts – Validity)

Table of contents

I –  The facts of the dispute

II –  The actions before the Court of First Instance and the contested judgments

III –  Procedure before the Court of Justice and the relief sought

IV –  The appeals

A – The first plea: inadequacy of the statement of the reasons on which the contested judgment was based

B – The second plea: misapplication of the concept of ‘concerted practice’

C – The third plea: inadequate statement of the reasons on which the contested judgment was based

D – The fourth plea: errors in the interpretation and application of the rules concerning imposition of fines

E – The fifth plea: errors made in assessing the duration of the infringement

F – The sixth plea: breach of the rights of the defence, of the principle of equal treatment and of the principle of the protection of legitimate expectations

V –  The cross-appeal

A – The first plea: distortion of evidence

B – The second plea: breach of the conditions for transfer of the responsibility of the conduct of one undertaking to another

C – The third plea: breach of the requirements relating to the rights of the defence

D – The fourth plea: material inaccuracy of the facts and distortion of evidence

VI –  Disposal of the case by the Court of Justice

VII –  The action at first instance

VIII –  Costs

IX –  Conclusion

1.       The present cases are concerned with the appeals brought by Compañía Española para la Fabricación de Aceros Inoxidables SA (Acerinox) (‘Acerinox’), Krupp Thyssen Stainless GmbH (‘KTS’) and ThyssenKrupp Acciai Speciali Terni SpA (‘AST’) against the judgments of the Court of First Instance of the European Communities of 13 December 2001 in the ‘alloy surcharge’ cases. (2) Those cases concern a price agreement in the stainless steel sector.

2.       One of the pleas put forward by the parties raises an interesting question concerning cooperation by undertakings with the Commission of the European Communities in the course of the administrative procedure. It will thus be necessary to determine whether the Commission may grant a greater reduction of the fine to undertakings which admitted the existence of the infringement than to those which merely did not substantially contest the facts.

3.       Before those pleas are examined, it is appropriate to summarise the facts of the dispute and, in particular, the links between the various undertakings concerned, those links being relevant to the examination of these appeals.

I –  The facts of the dispute

4.       Krupp Thyssen Nirosta GmbH (‘KTN’) is a company incorporated under German law which came into being on 1 January 1995 as a result of a merger of the stainless steel flat products businesses of Thyssen Stahl AG (‘Thyssen Stahl’) and Fried Krupp AG Hoesch‑Krupp (‘Krupp’). On 16 September 1997, its name was changed to KTS.

5.       AST is a company incorporated under Italian law, one of whose principal activities is the production of stainless steel flat products. It was set up on 1 January 1994 when the business of the Italian ILVA group was divided into three separate undertakings. On 21 December 1994, the Commission authorised the joint acquisition of AST by a number of undertakings, including Krupp and Thyssen Stahl. In December 1995, Krupp increased its holding in AST from 50% to 75%, and then, on 10 May 1996, acquired all the shares in AST. Those shares were then transferred to KTN, which became KTS.

6.       Acerinox is a Spanish company operating in the stainless steel business, in particular the flat products sector.

7.       On 16 March 1995, following reports in the press and complaints from consumers, the Commission, acting under Article 47 of the ECSC Treaty, asked several stainless steel producers to provide it with information concerning their application of a general price increase known as the ‘alloy surcharge’.

8.       The alloy surcharge is a price supplement calculated on the basis of the prices of alloying materials and added to the basic price for stainless steel. The cost of the alloying materials used in stainless steel production (nickel, chromium and molybdenum) forms a very large proportion of the production costs. Furthermore, the prices of those materials are extremely volatile.

9.       On the basis of the information received, on 19 December 1995 the Commission served a statement of objections on 19 undertakings.

10.     In December 1996 and January 1997, after the Commission had carried out a number of onsite inspections, lawyers or representatives of a number of undertakings informed the Commission of their wish to cooperate. For that purpose, statements were sent to the Commission, on 17 December 1996 by Acerinox, ALZ NV, Avesta Sheffield AB (‘Avesta’), KTN and Usinor SA (‘Usinor’ or ‘Ugine’), and on 10 January 1997, by AST.

11.     On 24 April 1997, the Commission served a new statement of objections on those undertakings, and on Thyssen Stahl, replacing the statement of 19 December 1995.

12.     On 21 January 1998, it adopted Decision 98/247/ECSC relating to a proceeding pursuant to Article 65 of the ECSC Treaty (Case IV/35.814 – Alloy surcharge).  (3)

13.     According to the Decision, the prices for alloying materials for stainless steel fell sharply in 1993. When the price of nickel began to rise in September 1993, producers’ profits were considerably reduced. To remedy this, most of the producers of stainless steel flat products agreed, at a meeting held in Madrid on 16 December 1993 (‘the Madrid meeting’), to increase their prices on a concerted basis by changing the parameters for calculating the alloy surcharge. To that end, they decided to apply, as from 1 February 1994, an alloy surcharge based on a method last used in 1991, taking as reference values for all producers the prices of alloying materials obtaining in September 1993, a month in which the price of nickel had reached its historical low.

14.     According to the contested decision, the alloy surcharge calculated on the basis of the newly determined reference values was applied by all producers for their sales in Europe as from 1 February 1994, except in Spain and Portugal.

15.     In Article 1 of the contested decision, the Commission took the view that Acerinox, ALZ NV, AST, Avesta, Krupp (KTN as from 1 January 1995), Thyssen Stahl (KTN as from 1 January 1995), and Usinor had infringed Article 65(1) of the ECSC Treaty from December 1993 to November 1996 in the case of Avesta and until the date of the contested decision in the case of all the other undertakings, by modifying and by applying in a concerted fashion the reference values used to calculate the alloy surcharge. That practice had both the object and the effect of restricting and distorting competition within the common market.

16.     In Article 2 of the contested decision, the Commission imposed the following fines:

–

Acerinox: ECU 3 530 000

–

ALZ NV: ECU 4 540 000

–

AST: ECU 4 540 000

–

Avesta: ECU 2 810 000

–

KTN: ECU 8 100 000

–

Usinor: ECU 3 860 000

II –  The actions before the Court of First Instance and the contested judgments

17.     By applications lodged on 11 March 1998 and 13 March 1998, KTS, AST and Acerinox instituted proceedings before the Court of First Instance.

18.     Each of the applicants claimed that the contested decision should be annulled and, in the alternative, that the fine imposed should be cancelled or reduced.

19.     The Court of First Instance upheld those claims in part. In the KTS and AST v Commission judgment, it annulled Article 1 of the contested decision to the extent to which it held KTN responsible for the infringement committed by Thyssen Stahl, and reduced to EUR 4 032 000 the fine imposed on KTS and AST. In the Acerinox v Commission judgment, the Court of First Instance reduced the fine imposed on Acerinox to EUR 3 136 000.

III –  Procedure before the Court of Justice and the relief sought

20.     By applications lodged at the Registry of the Court of Justice on 22 February 2002 (Case C-57/02 P), 28 February 2002 (Case 65/02 P) and 5 March 2002 (Case C-73/02 P) respectively, Acerinox, KTS and AST appealed against the abovementioned judgments.

21.     Each of the applicants claims that the contested judgment should be annulled and that the Commission should be ordered to pay the costs. Acerinox and KTS also ask the Court of Justice to review the entire case and annul the contested decision or, at least, reduce the amount of the fine imposed on them.

22.     In Case C-65/02 P, the Commission has brought a cross-appeal against the KTSandAST v Commission judgment. It claims that the Court of Justice should annul that judgment to the extent to which it annulled the contested decision (the part regarding the infringement committed by Thyssen Stahl) and reduced the amount of the fine imposed on KTN. The Commission also asks the Court of Justice to order KTS to pay the costs.

IV –  The appeals

23.     In support of their appeals, the three companies put forward two pleas in law alleging:

–

errors in the assessment of the duration of the infringement and

–

breach of the rights of the defence, of the principle of equal treatment and of the principle of the protection of legitimate expectations.

24.     KTS and AST also put forward a further plea, alleging misinterpretation and misapplication of the principles concerning the attribution of liability to pay the fine.

25.     Acerinox, for its part, puts forward three additional pleas:

–

incorrect appraisal of its arguments and inadequate statement of the reasons on which the contested judgment was based;

–

misapplication of the concept of ‘concerted practice’; and

–

defective reasoning of the contested judgment.

26.     I shall first examine the pleas specific to Acerinox (Sections A to C), then the plea common to KTS and AST (Section D) and finally the pleas put forward by all three companies (Sections E and F).

A – The first plea: inadequacy of the statement of the reasons on which the contested judgment was based

27.     At first instance, Acerinox contended that the Commission had not produced evidence of the existence of an agreement or of a concerted practice concerning the application of the alloy surcharge in the Spanish market.

28.     The Court of First Instance rejected that plea for the following reasons:

‘29

It must be borne in mind that, where there is a dispute as to the existence of an infringement of the competition rules, it is incumbent on the Commission to prove the infringements which it has found and to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement … .

30

However, once it has been established that an undertaking has participated in meetings of a manifestly anti-competitive nature …, it is incumbent on that undertaking to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs … .

31

In this case, it is not disputed that the applicant participated in the Madrid meeting of 16 December 1993 during which … certain producers of stainless steel flat products agreed to use, from the same date, identical reference values for calculation of the alloy surcharge and, therefore, as to the determination of part of the final price of those products, contrary to Article 65(1) of the ECSC Treaty.

32

It is necessary to consider, however, whether the applicant has satisfactorily established that it distanced itself from that agreement and cannot therefore be accused of infringing Article 65(1) of the ECSC Treaty.

33

As regards … the Spanish market, … the Commission does not dispute that, at that meeting, Acerinox expressed its wish not to apply the alloy surcharge in Spain owing to the economic situation prevailing there.

34

In that connection, paragraph 27 of the Decision [states that] … at the meeting “Acerinox said it did not plan to apply the surcharge in Spain because it considered the measure would not help to increase demand and would not have a positive effect on Spanish industry which was in the depths of a severe crisis”.

35

Since it is therefore common ground that, at the date of the Madrid meeting, the applicant distanced itself from the agreement on the alloy surcharge in so far as it related to the Spanish market, the mere fact that it took part in that meeting is no basis for treating it as a party to an agreement whose object was to fix the reference values for the alloy surcharge on that market, contrary to Article 65(1) of the ECSC Treaty.

36

Since the aim of such an agreement was, at that date, contrary to Acerinox’s interests, in so far as it related to the Spanish market, only proof of a commitment by that undertaking to apply the alloy surcharge on its domestic market would therefore represent adherence by it to an agreement concerning Spain … .

37

It is clear from the file that … Avesta, by fax of 14 January 1994, informed its subsidiaries, including the one in Spain, of the position taken by some of its competitors concerning the date for application of the alloy surcharge on their domestic markets. With regard more specifically to Acerinox, it is stated:

“Acerinox have announced that surcharges will apply from 1 April 1994 (yes April!)”.

38

The applicant does not contest the truth of the statements attributed to it but confines itself to asserting that that statement shows even more clearly that no agreement or concerted practice existed at the date of the Madrid meeting concerning deferred application of the alloy surcharge in Spain. The fact nevertheless remains that such a statement constitutes evidence of the fact that, on 14 January 1994, Acerinox had in any event expressed its intention to apply an alloy surcharge in Spain in line with the terms agreed by the undertakings concerned at the Madrid meeting and had thus complied with that agreement.

...

45

It follows that the applicant must be regarded as having participated in the agreement … in so far as that agreement related to the application of the alloy surcharge in Spain, as from its adherence to the agreement, no later than 14 January 1994 … .’

29.     In its first ground of appeal, Acerinox criticises the Court of First Instance for finding that it had participated in the agreement concerning the Spanish market and for relying, as evidence of such participation, on Avesta’s fax of 14 January 1994.

30.     It points out that, before the Court of First Instance, it had expressly objected to the content, and therefore the probative value, of that fax. By relying on that document as evidence of its participation in the agreement without responding to its arguments, the Court of First Instance therefore, it contends, failed to discharge its obligation to state reasons.

31.     As I stated in Belgium v Commission,  (4) the Court of Justice has rarely taken the opportunity to define positively the Court of First Instance’s obligation to state reasons. However, as the case-law stands, certain principles can be inferred.

32.     It may be considered that the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the Court of First Instance’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review.  (5) In the case of an application based on Article 230 EC or on Article 33 of the ECSC Treaty, the requirement for a statement of reasons implies, needless to say, that the Court of First Instance must examine the pleas in law put forward by the applicant and must state the reasons which prompt it to reject the plea or annul the contested measure.

33.     It is clear, however, that, in order to give a valid response to a plea in law, the Court of First Instance must, in the first place, have correctly understood the plea. If the Court of First Instance misunderstands the meaning of one of the pleas put forward by the applicant, it may, as a result, wrongly declare that plea inadmissible  (6) or wrongly reject on substantive grounds a plea other than that which was actually put forward.  (7) In both cases, the Court of First Instance fails to fulfil its obligation to state reasons since it does not respond to the plea actually put forward by the applicant.

34.     In this case, I consider that the Court of First Instance committed an error of that kind.

35.     In paragraphs 36 to 38 of the contested judgment, it held that Acerinox had participated in the agreement in so far as it related to the Spanish market. It found proof of such participation in the Avesta fax of 14 January 1994, which indicates that ‘Acerinox have announced that surcharges will apply from 1 April 1994 (yes April!)’, and in the fact that, in its view, ‘[t]he applicant [did] not contest the truth of the statements attributed to it’.

36.     However, contrary to what the judgment indicated, Acerinox had expressly contested the content of that fax. In its application, it stated that ‘[t]his information … with regard to an “announcement” by the applicant … was inaccurate. No such “announcement” was made’.  (8)

37.     Even though, as we shall see,  (9) the terms used were not particularly strong, the fact nevertheless remains that the allegation was actually contested: before the Court of First Instance, Acerinox had contested the content, and therefore the probative value, of the Avesta fax of 14 January 1994.

38.     In those circumstances, I believe that the Court of First Instance was not entitled to treat that document as evidence without explaining why the applicant’s objection should be rejected. By failing to respond to the arguments put forward by the applicant, it failed to fulfil its obligation to state reasons under Articles 36 and 53 of the Statute of the Court of Justice.

39.     I therefore propose that the Court of Justice annul the contested judgment on that point. Since, however, such annulment is only partial, it is appropriate to go on to examine the other pleas put forward by the applicants.  (10)

B – The second plea: misapplication of the concept of ‘concerted practice’

40.     The second plea in law concerns paragraphs 29 to 45 of the Acerinox v Commission judgment.

41.     The Court of First Instance’s reasoning was as follows:

‘29

It must be borne in mind that, where there is a dispute as to the existence of an infringement of the competition rules, it is incumbent on the Commission to prove the infringements which it has found and to adduce evidence capable of demonstrating to the requisite legal standard the existence of circumstances constituting an infringement … .

…

40

As regards [the application of the alloy surcharge in the countries of the European Community other than Spain], the applicant’s arguments … are based on a misapprehension as to the requirements concerning proof laid down by Article 65(1) of the ECSC Treaty.

41

The Court holds that the applicant has not proved that, at the Madrid meeting, it distanced itself from the other participants in the meeting by stating its intention not to apply the alloy surcharge in the countries of the European Community other than Spain. It is clear from the file that, on the contrary, in its statement of 17 December 1996, in response to questions from the Commission, the applicant did not contend that, at the Madrid meeting, it had adopted the same attitude as the one decided upon regarding application of the alloy surcharge in Spain … .

42

Moreover, it is clear from that same statement that the applicant applied an alloy surcharge to its products as from February 1994 in Denmark; then, in March, in Germany, Norway and Sweden; then, in April, in Ireland, Portugal, the United Kingdom and Italy; and, finally, in France and Belgium in May 1994.

43

The applicant’s claim that the alignment of its alloy surcharges with those applied by the other producers operating on those markets derived from mere parallelism of conduct attributable to the oligopolistic structure of the market in stainless steel flat products and to the transparency rules in Article 60 of the ECSC Treaty is unconvincing. Whilst it may follow from the case-law that parallel conduct cannot be regarded as furnishing proof of concertation unless concertation constitutes the only plausible explanation for such conduct …, the fact nevertheless remains, in this case, that the Commission has produced proof of prior concertation between the undertakings concerned, which involved the use and application of identical reference values in the formula for calculating the alloy surcharge.

...

45

It follows that the applicant must be regarded as having participated in the agreement, in so far as it related to the application, in the Member States of the Community other than Spain, of an alloy surcharge calculated on the basis of reference values agreed between undertakings as from 16 December 1993, the date of the Madrid meeting … .’

42.     In its second plea, Acerinox criticises the Court of First Instance for misapplying the concept of ‘concerted practice’ within the meaning of Article 65(1) of the ECSC Treaty.

43.     It points out that, according to the case-law, that concept implies not only concertation between the undertakings concerned but also conduct in the market following such concertation and a relationship of cause and effect between those two factors.

44.     However, in paragraph 43 of the contested judgment, the Court of First Instance found that the applicant had participated in the infringement but did not establish any causal link between the Madrid meeting and its conduct in the market.

45.     In the first place, it will be seen that, contrary to what Acerinox suggests, the Court of First Instance did not describe the infringement as a ‘concerted practice’ within the meaning of Article 65(1) of the ECSC Treaty. It referred only to the ‘agreement’, without making clear whether it constituted a concerted practice. However, even if Acerinox’s view regarding its classification were accepted, its plea would still have to be rejected.

46.     It is true that, by virtue of the case-law, (11) the concept of ‘concerted practice’ implies, in addition to concertation between the parties, conduct in the market following such collusive conduct and a relationship of cause and effect between those two factors. It is therefore undisputed that, for the purpose of interpreting that concept, it cannot be considered that the collusive practices necessarily had an effect on the conduct of the undertakings which participated in them.  (12)

47.     However, by virtue of the same case-law, the Court of Justice considers that ‘subject to proof to the contrary, which it is for the economic operators concerned to adduce, there must be a presumption that the undertakings participating in concerting arrangements and remaining active on the market take account of the information exchanged with their competitors when determining their conduct on that market’.  (13) The Court made it clear that such a presumption was compatible with the principle of the presumption of innocence  (14) and with the rules applicable to burden of proof.  (15)

48.     It follows that the Court of First Instance is entitled to presume, subject to proof to the contrary which it is for the undertaking concerned to adduce, that the concertation influenced the conduct of the parties in the market.  (16)

49.     In this case, however, Acerinox has not shown, or even contended, that it produced such proof to the contrary to the Court of First Instance.

50.     In so far as the Commission had produced evidence of the existence of prior concertation between the undertakings concerned, the Court of First Instance could therefore properly presume that the applicant had taken account of the information exchanged in determining its conduct in the market and that it had therefore participated in the cartel in relation to countries other than Spain.

51.     Contrary to Acerinox’s contention, the Court of First Instance did not therefore err in law in interpreting or applying the concept of ‘concerted practice’.

C – The third plea: inadequate statement of the reasons on which the contested judgment was based

52.     In its third plea, Acerinox criticises the Court of First Instance for not giving an adequate statement of reasons in paragraph 90 of the Acerinox v Commission judgment.

53.     At first instance, it had claimed that the fines imposed by the Commission were disproportionate. In its view, the Commission was not entitled to use the same starting point for calculating the fine for all the companies concerned since there were considerable differences of size as between those companies.

54.     The Court of First Instance rejected that argument for the following reasons:

‘77

It must be borne in mind … that in the Decision the Commission determined the amount of the fines imposed on the undertakings concerned, and particularly on the applicant, by applying the method defined in the Guidelines [on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3, “the Guidelines”)].

78

Under that method, the Commission takes as the starting point a given amount determined by reference to the gravity of the infringement. … In that context, infringements are divided into three categories, namely “minor infringements” …, “serious infringements” …, and “very serious infringements” … .

...

80

Within each of the three abovementioned categories, it may be appropriate in particular cases to apply weightings to the amounts decided on so as to take account of the specific weight and therefore the real impact on competition of the unlawful conduct of each undertaking, especially where there is considerable disparity in the sizes of the undertakings that have committed an infringement of the same nature and to make consequential adjustments to the basic amount depending on the specific characteristics of each undertaking (Section 1 A, sixth paragraph).

81

In this case, the Commission considered, having regard to the gravity of the infringement, that the basic amount of the fines should be set at ECU 4 million for all the undertakings concerned … . [I]n considering whether there was “considerable disparity” between the undertakings involved in the infringement, the Commission considered that all the undertakings were large and that, consequently, it was not necessary to vary the amounts of the fine for the infringement.

...

87

The applicant’s argument that the fines imposed do not take account of the respective strengths of the undertakings concerned on the basis of their market shares must be also rejected.

88

It is true that an undertaking’s market shares may be relevant in order to determine what influence it may exert on the market but they cannot be a decisive factor in concluding that an undertaking belongs to a powerful economic entity … .

89

However, according to settled case-law, the factors on the basis of which the gravity of an infringement may be assessed may, depending on the circumstances, include the volume and value of the goods in respect of which the infringement was committed and the size and economic power of the undertaking … .

90

Accordingly, in this case, the Commission was fully entitled to rely, inter alia, on the size and economic strength of the undertakings concerned, having found them all to be large on the basis that the six undertakings concerned accounted for more than 80% of European production of finished stainless steel products (paragraph 9 of the Decision). In that regard, the comparison drawn by the applicant between its market share of about 11% and those of Ugine, AST and Avesta of about 18%, 15%, and 14% respectively is not such as to disclose any “considerable disparity” between those undertakings, within the meaning of Section 1 A, sixth paragraph, of the Guidelines, such as to render differentiation necessary in the appraisal of the gravity of the infringement.

91

In those circumstances, the amount of the fine imposed on the applicant cannot be regarded as disproportionate … .’

55.     Acerinox maintains that paragraph 90 of the abovementioned judgment does not contain an adequate explanation, for two reasons.

56.     First, the statement of reasons does not disclose why the Court of First Instance took the view that the comparison of the applicant’s market share with those of Usinor, AST and Avesta did not reveal a ‘considerable disparity’ between those undertakings, or a difference of the degree required to meet the criterion applied by the Court of First Instance.

57.     Next, the Court of First Instance was not entitled, when examining the compatibility of the calculation of the fine with the Guidelines, to confine itself to verifying whether there was a ‘considerable disparity’ between the undertakings in question. The existence of such a disparity constitutes only one of the cases in which it may be justified to apply a weighting to the fine in order to take account of the respective weights of the undertakings which participated in the infringement.

58.     As regards the first argument, it will be recalled that the statement of reasons on which a judgment is based must show clearly and unequivocally the reasoning of the Court of First Instance, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can carry out its judicial review.  (17) It will also be recalled that, in the case of an application based on Article 33 of the ECSC Treaty, the obligation to state reasons means that the Court of First Instance must examine the pleas relied on by the applicant and must state the reasons which prompt it to reject the plea or to annul the contested measure.

59.     In Connolly v Commission  (18) and in Belgium v Commission, the Court of Justice nevertheless laid down limits on that obligation to respond to pleas. It considered that the grounds set out in a judgment must be assessed in the light of the circumstances of each case  (19) and the Court of First Instance cannot be required to respond in detail to every single argument advanced by the applicant.  (20) That obligation to give a detailed response ceases where the applicant’s argument is not sufficiently clear and precise and is not adequately supported by detailed evidence.  (21) In my view, that obligation must also cease to apply where the response to the applicant’s argument is so obvious that no explanation is required.

60.     In this case, it is clear from paragraph 90 of the contested judgment that, for the Court of First Instance, the difference between the applicant’s market share and those of the other companies involved was not sufficient to constitute a ‘considerable disparity’ within the meaning of the sixth paragraph of Section 1 A of the Guidelines.

61.     However, unlike Acerinox, I consider that it was not necessary for the Court of First Instance to clarify the criterion relied on to reach ‘such a conclusion [or] what level of difference would meet the test adopted by the Court of First Instance’.  (22)

62.     It was clear that, whatever the meaning attributed to the term ‘considerable disparity between the sizes of the undertakings’ as used in the sixth paragraph of Section 1 A of the Guidelines, a difference of three to seven percentage points between the market shares of the companies concerned could not, in any case, constitute a disparity such as to compel the Commission to apply a weighting to the amount of the fine in accordance with the Guidelines. The response to that argument was thus so clear that no further explanation was called for.

63.     As regards Acerinox’s second argument, it likewise seems to me to be unfounded.

64.     It is clear that, in the Guidelines,  (23) the existence of a ‘considerable disparity between the sizes of the undertakings’ constitutes only one of the cases in which it may be justified to apply a weighting to the amount of the fine, the other cases having been left open by the Guidelines.

65.     Also, before the Court of First Instance, Acerinox referred only to that case because it had claimed that the Commission should have applied a weighting to the fine because of ‘important differences in the size of the companies concerned’.  (24)

66.     Accordingly, the effect of Acerinox’s view is to transfer to the Court of First Instance the burden of examining on its own initiative all factors which might justify applying a weighting to the fine. By contending that it was not entitled to confine itself to checking whether there was a considerable disparity between the sizes of the undertakings since the existence of such a disparity constitutes only one of the cases covered by the Guidelines, Acerinox is maintaining, essentially, that the Court of First Instance’s obligation to give reasons involves the following obligations:

–

to imagine all possible circumstances in which, under the Guidelines, the amount of the fine might be weighted in order to take account of the specific weight of each undertaking;

–

to imagine all arguments which Acerinox could have put forward to contest the Commission’s decision to refuse to undertake such weighting; and

–

to verify the legality of the Commission’s decision in the light of the criteria thus defined.

67.     It seems to me that, even in proceedings in which the Court is asked to exercise its unlimited jurisdiction under Article 229 EC or the second paragraph of Article 36 of the ECSC Treaty, the requirement to state reasons does not impose such an obligation on the Community judicature. Acerinox has not, in any event, made any submission such as to raise doubts in that regard.

68.     I therefore suggest that the Court of Justice reject the third plea as unfounded.

D – The fourth plea: errors in the interpretation and application of the rules concerning imposition of fines

69.     The fourth plea in law is directed against paragraphs 189 to 192 of the KTSandAST v Commission judgment.

70.     Before the Court of First Instance, KTS and AST criticised the Commission for imposing three separate fines on KTN, AST and Thyssen Stahl. They contended that, because those companies were related to each other within a group, the Commission should have imposed a fine on KTN alone, covering at the same time the business of KTN, that of AST and that of Thyssen Stahl.

71.     The Court of First Instance rejected that argument for the following reasons:

‘189

According to settled case-law, the anti-competitive conduct of an undertaking can be attributed to its parent company where it has not decided independently upon its own conduct on the market, but has carried out, in all material respects, the instructions given to it by that undertaking, having regard in particular to the economic and legal links between them … .

190

In this case, it must be remembered … that AST was taken over by Krupp and an Italian consortium jointly. Subsequently, in December 1995, Krupp increased its interest in AST from 50% to 75% and then acquired all the shares in AST on 10 May 1996. Those shares were then transferred to KTN, and then to KTS.

191

However, the applicants have not claimed or, a fortiori, proved that, after it was taken over, AST participated in the agreement covered by the Decision on the basis of instructions given by its parent company rather than independently. It must be observed, on the contrary, that they do not deny having acted independently throughout the duration of the agreement.

192

This plea must therefore be rejected.’

72.     In their appeal, KTS and AST put forward three complaints concerning the Court of First Instance’s reasoning.

73.     First, they consider that the Court of First Instance contravened the principle of equal treatment. In their view, when the Commission sets the amount of the fine on a flat-rate basis, the principle of equal treatment requires that amount to be the same for each undertaking which participated in the infringement. However, in this case, the Court of First Instance held that one and the same undertaking (namely KTS) could have imposed upon it a fine twice as high as the basic amount of the fine (once for AST and once for KTN, now KTS).

74.     Second, AST contends that the Court of First Instance misapplied Community law. In its view, that court should have applied the judgment of the Court of First Instance in Stora Kopparbergs Bergslags v Commission, (25) according to which an infringement committed by a subsidiary can be imputed to the parent company where the latter could not have been unaware of the anti-competitive conduct of its subsidiary. If Community law had been thus applied correctly, in this case the fine would have had to be imposed only on KTN because the latter was not unaware of the anti-competitive conduct of its subsidiary AST.

75.     Finally, KTS asserts that the Court of First Instance failed in its obligation to give an adequate statement of reasons and acted unjustly because it failed to consider its plea concerning the imposition of separate fines on Thyssen Stahl and KTN.

76.     KTS acknowledges that, in paragraphs 55 to 68 of the contested judgment, the Court of First Instance had already annulled the contested decision to the extent to which it imputed to KTN the infringement committed by Thyssen Stahl.  (26) However, it emphasises that that annulment was prompted by reasons of a procedural nature, namely a breach of KTN’s rights of defence. Accordingly, there is nothing to prevent the Commission from recommencing the administrative procedure, remedying that irregularity and adopting a decision which is substantively identical to the contested decision. KTS infers from this that, notwithstanding the annulment of that decision for breach of KTN’s rights of defence, the Court of First Instance was required to examine the substantive plea which it had put forward.

77.     As regards the first complaint, it seems to me that it is based on a manifestly incorrect understanding of the concept of an ‘undertaking’.

78.     It is well established that, in competition law, an ‘undertaking’ is an ‘economic unit for the purpose of the subject-matter of the agreement in question even if in law that economic unit consists of several persons, natural or legal’. (27) The Court of Justice considers that a parent company and its subsidiary form an economic unit when the subsidiary ‘does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company’. (28)

79.     In this case, the Court of First Instance found that AST had acted independently throughout the duration of the infringement. At the time of the infringement, AST and KTN thus constituted two separate undertakings and not, as AST contends, a single economic entity. The Court of First Instance did not therefore breach the principle of equal treatment since, in accordance with that principle, the basic amount of the fine was the same for each undertaking which had participated in the infringement, including AST and KTN.

80.     As regards the second complaint, it must be borne in mind, first, that AST was acquired by KTN during the period of the infringement and, second, that a distinction must be drawn between the period before that acquisition and the period thereafter.

81.     As regards the period before the acquisition, it need merely be noted that, in its judgment in Case C-286/98 P,  (29) the Court of Justice annulled the abovementioned judgment of the Court of First Instance in Case T-354/94 Stora Kopparbergs Bergslags v Commission on the same point as that raised by AST. The Court of Justice expressly held that the fact of a parent company knowing that its subsidiary had participated in a cartel during the period prior to its acquisition was not sufficient to impute to it responsibility for the infringements committed by that subsidiary during that period.

82.     Accordingly, the Court of First Instance cannot be criticised for not having applied the criterion adopted in its judgment in Case T-354/94 Stora Kopparbergs Bergslags v Commission.

83.     As regards the period after the acquisition, it will be remembered that the decisive criterion is whether the subsidiary acted independently or in accordance with instructions from its parent company. It is settled case-law that ‘the anti-competitive conduct of an undertaking can be attributed to another undertaking where it has not decided independently upon its own conduct on the market, but carried out, in all material respects, the instructions given to it by that other undertaking, having regard in particular to the economic and legal links between them’. (30)

84.     It is true that, in its judgment in KNPBT v Commission,  (31) the Court of Justice appears to have used a slightly different criterion, which comes close to the awareness test advocated by AST. In that judgment, the Court of Justice held that the parent company was responsible for the infringement committed by its subsidiary during the period following its acquisition on the ground that, having itself participated in the infringement through the intermediary of another subsidiary, it was ‘aware, and must also have approved of [its subsidiary’s] participation in the infringement’. (32)

85.     However, that slight divergence in the case-law (or apparent divergence, at first sight) has no impact on the answer to be given in response to AST’s second complaint.

86.     Regardless of the fact that the Court of Justice has not confirmed the criterion of awareness in its subsequent case-law, AST has not in any event established that such a criterion includes the obligation, on the Commission, to go back as far as the parent company. In other words, AST has not shown that, even if it were supposed that the criterion of awareness should be applied, the Commission is, accordingly, required to impute the anti-competitive conduct of a subsidiary to its parent company.

87.     It seems to me, on the contrary, that, even in such a case, the imputation of responsibility for the infringement to the parent company should merely be a straightforward option available to the Commission. Any other solution would be tantamount to depriving the Commission of the considerable degree of latitude which the legislature and the Community judicature have recognised in its favour in relation to fines.  (33)

88.     Accordingly, I am of the opinion that, whatever the criterion adopted (that of effective control or that of awareness), the Court of First Instance did not err in law by holding that AST’s anti-competitive conduct during the period after its acquisition could be imputed to AST and not to KTN.

89.     Finally, with regard to the third complaint, I should point out that one of the main preoccupations of the Court of First Instance, and of the Court of Justice, is to reduce as far as possible the duration of proceedings before it and the length of its judgments. However, KTS does not appear to share that concern.

90.     Its contention boils down to the view that, when it decides to annul a measure because of a formal defect or a procedural defect, the Community judicature must nevertheless go on to examine the other pleas put forward on matters of substance, in order to determine whether the defendant institution will be able to adopt an identical decision on completion of the new administrative procedure.

91.     It is clear that that approach cannot be accepted, in so far as it contravenes the principle that the pleas considered should be kept to a minimum, which applies to proceedings concerning the legality of measures.

92.     By virtue of that principle, a court considering questions of legality, having decided to uphold a plea and to annul the contested measure, is no longer required to examine the other pleas put forward by the applicant. It can confine itself to basing its annulment decision on only one of the pleas raised by the applicant.

93.     It is true that, in certain cases, the Community judicature has, notwithstanding its decision to annul the contested measure, decided to go on and consider other complaints made by the applicant. However, it has absolute authority to decide whether such a decision is justified by the sound administration of justice and it cannot, in any circumstances, be required to undertake such an examination or to explain any choice made by it in that connection.

94.     In view of these various factors, I therefore suggest that the Court reject the fourth plea in law put forward by AST and KTS.

E – The fifth plea: errors made in assessing the duration of the infringement

95.     The fifth plea is put forward by all three applicants.

96.     At first instance, they contended that the Commission had not properly assessed the duration of the infringement in taking the view that the concertation had started at the Madrid meeting in December 1993 and continued until the day on which the contested decision was adopted. In their view, the change in the reference values of the alloy surcharge formula decided on at the Madrid meeting was a single occurrence and not an ongoing process.

97.     The Court of First Instance rejected that plea for the following reasons:  (34)

‘174

As is clear from the case-law, it is incumbent on the Commission to prove not only the existence of the agreement but also its duration … .

175

In this case, it is therefore appropriate to consider whether the Commission, in finding … that the concertation continued until the date on which the Decision was adopted, discharged the burden of proof attaching to it … .

176

It is important, first, to bear in mind that the purpose of the agreement was to ensure that, in the method for calculating the alloy surcharge, the producers of stainless steel flat products used identical reference values with a view to raising the final price, of which the alloy surcharge constitutes a significant part.

177

As is clear from the Decision, that agreement commenced at the Madrid meeting of 16 December 1993, on which date the participating undertakings decided to apply the alloy surcharge thus calculated as from 1 February 1994. It also found that, as from the latter date, those undertakings, which included KTS and AST, had in fact applied to their sales in Europe, with the exception of Spain and Portugal, an alloy surcharge calculated in accordance with the method based on the reference values agreed at the Madrid meeting. Finally, it observed in paragraph 50 of the Decision that only Avesta had announced, in November 1996, that it would use a different method for calculating the alloy surcharge.

178

It must be observed that the applicants do not deny, and did not deny during the administrative procedure, that the reference values for the alloy surcharge, as agreed at the Madrid meeting, were not changed before the adoption of the Decision. Since the undertakings in question continued actually to apply the reference values on which they had agreed at that meeting, the fact that no express decision was then taken regarding the period for which the agreement would be applied cannot prove that the agreement was sporadic rather than continuous.

…

181

Finally, it is important to bear in mind that, with regard to cartels which are no longer in force, it is sufficient, for Article 85 of the EC Treaty, and by analogy Article 65 of the ECSC Treaty, to be applicable that they continue to produce their effects after they have formally ceased to be in force [Case 51/75 EMI Records [1976] ECR 811, paragraph 15; Case 243/83 Binon [1985] 2015, paragraph 17; Case T-2/89 Petrofina v Commission [1991] II‑1087, paragraph 212; and Case T-327/94 SCA Holding v Commission [1998] ECR II-1373, paragraph 95]. The same applies a fortiori where, as in this case, the effects of the agreement lasted until adoption of the Decision, without the agreement having been formally brought to an end.

182

It follows that, since [KTN, AST and Acerinox] did not cease applying the reference values agreed at the Madrid meeting before the adoption of the Decision, the Commission was entitled to take the view that the infringement had lasted until that date.’

98.     Although the appeals are particularly confused on this point, the fifth plea can be regarded as comprising four parts, which I shall examine successively.

99.     In the first part, KTS and AST put forward various arguments to show that the agreement did not last from December 1993 to January 1998, as held by the Court of First Instance, but that it ceased (several weeks) after the Madrid meeting, once the new alloy surcharge formula had been introduced. (35)

100.   On this point, it will be recalled that, according to settled case-law,  (36) the Court of Justice has no jurisdiction to establish the facts or, in principle, to examine the evidence which the Court of First Instance accepted in support of those facts. Provided that the evidence has been properly obtained and the general principles of law and the rules of procedure in relation to the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the value which should be attached to the evidence produced to it. That appraisal does not therefore constitute, save where the clear sense of the evidence has been distorted, a point of law which is subject to review by the Court of Justice.

101.   In this case, the Court of First Instance found, on the basis of information produced by the Commission, that the ‘agreement commenced at the Madrid meeting of 16 December 1993’  (37) and that ‘the undertakings in question continued actually to apply the reference values on which they had agreed at that meeting [until the adoption of the contested decision]’. (38)

102.   In those circumstances, the first part of the plea is manifestly inadmissible. Since the applicants have not shown, or even contended, that the Court of First Instance distorted the factual information and evidence produced to it, its appraisal concerning the duration of the infringement constitutes a finding of fact which cannot be called in question in the context of the present appeals.

103.   The second part of the plea relates to paragraph 63 of the Acerinox v Commission judgment, which corresponds to paragraph 181 of the KTS and AST v Commission judgment, reproduced above.

104.   Acerinox considers that that paragraph is vitiated by an error in law in so far as none of the judgments cited by the Court of First Instance supports the view that Articles 81 EC and 65 of the ECSC Treaty could apply to agreements which have ceased to be in force but which ‘continue to produce their effects after they have formally ceased to be in force’. An analysis of those judgments shows, on the contrary, in their view, that, for it to apply Article 81 EC, the Community judicature always requires some concertation between undertakings. However, that factor is lacking in this case because, according to Acerinox, the concertation between the parties ceased in the first months of 1994.

105.   As the Commission points out, this complaint is based on a false premiss. Acerinox takes as a starting point the proposition that, according to the Court of First Instance, the agreement lasted for only a few weeks (from the Madrid meeting until the start of 1994) but continued to produce its effects after it ceased.

106.   However, as we have just seen, the Court of First Instance held that the agreement had started at the Madrid meeting in December 1993 and lasted until the adoption of the contested decision on 21 January 1998.

107.   In those circumstances, the complaint made by Acerinox is not to the point.  (39) Even if it were assumed to be well founded (that is to say, that the Court of First Instance did indeed misinterpret the case-law it cited), that complaint could not lead to the contested judgment being set aside, because the fact remains that the operative part of the judgment is based on the Court of First Instance’s view that the agreement, and therefore the concertation, extended from December 1993 to 21 January 1998.

108.   In the third part, KTS and AST criticise the Court of First Instance for including the administrative procedure in the duration of the infringement. In their view, such inclusion is contrary to the principle of the protection of legitimate expectations since, during the administrative procedure, the Commission did not clearly inform them that it considered that the infringement was continuing.

109.   It must be borne in mind that, in this case, the Court of First Instance considered that the Commission had clearly informed the applicants that the infringement was continuing during the administrative procedure. In paragraph 215 of the KTS and AST v Commission judgment, it stated:

‘[The Commission] cannot be criticised for taking the view that the infringement was continuous, without informing the applicants of that fact during the administrative procedure. In fact, in paragraph 50 of the statement of objections notified to them on 24 April 1997, the Commission clearly stated that “concertation began at the Madrid meeting in December 1993 and has been pursued” ’.

110.   Accordingly, the third part of the plea is manifestly inadmissible. Since the applicants have not shown, or even contended, that the Court of First Instance had distorted factual information and evidence on this point, its assessment of the information received by the applicants in the course of the administrative procedure constitutes a finding of fact and of evidence which cannot be challenged in the present appeals.

111.   In any event, this part of the plea is manifestly without basis.

112.   By virtue of settled case-law, the principle of the protection of legitimate expectations cannot be relied on by a person who has committed a manifest infringement of the rules in force. (40) An undertaking which deliberately engages in anti-competitive conduct therefore has no right to allege a breach of that principle on the pretext that the Commission did not clearly inform it that its conduct constituted an infringement.

113.   On this point, moreover, the applicants’ argument is perplexing. Ultimately, it amounts to claiming that an undertaking may infringe the competition rules for so long as the Commission has not drawn its attention to the illegal nature of its conduct. It is clear that such an inversion of the logic of the Treaty rules on competition cannot be allowed.

114.   Finally, in the fourth part, Acerinox criticises the Court of First Instance for failing to discharge its obligation to state reasons. It states that, at first instance, it had maintained that the infringement had ceased in July 1994 on the ground that, at that time, nickel prices had reached their initial level. However, it claims that the Court of First Instance rejected that argument as irrelevant ‘without any further explanation’. (41)

115.   A glance at paragraph 62 of the Acerinox v Commission judgment is sufficient to show that the complaint is manifestly unfounded. The Court of First Instance stated:

‘[T]he applicant’s argument that the agreement lasted, at most, until July 1994 when nickel prices “reached their original level” is entirely irrelevant and must be rejected. Since the reference values of the alloying materials to which the infringement related remained unchanged, the inference to be drawn from the fact that, on a given date, the price of nickel reached its “original level” is certainly not that the infringement then ceased to have anti-competitive effects but simply that the calculation of the alloy surcharge then had to take account of that development.’

116.   Contrary to Acerinox’s contention, the Court of First Instance went on to set out the reasons for rejecting the argument and thus satisfied its formal obligation to give reasons.

117.   Accordingly, I suggest that the Court reject the fifth plea in its entirety.

F – The sixth plea: breach of the rights of the defence, of the principle of equal treatment and of the principle of the protection of legitimate expectations

118.   The sixth plea in law is directed against the Court of First Instance’s finding concerning cooperation by the applicants during the administrative procedure. That appraisal concerned, in particular, the Commission notice on the non-imposition or reduction of fines in cartel cases (‘Leniency Notice’ or ‘the Notice’). (42)

119.   The Leniency Notice contains the rules which have come to be recognised as constituting the Commission’s ‘leniency policy’, that is to say favourable treatment which it accords to undertakings that have cooperated with it during the administrative procedure and have thus enabled it to determine (more easily) that competition rules have been infringed and, if appropriate, to bring the infringement to an end. Although it was superseded in 2002, (43) the Notice was applicable when the contested decision was adopted.

120.   The Leniency Notice covers three kinds of cases in which an undertaking may be granted a reduction of the fine. The first case, in Section B, is that of an undertaking which has informed the Commission about a secret cartel before the Commission has undertaken an investigation: in such cases there may be a reduction of at least 75% of the amount of the fine. The second case, set out in Section C of the Notice, is that of an undertaking which has disclosed a secret cartel after the Commission has undertaken an investigation that has failed to provide sufficient grounds for initiating the procedure leading to a decision: in such cases there may be a reduction of 50 to 75% of the amount of the fine.

121.   Finally, the last case is provided for in Section D of the Notice, which states that ‘where an enterprise cooperates without having met all the conditions set out in Sections B or C, it will benefit from a reduction of 10 to 50% of the fine that would have been imposed if it had not cooperated’. Section D(2) states:

‘Such cases may include the following:

–

before a statement of objections is sent, an enterprise provides the Commission with information, documents or other evidence which materially contribute to establishing the existence of the infringement;

–

after receiving a statement of objections, an enterprise informs the Commission that it does not substantially contest the facts on which the Commission bases its allegations.’

122.   In this case, the Commission took the view that all the undertakings concerned were entitled, in different ways, to benefit from the provisions of Section D of the Notice.

123.   In recitals 97 to 101 in the preamble to the Decision, it observed that Usinor and Avesta had cooperated to a greater extent than the other undertakings. It said that those two operators had, in particular, admitted the existence of the infringement. In contrast, the other undertakings, in particular KTN, AST and Acerinox, had contested the existence of the infringement and did not provide any factual information or evidence not already known to it. The Commission concluded that those factors justified a 10% reduction in the fine for all the undertakings, with the exception of Avesta and Usinor, to which it granted a reduction of 40%.

124.   Before the Court of First Instance, the applicants contested that decision. In a first complaint, they contended that the Commission had contravened Section D of the Leniency Notice and had also breached the principle of equal treatment in taking the view that they had not produced any new information.

125.   The Court of First Instance upheld that first complaint. It considered that the degree of cooperation provided by the undertakings concerned (KTN, AST, Acerinox and Usinor) was comparable, in so far as they had all provided the Commission with similar information at the same stage of the procedure and in similar circumstances. It therefore granted the applicants a reduction of 20% of the amount of their fine instead of the 10% granted by the Commission.

126.   In a second complaint, the applicants criticised the Commission for taking the view that they had contested the infringement. They maintained that, in the administrative procedure, they had recognised the existence of the cartel and that, in any event, the acknowledgement of an infringement could not constitute a factor for reducing fines.

127.   In that regard, the Court of First Instance found, on the basis of information in the file, that the applicants had not expressly admitted the existence of the infringement in the administrative procedure: they had merely recognised the materiality of the facts alleged against them.  (44) The Court of First Instance then set out the following reasoning:  (45)

‘272

Second, in so far as the applicants still claim that the undertakings’ failure to object to the legal characterisation of the facts made by the Commission should not constitute a factor to be relied on for reducing fines, it is necessary to determine whether, as they assert, the reduction made in that respect was contrary to the [Leniency Notice] and infringes the principle of the protection of legitimate expectations and the rights of the defence.

273

In the first place, it must be pointed out that, although Section D(2), of the [Leniency Notice] does in fact refer to a case in which, following the statement of objections, an undertaking informs the Commission that it does not dispute the materiality of the facts on which the Commission bases its accusations, it cannot be interpreted as relating solely to that type of cooperation.

274

The list of the types of cooperation in Section D(2) of the [Leniency Notice] is merely indicative, as is confirmed by the use of the expression “may include”.

275

It must also be remembered that that notice also covers cases in which one of the undertakings concerned has reported a cartel to the Commission, either before the Commission has carried out an investigation (Section B of the notice) or after the Commission has conducted an investigation but has been unable to find a sufficient basis to justify initiating the procedure for the adoption of a decision (Section C of the notice). The fact that the notice thus expressly provides for the possibility of admitting an infringement at that stage of the administrative procedure does not mean that it cannot be admitted at a later stage.

276

Moreover, admission of the existence of a cartel facilitates the Commission’s work in an investigation more than the mere admission of the materiality of the facts.

277

Since the Commission was required to assess the extent of the cooperation shown by the undertakings without infringing the principle of equal treatment, AST therefore had no reason to entertain any legitimate expectation that there would be no differentiation as between undertakings which admitted the facts and those which also admitted the existence of a cartel.

278

Finally, KTN’s argument that the Commission in fact penalised undertakings which availed themselves of their rights of defence cannot be accepted. It has not been alleged that, by reducing the amount of the fines on account of cooperation, the Commission in this case compelled KTN to provide answers whereby it might have had to admit the existence of the infringement … .’

128.   Consequently, the Court of First Instance confirmed that the Commission was entitled to grant a larger reduction of the fine to those undertakings which had acknowledged the existence of the cartel than to those that had admitted the materiality of the facts attributed to them.

129.   In their sixth plea, the applicants challenge the Court of First Instance’s appraisal. They put forward three complaints.

130.   First, they consider that the Court of First Instance breached their rights of defence and, more particularly, the right not to incriminate oneself upheld by the judgment of 18 October 1989 in Orkem v Commission.  (46) Having accepted that a larger reduction of the fine can be granted to undertakings which have admitted the existence of the infringement, the Court of First Instance’s reasoning is liable to discourage, or indeed penalise, undertakings which exercise their rights of defence by contesting the legal classification of the facts adopted by the Commission.

131.   Acerinox adds that Orkem established a clear distinction between leniency offered in exchange for evidence (which is lawful) and leniency offered in exchange for admissions of guilt (which is unlawful). In its view, the Court of First Instance’s reasoning disregards that distinction since it rewards admissions of guilt.

132.   Second, the applicants consider that the Court of First Instance’s appraisal is contrary to the principle of equal treatment. They state that, in the contested judgments, the Court of First Instance held that the cooperation provided by them in the administrative procedure was ‘comparable’ with that provided by Usinor. In those circumstances, the mere fact that Usinor additionally admitted the existence of the cartel does not constitute an objective reason for granting it a further reduction of its fine – particularly because the legal classification of the facts in the course of the administrative procedure is a matter reserved exclusively to the Commission and there is no apparent reason why the acceptance of such a classification is likely to facilitate the Commission’s inquiries which, by definition, relate to matters of fact and not matters of law.

133.   Third, the applicants maintain that the Court of First Instance’s reasoning is in breach of the principle of the protection of legitimate expectations. There is nothing in the Leniency Notice to give the impression that a greater reduction of a fine will be granted to undertakings which have acknowledged the existence of a cartel. Section D(2) of the Notice refers, on the contrary, only to cases where undertakings do not ‘substantially contest the facts’.  (47)

134.   Before these various complaints are examined, it should be borne in mind that the Community judicature has already held that the practice of granting leniency is compatible with the rights of the defence and, in particular, with the right not to incriminate oneself, upheld in the Orkem judgment. In Finnboard v Commission  (48) and BPB De Eendracht v Commission,  (49) the Court of Justice and the Court of First Instance held that exemption from or reduction of the fine in return for cooperation provided during the administrative procedure did not lead the undertakings to incriminate themselves or penalise their exercise of their rights of defence.  (50)

135.   That case-law is accounted for by the importance of the concept of coercion in relation to the right not to incriminate oneself. For that right to be breached, the person concerned must actually have been coerced to provide information or evidence capable of proving the infringement. (51)

136.   Thus, it has been held that requests for information under Article 11(1) of Council Regulation No 17 of 6 February 1962, first regulation implementing Articles 85 and 86 of the Treaty  (52) did not impinge on the right to not incriminate oneself since, in such circumstances, undertakings are not required to answer the questions put to them by the Commission. (53) On the other hand, decisions requesting information under Article 11(5) of Regulation No 17 may breach the rights of the defence since they expose undertakings to a penalty, in the form of a periodic penalty payment or a fine, if they refuse to answer.  (54)

137.   The element of coercion is also to be found in the case-law of the European Court of Human Rights. That court considers that the right to be silent is infringed only when a person has been coerced to provide information capable of proving the infringement. (55) On the other hand, if the person concerned has not been coerced to speak or give evidence, the right not to incriminate oneself is not breached.  (56)

138.   Consequently, the Community Courts have recognised that the practice of granting clemency is lawful. They have observed that that practice, albeit encouraging undertakings to cooperate with the Commission, certainly does not coerce them to disclose facts or evidence since the undertaking’s decision to provide such information is always voluntary. (57)

139.   In view of the foregoing, I consider that the distinction drawn by the Court of First Instance – between the undertakings which did not substantially contest the facts and those which admitted the existence of the cartel – does not impinge on their rights of defence.

140.   Indeed, like the disclosure of matters of fact or evidence, admission of the infringement is a matter entirely within the will of the undertaking. It is not in any way coerced to admit the existence of the cartel or to provide information capable of proving its existence. The degree of cooperation which the undertaking wishes to offer in the administrative procedure is therefore governed entirely by the undertakings’ freedom of choice and is not in any circumstances imposed by the Commission.

141.   In that regard, it would be wrong to believe that the distinction drawn by the Court of First Instance has the effect of penalising undertakings which have exercised their rights of defence. As the Court of Justice  (58) and the Court of First Instance  (59) have already emphasised, those undertakings which exercise their rights of defence do not for that reason have a heavier fine imposed on them. They are simply penalised according to the gravity of the infringement and in accordance with the other criteria which may lawfully be taken into consideration, subject to review by the Court of Justice and the Court of First Instance.

142.   Consequently, I consider that the distinction at issue involves no encroachment on the rights of the defence.

143.   Nor does that distinction appear to run counter to the principle of equal treatment.

144.   According to settled case-law,  (60) the principle of equal treatment means that comparable situations must not be treated differently and that different situations must not be treated in the same way, unless such treatment is objectively justified. However, in this case, the difference of treatment between the undertakings which did not substantially contest the facts and those which acknowledge the existence of the infringement is specifically justified on objective grounds, linked with the lightening of the Commission’s workload.

145.   The Community judicature has repeatedly held that a reduction in the amount of the fine is justified only if the undertaking’s conduct enabled the Commission to establish the infringement with less difficulty and, as the case may be, to put an end to it. (61)

146.   As the Court of First Instance emphasised in paragraph 276 of the KTS and AST v Commission judgment, admission of the existence of the infringement facilitates the Commission’s work much more than mere recognition of the materiality of the facts. In the latter case, the Commission must still, on the basis of the facts admitted by the undertaking (for example, the fact that it participated at a meeting with other producers), establish the anti-competitive nature of the conduct of that undertaking (for example, the fact that the meeting sought to achieve a concerted increase in prices). On the other hand, in the former case, the Commission is simply relieved of that task because the undertaking has acknowledged the anti-competitive or illegal nature of its conduct.

147.   Nor does that approach seem to me to be liable to encroach upon the powers of the Commission in the administrative procedure. Without going into any discussion concerning the extent of those powers, it need merely be stated that, contrary to the applicants’ contention, the fine is not reduced because of the acceptance of a specific legal classification (for example, the fact that the undertaking’s conduct constitutes an agreement on prices within the meaning of Article 81(1)(a) EC) but because of the admission of the anti-competitive nature of such conduct (for example, the fact that the purpose of the meeting was to increase prices jointly). Undertakings are not therefore being invited to provide a specific classification, that being a matter for the Commission alone.

148.   Finally, as far as the last complaint is concerned, I consider that the distinction drawn by the Commission does not infringe the principle of the protection of legitimate expectations.

149.   It need merely be observed that, even before the adoption of the Leniency Notice, the Commission was already applying the distinction at issue. Thus, in Finnboard v Commission, it had granted a reduction of two thirds of the amount of the fine to undertakings which admitted the existence of the infringement, whereas those which had not substantially contested the facts had been allowed a reduction of only one third of the amount of the fine.  (62) The Court of First Instance, without having its decision overturned by the Court of Justice, held that that distinction was justified in view, in particular, of the conduct engaged in by the undertakings concerned in the course of the administrative procedure. (63)

150.   Contrary to the applicants’ contention, there is nothing to justify the view that the Commission had decided to abandon the distinction at issue when adopting the Leniency Notice. On the contrary, it is clear from Section D(2) thereof and, in particular, the use of the phrase ‘may include’ that admission of the materiality of the facts is only one of the kinds of conduct which may give rise to a reduction in the amount of the fine for cooperation.

151.   Accordingly, the Court of First Instance did not err in law in any way by taking the view that the Commission was fully entitled to grant a larger reduction of the fine to those undertakings which acknowledged the existence of the cartel than to those which merely did not substantially contest the facts.

152.   I therefore suggest that the Court of Justice reject the applicants’ sixth plea.

V –  The cross-appeal

153.   The cross-appeal is directed against paragraphs 55 to 68 of the KTS and AST v Commission judgment, which annulled the contested decision to the extent to which it attributed the infringement committed by Thyssen Stahl to KTN.

154.   Before the Court of First Instance, KTS maintained that the contested decision infringed the first paragraph of Article 36 of the ECSC Treaty on the ground that its right to be heard regarding Thyssen Stahl’s conduct had not been respected.

155.   The Court of First Instance upheld that plea in the following terms:

‘55

The rights of the defence on which KT[S] relies are, in this case, safeguarded by the first paragraph of Article 36 of the ECSC Treaty, pursuant to which, before imposing any pecuniary sanction provided for by the Treaty, the Commission must give the party concerned the opportunity to submit its comments.

56

According to settled case-law, respect for the rights of the defence in all proceedings in which sanctions may be imposed is a fundamental principle of Community law which must be observed in all circumstances, even if the proceedings in question are administrative proceedings. The proper observance of that general principle requires that the undertaking concerned be afforded the opportunity, from the stage of the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents relied on by the Commission in support of its allegations. It follows, in particular, that the Commission may rely only on facts on which the parties concerned have had an opportunity to make known their views … .

57

It must also be borne in mind that it falls, in principle, to the legal or natural person managing the undertaking in question when the infringement was committed to answer for that infringement, even if, when the decision finding the infringement was adopted, another person had assumed responsibility for running the undertaking ... .

58

In this case, it is clear from the file, first, that on 24 April 1997, KTN and Thyssen Stahl were each addressees of the statement of objections and that each of those undertakings replied to it separately by letters from their respective representatives on 30 June 1997. In its reply to the statement of objections, KTN also expressly stated that it was submitting its observations “in the name and on behalf of KTN”.

59

Second, it is clear that KTN, which was succeeded by the applicant KTS, agreed by its letter of 23 July 1997 to the Commission to be held liable for conduct imputed to Thyssen Stahl for the period from 1993, even though Thyssen Stahl’s business in the product sector concerned had not been transferred to it until 1 January 1995.

60

In fact, in its abovementioned letter, KTN expressly stated:

“With regard to the abovementioned proceeding [Case IV/35.814 – KTN], you made a request to the legal representative of Thyssen Stahl ... that [KTN] should expressly confirm that it took over liability for any acts done by Thyssen Stahl following the transfer of Thyssen Stahl’s stainless steel flat products business, in so far as the stainless steel flat products at issue in these proceedings are concerned, and this also applies to the period dating back to 1993. We hereby expressly give you that confirmation.”

61

Finally, in paragraph 102 of the Decision, the Commission inferred from that statement that account should be taken of it in the operative part of the Decision. Consequently, the Commission considered KTN to be responsible for those acts of Thyssen Stahl which were regarded as contrary to Article 65(1) of the ECSC Treaty … and therefore imposed on it a fine relating also to the acts imputed to Thyssen Stahl … . In that connection, the Commission expressed the view, in paragraph 78 of the Decision, that the duration of the infringement imputed to Thyssen Stahl extended from December 1993, the date of the Madrid meeting at which the concertation between the producers of stainless steel flat products commenced, to [1] January 1995, the date on which Thyssen Stahl ceased business in that sector.

62

It must be emphasised that it is undisputed that, in view of the statement made by KTN on 23 July 1997, the Commission was, by way of exception, entitled to impute to KTN liability for the unlawful conduct of which Thyssen Stahl was accused between December 1993 and 1 January 1995 … .

63

However, in so far as it constitutes an exception to the principle that a natural or legal person may be penalised only for acts imputed to it individually, such a statement must be interpreted strictly. In particular, unless he gives some indication to the contrary, the person making such a statement cannot be presumed to have waived the right to exercise his rights of defence.

64

However, contrary to what, in essence, the Commission contends, KTN’s statement of 23 July 1997 could not be interpreted as implying, in addition, a waiver of its right to be heard regarding the acts imputed to Thyssen Stahl in the statement of objections notified to Thyssen Stahl on 24 April 1997, for which KTN agreed from that time to be held responsible for the purposes of the imposition of any fine.

65

That is particularly true since the statement of objections was sent separately to KTN and Thyssen Stahl and, quite clearly, that statement did not attribute to KTN liability for the acts alleged against Thyssen Stahl.

66

It must therefore be held in this case that the Commission did not give KTN an opportunity to submit its comments on the reality and relevance of the acts imputed to Thyssen Stahl and that, consequently, KTN was not able to exercise its rights of defence in that connection.

67

Accordingly, as is clear from the case-law, the Commission was not entitled to attribute liability for the acts of Thyssen Stahl to KTN or, consequently, to impose a fine on KTN in respect of the acts attributed to Thyssen Stahl when, on that point, the statement of objections was addressed only to the latter … .

68

In view of the foregoing, KTN’s plea must be declared well founded and therefore Article 1 of the Decision must be annulled to the extent to which it imputes to KTN the infringement of which Thyssen Stahl was accused.’

156.   Consequently, the Court of First Instance decided, in paragraph 315 of the judgment, to reduce the fine imposed on KTN by EUR 3 564 000.

157.   In its appeal, the Commission seeks annulment of the contested judgment on that point. It puts forward four pleas in support:

–

distortion of evidence;

–

non-observance of the conditions for transferring responsibility for anti-competitive conduct from one undertaking to another;

–

breach of the requirements concerning rights of defence; and

–

material inaccuracy of the facts and distortion of evidence.

A – The first plea: distortion of evidence

158.   In its first plea, the Commission criticises the Court of First Instance for holding that KTN had not declined to exercise its rights of defence regarding the conduct attributed to Thyssen Stahl.

159.   It considers that, on that point, the Court of First Instance distorted the evidence produced to it. It did not take sufficient account of certain evidence in the file, such as the statement of objections of 24 April 1997, Thyssen Stahl’s response to the statement of objections and the letter by which the Commission had asked KTN to confirm that it agreed to accept responsibility for Thyssen Stahl’s conduct. The Commission considers that a full examination of those documents would necessarily have shown that KTN had waived its right to be heard regarding the conduct attributed to Thyssen Stahl.

160.   Under Article 32d of the ECSC Treaty, which is identical to Article 225 EC, an appeal may be on points of law only, to the exclusion of any appraisal of the facts. (64)

161.   However, it is settled case-law that the Court of Justice is entitled to examine the findings of fact made by the Court of First Instance where the documents in the file appear to show that such findings are materially inaccurate.  (65) The Court of Justice has made it clear that, in such cases, the substantive inaccuracy must be obvious from the documents before the Court, without its being necessary to undertake a fresh assessment of the facts. (66)

162.   It is also settled case-law that, whilst the Court of First Instance has exclusive jurisdiction to assess the value which should be attached to the evidence, (67) the distortion of evidence is a matter which can be submitted for review by the Court of Justice in an appeal. (68) A plea alleging distortion of evidence must be directed towards securing a finding that the Court of First Instance changed the meaning, the content or the scope of the evidence produced to it. The distortion may thus derive from a change to the content of the evidence,  (69) failure to take account of essential aspects thereof  (70) or a failure to take account of its context.  (71)

163.   In this case, the Commission contends that the Court of First Instance distorted the evidence produced to it (in that it did not take account of all the evidence in the file) and that its findings of fact are therefore vitiated by substantive inaccuracy (since KTN waived its entitlement to exercise its rights of defence). Contrary to KTS’s contention,  (72) the Commission’s first plea is therefore admissible by virtue of the case-law cited above.

164.   However, I consider the plea to be manifestly without foundation.

165.   There is nothing in the file to show that KTN waived its entitlement to exercise its rights of defence regarding the conduct attributed to Thyssen Stahl for the period December 1993 to January 1995. Neither in its response to the first statement of objections,  (73) nor in its response to the second statement of objections,  (74) nor in its record of access to the file, (75) nor in its statement of 23 July 1997, (76) did KTN indicate that it did not wish to have its views heard concerning the substance and relevance of the conduct attributed to Thyssen Stahl over the period in question.

166.   In addition, to the extent to which it derogates from application of a fundamental principle of Community law, namely observance of the rights of the defence in any proceedings which might give rise to penalties, such a waiver must without fail be explicit and unequivocal. As emphasised by the Court of First of Instance in paragraph 63 of the contested judgment, no one can be presumed to have waived the right to exercise his rights of defence.

167.   In those circumstances, the documents relied on by the Commission (the statement of objections of 24 April 1997, Thyssen Stahl’s response to the statement of objections and the letter in which it asked KTN to confirm that it agreed to accept responsibility for Thyssen Stahl’s conduct) could not in any event show that KTN had waived its right to exercise its rights of defence. In so far as they emanate from an author other than the undertaking concerned (KTN), the Court of First Instance could not accord them probative value regarding that undertaking’s intention to decline to exercise its rights.

168.   In view of the foregoing, I consider that the Court of First Instance did not err in any way by finding that KTN had not waived its right to exercise its rights of defence in relation to the conduct attributed to Thyssen Stahl.

169.   I therefore propose that the Court of Justice reject the Commission’s first plea.

B – The second plea: breach of the conditions for transfer of the responsibility of the conduct of one undertaking to another

170.   In its second plea, the Commission maintains that the Court of First Instance infringed the conditions for transferring responsibility for the anti-competitive conduct of one undertaking to another.

171.   It states that, quite apart from the question whether KTN waived its rights of defence, it was in any event entitled to impute to it the infringement committed by Thyssen Stahl. In its view, the conditions laid down by the case-law for derogating from the principle of the ‘personal responsibility’ of undertakings were fulfilled since KTN purported to be the economic and legal successor of Thyssen Stahl. The Commission relies, in that connection, on the judgments in Suiker Unie and Others v Commission  (77) and in CRAM and Rheinzink v Commission,  (78) and the judgments of the Court of First Instance in Enichem Anic v Commission  (79) and NMH Stahlwerke v Commission.  (80)

172.   In my view, this second plea is also devoid of any basis.

173.   According to settled case-law, (81) it falls, in principle, to the legal or natural person managing the undertaking in question when the infringement was committed to answer for that infringement, even if, when the decision finding the infringement was adopted, another person had assumed responsibility for operating the undertaking.

174.   Moreover, the Court of Justice has made it clear that the ‘economic continuity’ test, which allows derogation from the principle of the personal responsibility of undertakings in the case of business takeovers, comes into play only where the legal person responsible for operating the undertaking at the time of the infringement has ceased to exist in law after the commission of the infringement. (82)

175.   In this case, it is clear from the file (83) that Thyssen Stahl continued to exist for the entire duration of the infringement and (at least) until the date on which the contested decision was adopted.

176.   The case-law relied on by the Commission is not therefore applicable to this case.

C – The third plea: breach of the requirements relating to the rights of the defence

177.   In its third plea, the Commission criticises the Court of First Instance for imposing over-strict requirements concerning the rights of the defence.

178.   It states that, in this case, KTN was the addressee of two statements of objections, one of 19 December 1995 and one of 24 April 1997; that, throughout the administrative procedure, KTN submitted observations not only on its own behalf but also on behalf of Thyssen Stahl; that, in its second statement of objections, the Commission made it clear that KTN was assuming responsibility for Thyssen Stahl’s conduct; that, in a later letter, it asked KTN to confirm that fact, and that, in its statement of 23 July 1997, KTN confirmed that it would assume responsibility for Thyssen Stahl’s conduct ‘also for the period up to 1993’.

179.   The Commission considers that, in those circumstances, KTN was perfectly apprised of the complaints made against Thyssen Stahl and that it knew that the Commission would impute to it the infringement committed by that company. Accordingly, observance of the rights of the defence did not, contrary to what the Court of First Instance held, require that the Commission should again invite KTN to submit its views on the conduct imputed to Thyssen Stahl. By imposing that requirement, the Court of First Instance therefore erred in law.

180.   On this point, it must be borne in mind that observance of the right to be heard is, in all proceedings in which penalties may be imposed, a fundamental principle of Community law which must be respected even if the proceedings in question are administrative proceedings. (84)

181.   That principle requires, in particular, that the statement of objections sent by the Commission to an undertaking should contain the essential information relied on against that undertaking, such as the facts at issue, the classification attributed to them and the evidence relied on by the Commission, so that the undertaking is in a position properly to put forward its arguments in the context of administrative proceedings against it. (85)

182.   Moreover, in its judgments in Compagnie Maritime Belge Transports and Others v Commission (86) and ARBED v Commission, (87) the Court stated that ‘[g]iven its importance, the statement of objections must specify unequivocally the legal person on whom fines may be imposed’.

183.   In this case, it is true that, in its statement of objections of 24 April 1997, the Commission had stated that KTN ‘assumed responsibility for the conduct of Thyssen Stahl before it was established.’ (88) However, as the Court of First Instance held, in the contested judgment, that communication did not clearly indicate that the Commission intended imposing a fine on KTN by reason of the infringement committed by Thyssen Stahl. Nor did it contain any clear invitation addressed to KTN to submit its observations as to the reality and relevance of the conduct attributed to Thyssen Stahl, or on the documents on which the Commission had relied in that connection.

184.   Moreover, the ambiguity deriving from the statement of objections of 24 April 1997 was kept up, in particular, by the fact that that statement was sent to KTN and to Thyssen Stahl separately. By sending two communications, the Commission let it be understood that Thyssen Stahl might have a fine imposed upon it for the infringement committed by it before 1 January 1995.

185.   In view of the foregoing, I consider that the statement of objections of 24 April 1997 did not meet the requirements of clarity laid down by the case-law. The Court of First Instance did not therefore in any way err in law by finding that the Commission had not properly put KTN in a position to submit its observations on the conduct imputed to Thyssen Stahl.

186.   Consequently, I suggest that the Court reject the Commission’s third plea.

D – The fourth plea: material inaccuracy of the facts and distortion of evidence

187.   In its fourth plea, the Commission criticises the Court of First Instance for holding that KTN had not been able to exercise its rights of defence regarding Thyssen Stahl’s conduct.

188.   It considers, in essence, that the contested judgment is vitiated, in that respect, by material inaccuracy of the facts and distortion of evidence. According to it, ‘the documents in the file show that KTN, in agreement with Thyssen [Stahl], spontaneously and on several occasions made known its views on the criticisms levelled by the Commission [against] Thyssen [Stahl] and that it thus exercised its rights of defence’. (89)

189.   Quite apart from the fact that the Commission has not supported that plea in its pleadings, (90) I consider that it is not in any event well founded.

190.   It must be borne in mind that, according to the case-law, (91) the Court of Justice may censure the findings of fact of the Court of First Instance for material inaccuracy only where that inaccuracy is obvious from the documents in the file. Similarly, we have seen that a plea alleging distortion of evidence can be upheld only if the Court of First Instance actually altered the meaning, the content or the scope of the evidence produced to it. (92)

191.   However, the Court of First Instance committed no such error in this case.

192.   Indeed, a reading – even a close reading – of the file  (93)  does not reveal, certainly and clearly, that KTN exercised its rights of defence concerning the conduct of Thyssen Stahl. It is not, in my opinion, clear that the observations lodged by KTN in the course of the administrative procedure also covered, in one way or another, the conduct attributed by the Commission to Thyssen Stahl.

193.   In those circumstances, it cannot be considered that the Court of First Instance committed a manifest error in its findings of fact or any distortion of evidence.

194.   I therefore propose that the Court reject the Commission’s last plea.

VI –  Disposal of the case by the Court of Justice

195.   Pursuant to the first paragraph of Article 61 of the Statute of the Court of Justice, if an appeal is well founded, the Court of Justice will quash the decision of the Court of First Instance. In such a case, the Court of Justice may either give a final judgment itself in the matter, where the state of the proceedings so permits, or refer the case back to the Court of First Instance for judgment.

196.   In this case, I consider that the state of the proceedings is such that judgment can be given on the point on which I have proposed annulment. (94) I therefore propose that the Court of Justice retain the case and give final judgment on the plea in law put forward at first instance by Acerinox.

VII –  The action at first instance

197.   Acerinox seeks annulment of the contested decision and puts forward two pleas, one of which is based on the claim that it did not participate in the infringement.

198.   In support of that plea, Acerinox maintains that the Commission did not produce evidence of any agreement or concerted practice concerning the application of the alloy surcharge in the Spanish market.

199.   It states, in particular, that no such evidence of collusion can be found in the Avesta fax of 14 January 1994, which states ‘Acerinox has announced that surcharges will apply from 1 April 1994 (yes April!)’. According to Acerinox, ‘[t]his information … with regard to an “announcement” by the applicant … was inaccurate’ (95) and ‘[n]o such “announcement” was made’. (96)

200.   In that connection, it should be borne in mind that, if there is a dispute as to the existence of an infringement of the competition rules, it is incumbent on the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement. (97)

201.   It will also be remembered that no principle of Community law precludes the Commission from relying, for the purpose of finding an infringement, on a single document, provided that its evidential value is undoubted and that that document itself definitely attests to the existence of the infringement. (98) Similarly, the Commission may use as evidence of the conduct of an undertaking correspondence exchanged between third parties: (99) the fact that the incriminated undertaking is not the author (100) or the addressee (101) of the document does not deprive it of its probative value, which must be assessed solely by reference to its content and scope.

202.   In that connection, in order to establish the evidential value of a document, it is necessary to take account of several factors, such as the origin of the document, the circumstances in which it was drawn up, its addressee and its content, and to ask whether, according to those elements, the information contained in it appears sound and reliable. (102) Moreover, an undertaking cannot validly contest the evidential value of a document unless it puts forward detailed rebuttals capable of raising doubts as to the truth of the information which it contains. (103)

203.   In this case, the evidential value of the Avesta fax of 14 January 1994 is not in any doubt.

204.   That fax was drawn up by Avesta’s representative at the Madrid meeting, namely Mr W.  (104) The fax followed the meeting, during which the main producers of stainless steel flat products engaged in concertation as to the application, as from the date of that meeting, of an alloy surcharge calculated on the basis of identical reference values. It was also drawn up shortly after Ugine transmitted to all its competitors, by fax of 11 January 1994, detailed information concerning the alloy surcharges which it intended applying in the French market as from 1 February 1994.

205.   Moreover, the fax at issue was sent to Avesta’s distribution subsidiaries and followed an earlier fax of mid-December 1993, in which Avesta announced the possibility of introducing the alloy surcharge as from February 1994. (105)

206.   Finally, as regards its content, the fax at issue also appears to be sound and reliable. In it Avesta informs its subsidiaries of the position expressed by a number of its competitors as to the date of application of the alloy surcharge in their domestic markets in the following terms:

‘According to our information, certain initiatives have already been taken:

–

Ugine have announced surcharges effective from 1 February 1994, of 430 GBP 4.36, 304 GBP 47.55, 316 GBP 74.03;

–

Acerinox have announced surcharges will apply from 1 April 1994 (yes April!);

–

Outokumpu are thought to be following this line but no confirmation yet;

–

Thyssen expect to announce something next Monday;

–

Krupp – we have no current information;

–

ILVA have announced a base price change effective from February but applicable to stockists and not end-users;

–

ALZ are still considering their position.’

207.   Accordingly, the information to the effect that Acerinox undertook to apply the alloy surcharge in the Spanish market as from 1 April 1994 seems hardly challengeable. Moreover, Acerinox has not put forward any detailed arguments such as to raise doubts concerning the truth of that information.

208.   In view of the foregoing, I consider that the fax at issue constitutes evidence of the fact that, on 14 January 1994, Acerinox had in any event expressed its intention to apply an alloy surcharge in Spain, in accordance with the arrangements agreed by the undertakings concerned at the Madrid meeting, and had therefore joined the cartel.

209.   I therefore propose that the Court reject Acerinox’s plea.

VIII –  Costs

210.   Under the first subparagraph of Article 69(2) of the Rules of Procedure, which applies to appeals by virtue of Article 118 of the same rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In this case, the Commission has asked for costs against the appellants and the appellants have failed in (almost) all their heads of claim. Accordingly, in my opinion, they should be ordered to pay all the costs of the present appeal proceedings.

211.   Furthermore, the first paragraph of Article 122 of the Rules of Procedure provides that, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs. In this case, Acerinox’s contention that it did not participate in the cartel in the Spanish market has not been upheld and the Commission has applied for costs against the appellant. Acerinox should therefore be ordered to pay the costs on this point, in accordance with Article 69(2) of the Rules of Procedure. For the rest, there is no reason to change the operative part of the Acerinox v Commission judgment.

IX –  Conclusion

212.   On the basis of all the foregoing considerations, I propose that the Court of Justice should give judgment in which it:

(1)

annuls the judgment of the Court of First Instance of the European Communities of 13 December 2001 in Case T-48/98 Acerinox v Commission to the extent to which it rejects the applicant’s plea that it did not participate in the cartel in the Spanish market;

(2)

for the rest, dismisses the appeals;

(3)

dismisses the application for annulment brought by Compañía Española para la Fabricación de Aceros Inoxidables SA (Acerinox);

(4)

orders Compañía Española para la Fabricación de Aceros Inoxidables SA (Acerinox), ThyssenKrupp Stainless GmbH and ThyssenKrupp Acciai Speciali Terni SpA to bear the costs incurred by them in the appeals and the costs of the Commission of the European Communities in these proceedings;

(5)

orders Compañía Española para la Fabricación de Aceros Inoxidables SA (Acerinox) to bear the costs incurred by it in the proceedings at first instance and two thirds of the Commission’s costs in those proceedings, and orders the Commission to bear one third of its own costs in those proceedings.

1 –

Original language: French.

2 –

Joined Cases T-45/98 and T-47/98 Krupp Thyssen Stainless and Acciai Speciali Terni v Commission [2001] ECR II-3757, also referred to as ‘the contested judgment’ or ‘the KTS and AST v Commission judgment’, and Case T-48/98 Compañía Española para la Fabricación de Aceros Inoxidables (Acerinox) v Commission [2001] ECR II‑3859, also referred to as ‘the contested judgment’ or ‘the Acerinox v Commission judgment’.

3 –

OJ 1998 L 100, p. 55 (‘the contested decision’ or ‘the Decision’).

4 –

Case C-197/99 P [2003] ECR I-8461, points 65 to 68 of my Opinion.

5 –

See, to that effect, Case C-259/96 P Council v De Nil and Impens [1998] ECR I‑2915, paragraphs 32 to 34; Case C-449/98 P IECC v Commission [2001] ECR I‑3875, paragraph 70; and the orders of 19 July 1995 in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I-2165, paragraph 58, of 14 October 1996 in Case C-268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 52, and of 25 June 1998 in Case C‑159/98 P(R) Netherlands Antilles v Council [1998] ECR I-4147, paragraph 70.

6 –

Case C-298/93 P Klinke v Court ofJustice [1994] ECR I-3009, paragraphs 21 to 25.

7 –

Ibid. (paragraphs 19 and 20).

8 –

Application lodged by Acerinox in Case T-48/98 (p. 9). See also the reply lodged by Acerinox in that case (point 10).

9 –

See points 203 to 209 of this Opinion.

10 –

See, to that effect, Case C-196/99 P Aristrain v Commission [2003] ECR I-0000, paragraph 102.

11 –

See, in particular, Case C-49/92 P Commission v Anic Partecipazioni [1999] ECR I-4125, paragraphs 118 and 119, and Case C-199/92 P Hüls v Commission [1999] ECR I-4287, paragraph 161.

12 –

.Commission v Anic Partecipazioni, paragraph 119.

13 –

.Commission v Anic Partecipazioni, paragraph 121, and Hüls v Commission, paragraph 162.

14 –

.Hüls v Commission, paragraphs 149, 150 and 168.

15 –

Ibid., paragraphs 167 and 168.

16 –

See Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T‑46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T‑104/95 CimenteriesCBR and Others v Commission [2000] ECR II-491, paragraphs 1865, 1910 and 1938.

17 –

See point 32 of this Opinion.

18 –

Case C-274/99 P [2001] ECR I‑1611.

19 –

.Connolly v Commission, paragraph 120.

20 –

.Connolly v Commission, paragraph 121, and Belgium v Commission, paragraph 81.

21 –

Idem.

22 –

Acerinox’s appeal, paragraph 46.

23 –

It will be noted that the legality of the Guidelines has been challenged in Joined Cases C‑189/02 P, C-202/02 P, C-205/02 P to C-208/02 P and C-213/02 P Dansk Rørindustri and Others v Commission, pending before the Court, in which Advocate General Tizzano delivered his Opinion on 8 July 2004.

24 –

Acerinox’s application in Case T-48/98 (p. 19).

25 –

Case T-354/94 [1998] ECR II-2111, paragraphs 82 and 83.

26 –

See, in that connection, points 154 to 156 of this Opinion.

27 –

Case 170/83 Hydrotherm [1984] ECR 2999, paragraph 11.

28 –

Case 48/69 ICI v Commission [1972] ECR 619, paragraph 133. See also Case 15/74 Sterling Drug [1974] ECR 1147, paragraph 41; Case 16/74 Winthrop [1974] ECR 1183, paragraph 32; Case 30/87 Bodson [1988] ECR 2479, paragraph 19; Case 66/86 Ahmed Saeed Flugreisen and Silver Line Reisebüro [1989] ECR 803, paragraph 35; and Case C-73/95 P Viho v Commission [1996] ECR I-5457, paragraph 16.

29 –

Case C-286/98 P Stora Kopparbergs Bergslags v Commission [2000] ECR I-9925, paragraph 39.

30 –

Case C-294/98 P Metsä-Serla and Others v Commission [2000] ECR I‑10065, paragraph 27. See also ICI v Commission, paragraphs 132 and 133; Case 107/82 AEG v Commission [1983] ECR 3151, paragraph 49; Case C-310/93 P BPBIndustriesandBritish Gypsum v Commission [1995] ECR I-865, paragraph 11, and also my Opinion in that case, points 20 to 31; Case C‑279/98 P Cascades v Commission [2000] ECR I‑9693, paragraph 77, and also Advocate General Mischo’s Opinion in that case, point 59; and Aristrain v Commission, paragraph 96.

31 –

Case C-248/98 P [2000] ECR I‑9641, paragraphs 71 to 74.

32 –

Ibid., paragraph 73, fourth subparagraph.

33 –

Regarding this discretion, see, in particular, Case T-150/89 Martinelli v Commission [1995] ECR II‑1165, paragraph 59; Case T-49/95 Van Megen Sports v Commission [1996] ECR II‑1799, paragraph 53; Case T-229/94 Deutsche Bahn v Commission [1997] ECR II‑1689, paragraph 127; and Case T-224/00 Archer Daniels Midland and Archer Daniels Midland Ingredients v Commission [2003] ECR II-2597, paragraph 55.

34 –

.KTS and AST v Commission judgment. See also the Acerinox v Commission judgment, paragraphs 55 to 66.

35 –

See AST’s appeal (paragraphs 12 and 14 to 17) and KTS’s appeal (paragraphs 11, 12, 16, 17 and 19).

36 –

See the recent examples of Case C-122/01 T. Port v Commission [2003] ECR I‑4261, paragraph 27, and the order of 9 July 2004 in Case C-116/03 Fichtner v Commission, not published in the ECR, paragraph 33.

37 –

.KTSandAST v Commission judgment, paragraph 177, and Acerinox v Commission judgment, paragraph 57.

38 –

.KTSandAST v Commission judgment, paragraph 178, and Acerinox v Commission judgment, paragraph 60.

39 –

It will be remembered that, according to settled case-law, the Court of Justice rejects from the outset complaints which are directed against grounds put forward on a subsidiary basis or for the sake of completeness by the Court of First Instance. The Court of Justice considers that, provided that the operative part of the Court of First Instance’s judgment is based on other grounds put forward as part of the main reasoning, such complaints cannot lead to the contested judgment being set aside and accordingly cannot be accepted (for a recent example, see T. Port v Commission, paragraphs 16, 17 and 30 to 33, and my Opinion in that case, point 23).

40 –

See, in particular, Case 67/84 Sideradria v Commission [1985] ECR 3983, paragraph 21; Case C-96/89 Commission v Netherlands [1991] ECR I-2461, paragraph 30; Joined Cases T-551/93 and T-231/94 to T-234/94 Industrias Pesqueras Campos and Others v Commission [1996] ECR II-247, paragraph 76; Case T-126/97 Sonasa v Commission [1999] ECR II-2793, paragraph 34; Case T-199/99 Sgaravatti Mediterranea v Commission [2002] ECR II-3731, paragraph 111; Case T-125/01 José Marti Peix v Commission [2003] ECR II‑865, paragraph 107; and Case T‑217/01 Forum des migrants v Commission [2003] ECR II-1563, paragraph 76.

41 –

.  – Acerinox’s appeal, paragraph 43.

42 –

OJ 1996 C 207, p. 4.

43 –

Commission notice on immunity from fines and reduction of fines in cartel cases (OJ 2002 C 45, p. 3).

44 –

.KTS and AST v Commission judgment, paragraphs 260 to 268, and Acerinox v Commission judgment, paragraph 147.

45 –

.KTS and AST v Commission judgment. See also Acerinox v Commission judgment, paragraphs 145 to 150.

46 –

Case 374/87 [1989] ECR 3283 (‘Orkem’ or ‘the Orkem judgment’).

47 –

In its appeal, KTS also argues, on a subsidiary basis, that the scope of its statements in the course of the administrative procedure was misconstrued. It contends that, contrary to the finding of the Court of First Instance, it expressly acknowledged the existence of the cartel during the administrative procedure, and therefore the Court of First Instance should have granted it the same reduction of the fine as that allowed to Usinor. In my view, that argument is manifestly inadmissible. In paragraphs 262 to 267 of the KTS and AST v Commission judgment, the Court of First Instance found, on the basis of information in the file, that KTS had not acknowledged the existence of the cartel during the administrative procedure. Since KTS has not shown, or even contended, that the Court of First Instance distorted the evidence on this point, the Court of First Instance’s conclusion that KTS contested the existence of the cartel constitutes an appraisal of evidence which cannot be called in question in the context of the present appeals.

48 –

Case C-298/98 P [2000] ECR I-10157, paragraph 58.

49 –

Case T-311/94 [1998] ECR II‑1129, paragraphs 323 and 324.

50 –

See also the Opinion of Advocate General Mischo in Finnboard v Commission, points 22 to 27.

51 –

Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375, paragraph 275.

52 –

OJ, English Special Edition, 1959-1962, p. 87.

53 –

Joined Cases T-305/94 to T-307/94, T-313/94 to T-316/94, T-318/94, T‑325/94, T-328/94, T‑329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II‑931, paragraphs 455 to 457, confirmed by the Court of Justice in Limburgse Vinyl Maatschappij and Others v Commission, paragraph 279.

54 –

See, in particular, Orkem, paragraphs 34 and 35, and the Court of Justice judgment in Limburgse Vinyl Maatschappij and Others v Commission, paragraph 279, and Case T‑112/98 Mannesmannröhren-Werke v Commission [2001] ECR II‑729, paragraph 67 et seq.

55 –

See judgments of the European Court of Human Rights, in the case of Funke, 25 February 1993 (Series A No 256 A, § 44); Saunders v. United Kingdom, 17 December 1996 (Reports of Judgments and Decisions 1996-VI, p. 2044, §§ 68 to 76); and J.B. v. Switzerland, 3 May 2001 (Reports of Judgments and Decisions 2001-III, p. 436, §§ 65 and 66).

56 –

European Court of Human Rights, Murray v. United Kingdom, 8 February 1996 (Reports of Judgments and Decisions 1996-I, p. 30, § 50).

57 –

See also, to that effect, W. Wils, ‘The Commission notice on the non-imposition or reduction of fines in cartel cases: a legal and economic analysis’, E. L. Rev., 1997, pp. 125 to 140 (at p. 137).

58 –

.Finnboard v Commission, paragraph 58, and the Opinion of Advocate General Mischo in that case, point 24.

59 –

.BPB De Eendracht v Commission, paragraph 323, and Case T-347/94 Mayr-Melnhof v Commission [1998] ECR II‑1751, paragraph 308.

60 –

See, in particular, Case 106/83 Sermide [1984] ECR 4209, paragraph 28, and Case C-174/89 Hoche [1990] ECR I‑2681, paragraph 25.

61 –

See BPB de Eendracht v Commission, paragraph 325; Case T-338/94 Finnboard v Commission [1998] ECR II-1617, paragraph 363, upheld on appeal by the Court of Justice in Finnboard v Commission, and Mayr-Melnhof v Commission, paragraph 330.

62 –

See the Opinion of Advocate General Mischo in Finnboard v Commission, point 13.

63 –

Judgment of the Court of First Instance in Finnboard v Commission, paragraphs 364 and 365, and judgment of the Court of Justice in Finnboard v Commission, paragraph 58.

64 –

See, in particular, Case C-283/90 P Vidrányi v Commission [1991] ECR I‑4339, paragraph 12, and Case C-53/92 P Hilti v Commission [1994] ECR I‑667, paragraph 10.

65 –

Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I‑1981, paragraph 49, and Case C-265/97 P VBA v Florimex and Others [2000] ECR I‑2061, paragraph 139; orders of 16 September 1997 in Case C-59/96 P Koelman v Commission [1997] ECR I‑4809, paragraph 33, and of 6 October 1997 in Case C‑55/97 P AIUFFASSandAKT v Commission [1997] ECR I‑5383, paragraph 24.

66 –

Case C-8/95 P New Holland Ford v Commission [1998] ECR I‑3175, paragraph 72; VBA v Florimex and Others, paragraph 139; and order of 27 January 2000 in Case C-341/98 P Proderec v Commission, not published in the ECR, paragraph 27.

67 –

See, in particular, Commission v Brazzelli Lualdi and Others, paragraph 66; Case C‑401/96 P Somaco v Commission [1998] ECR I-2587, paragraph 54; and Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 24.

68 –

.Hilti v Commission, paragraph 42; Case C‑362/95 P Blackspur DIY and Others v Council and Commission [1997] ECR I‑4775, paragraph 29; New Holland Ford v Commission, paragraph 26; Baustahlgewebe v Commission, paragraph 24; Case C-257/98 P Lucaccioni v Commission [1999] ECR I-5251, paragraphs 45 to 47; and the orders in AIUFFASS and AKT v Commission, paragraph 25, Case C-140/96 P Dimitriadis v Court of Auditors [1997] ECR I-5635, paragraph 35, and Proderec v Commission, paragraph 28.

69 –

For a case of distortion of the contested measure, see Case C-164/98 P DIR International Film and Others v Commission [2000] ECR I‑447, paragraphs 47 and 48, and Case C-197/99 P Belgium v Commission [2003] ECR I-8461, paragraph 67.

70 –

See, in a case of distortion of the contested measure, the order of 11 April 2001 in Case C‑459/00 P(R) Commission v Trenker [2001] ECR I‑2823, paragraph 71.

71 –

See, in a case of distortion of the contested measure, Case C-277/01 P Parliament v Samper [2003] ECR I‑3019, paragraph 40.

72 –

Reply to the cross-appeal, paragraph 3.

73 –

KTS’s application in Case T-45/98, Annex 6.

74 –

Ibid., Annex 7.

75 –

Ibid., Annex 8.

76 –

Ibid., Annex 9.

77 –

Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 [1975] ECR 1663, paragraphs 77 to 84.

78 –

Joined Cases 29/83 and 30/83 [1984] ECR 1679, paragraphs 6 to 9.

79 –

Case T‑6/89 [1991] ECR II‑1623, paragraph 235.

80 –

Case T-134/94 [1999] ECR II‑239, paragraphs 135 to 138.

81 –

See, in particular, Cascades v Commission, paragraph 78; Case C-286/98 P Stora Kopparbergs Bergslags v Commission, paragraph 37; and Case C-297/98 P SCA Holding v Commission [2000] I‑10101, paragraph 27.

82 –

See Commission v Anic Partecipazioni, paragraph 145; Case C-286/98 P Stora Kopparbergs Bergslags v Commission, paragraph 38, and Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P Aalborg Portland and Others v Commission [2004] ECR I-0000, paragraph 359.

83 –

See the information given by KTS in its reply to the cross-appeal (paragraph 35), which has not been disputed by the Commission.

84 –

Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 9.

85 –

See, to that effect, Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 26; Case C-62/86 AKZO v Commission [1991] ECR I-3359, paragraph 29; and Joined Cases C‑89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C‑125/85 to C-129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I-1307, paragraph 135.

86 –

Joined Cases C-395/96 P and C-396/96 P [2000] ECR I-1365, paragraphs 143 and 146.

87 –

Case C-176/99 P [2003] ECR I-0000, paragraph 21.

88 –

Annex 4 to the letter addressed by KTS on 10 March 1998 to the Registry of the Court of First Instance in Case T-45/98 (paragraph 11 F – free translation).

89 –

Commission’s response (paragraph 55).

90 –

In paragraphs 94 to 102 of its response, it analyses judgments which, by its own admission (see response, paragraph 54), concern a different complaint, namely the third plea concerning the requirements relating to rights of the defence.

91 –

See point 161 of this Opinion.

92 –

See point 162 of this Opinion.

93 –

See, in particular, KTN’s response to the first statement of objections; KTN’s response to the second statement of objections; the record of access to the file on 28 May 1997; and KTN’s statement of 23 July 1997 (respectively Annexes 6, 7, 8 and 9 of KTN’s application in Case T‑45/98).

94 –

See points 27 to 39 of this Opinion.

95 –

Acerinox’s application in Case T-48/98 (p. 9).

96 –

Idem.

97 –

See, in particular, Baustahlgewebe v Commission, paragraph 58.

98 –

.CimenteriesCBR and Others v Commission, paragraph 1838.

99 –

See, in particular, Suiker Unie and Others, paragraph 164, and Case T-56/99 Marlines v Commission [2003] ECR I-0000, paragraph 46.

100 –

See, in particular, Case T-100/92 La Pietra v Commission [1994] ECR-SC I-A-83 and II‑275, paragraph 37.

101 –

See, in particular, Joined Cases T-5/00 and T-6/00 Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2003] ECR II-0000, paragraph 174.

102 –

Opinion of Judge Vesterdorf acting as Advocate General in Case T-1/89 Rhône-Poulenc v Commission [1991] ECR II‑867, at II‑956, and Cimenteries CBRand Others v Commission, paragraphs 1838 and 3172.

103 –

See Cimenteries CBRand Others v Commission, paragraphs 1346 to 1349, and, for the opposite case, Case T-65/02 Chetaud v Parliament of 8 July 2003, not published in the ECR, paragraph 48 et seq.

104 –

The name of this person was held back in the contested decision (recital 21) and therefore it will not be disclosed in this Opinion.

105 –

The fax in question states: ‘Martin mentioned in a fax before Christmas that there is a possibility that surcharges ... could be applied from February onwards’.