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Language of document : ECLI:EU:T:1997:192

ORDER OF THE COURT OF FIRST INSTANCE (Second Chamber, Extended Composition)

10 December 1997 (1)

(Procedure - Joinder - Article 23 of the Protocol on the (ECSC) Statute of the Court of Justice - Defendant institution - Documents relating to the case - Production - Confidentiality)

In Case T-134/94,

NMH Stahlwerke GmbH, a company incorporated under German law established in Sulzbach-Rosenberg (Germany), represented by Paul B. Schäuble, Siegfried Jackermeier and Reinhard E. Ingerl, Rechtsanwälte, Munich, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 8-10 Rue Mathias Hardt,

applicant,

Commission of the European Communities, represented initially by Julian Currall and Norbert Lorenz, of its Legal Service, and by Géraud de Bergues, a national civil servant on secondment to the Commission, and subsequently by Jean-Louis Dewost, Director-General of the Legal Service, and Julian Currall, acting as Agents, assisted by Heinz-Joachim Freund, Rechtsanwalt, Frankfurt-am-Main, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

in Case T-136/94,

Eurofer ASBL, an association constituted under Luxembourg law established in Luxembourg, represented by Norbert Koch, of the Brussels Bar, with an address for service in Luxembourg at the offices of Eurofer ASBL, GISL, 17-25 Avenue de la Liberté,

applicant,

Commission of the European Communities, represented initially by Julian Currall and Norbert Lorenz, of its Legal Service, and by Géraud de Bergues, a nationalcivil servant on secondment to the Commission, and subsequently by Jean-Louis Dewost, Director-General of the Legal Service, and Julian Currall, acting as Agents, assisted by Heinz-Joachim Freund, Rechtsanwalt, Frankfurt-am-Main, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

in Case T-137/94,

ARBED SA, a company incorporated under Luxembourg law established in Luxembourg, represented by Alexandre Vandencasteele, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Paul Ehmann, 19 Avenue de la Liberté,

applicant,

Commission of the European Communities, represented initially by Julian Currall, of its Legal Service, and Géraud de Bergues, a national civil servant on secondment to the Commission, and subsequently by Julian Currall and Guy Charrier, also a national civil servant on secondment to the Commission, and finally by Jean-Louis Dewost, Director-General of the Legal Service, and Julian Currall, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

in Case T-138/94,

Cockerill-Sambre SA, a company incorporated under Belgian law established in Brussels, represented by Alexandre Vandencasteele, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 8-10 Rue Mathias Hardt,

applicant,

defendant,

in Case T-141/94,

Thyssen Stahl AG, a company incorporated under German law established in Duisburg (Germany), represented by Joachim Sedemund and Frank Montag, Rechtsanwälte, Cologne, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,

applicant,

defendant,

in Case T-145/94,

Unimétal - Société Française des Aciers Longs SA, a company incorporated under French law established in Rombas (France), represented by Antoine Winckler, of the Paris Bar, and Caroline Levi, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Elvinger and Hoss, 2 Place Winston Churchill,

applicant,

defendant,

in Case T-147/94,

Krupp Hoesch Stahl AG, a company incorporated under German law established in Dortmund (Germany), represented by Otfried Lieberknecht, Karlheinz Moosecker, Gerhard Wiedemann and Martin Klusmann, Rechtsanwälte, Düsseldorf, with an address for service in Luxembourg at the Chambers of Axel Bonn, 62 Avenue Guillaume,

applicant,

defendant,

in Case T-148/94,

Preussag Stahl AG, a company incorporated under German law established in Salzgitter (Germany), represented by Horst Satzky, Bernhard M. Maassen, Martin Heidenhain and Constantin Frick, Rechtsanwälte, Bremen, with an address for service in Luxembourg at the Chambers of René Faltz, 6 Rue Heine,

applicant,

defendant,

in Case T-151/94,

British Steel plc, a company incorporated under English law established in London, represented by Philip G.H. Collins and John E. Pheasant, Solicitors, Brussels, with an address for service in Luxembourg at the Chambers of Marc Loesch, 11 Rue Goethe,

applicant,

Commission of the European Communities, represented initially by Julian Currall, of its Legal Service, and Géraud de Bergues, a national civil servant on secondment to the Commission, and subsequently by Jean-Louis Dewost, Director-General of the Legal Service, and Julian Currall, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

in Case T-156/94,

Siderúrgica Aristrain Madrid, SL, a company incorporated under Spanish law established in Madrid, represented by Antonio Creus Carreras and Xavier Ruiz Calzado, of the Barcelona Bar,

applicant,

Commission of the European Communities, represented initially by Julian Currall and Francisco Enrique González Díaz, of its Legal Service, and by Géraud de Bergues, a national civil servant on secondment to the Commission, and subsequently by Jean-Louis Dewost, Director-General of the Legal Service, and Julian Currall, acting as Agents, assisted by Ricardo Garcia Vicente, of the Madrid Bar, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

and in Case T-157/94,

Empresa Nacional Siderúrgica, SA (Ensidesa), a company incorporated under Spanish law established in Avilés (Spain), represented by Santiago Martinez Lage and Jaime Perez-Bustamente Köster, of the Madrid Bar, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,

applicant,

Commission of the European Communities, represented initially by Julian Currall and Francisco Enrique González Díaz, of its Legal Service, and Géraud de Bergues, a national civil servant on secondment to the Commission, and subsequently by Jean-Louis Dewost, Director-General of the Legal Service, and Julian Currall, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Second Chamber, Extended Composition),

composed of: A. Kalogeropoulos, President, C.P. Briët, C.W. Bellamy, A. Potocki and J. Pirrung, Judges,

Registrar: H. Jung,

makes the following

Order

1.

In the order made on 19 June 1996 in these cases ([1996] ECR II-537, 'the order of 19 June 1996), the Court of First Instance (Second Chamber, Extended Composition) reserved its decision on the applicants' request for access to the documents in the file transmitted by the defendant to the Court of First Instance 'the file transmitted to the Court) pursuant to Article 23 of the Protocol on the (ECSC) Statute of the Court of Justice that are classified by the defendant as internal documents, and on their requests for the production of documents not contained in that file, and ordered the defendant to explain in detail and specifically why it considered that certain documents in the file classified by it as 'internal documents could not, in its view, be communicated to the applicants.

2.

The defendant replied to the Court of First Instance by letters dated 11 September 1996 (in Case T-151/94, 'British Steel), 12 September 1996 (in Case T-137/94, 'ARBED, Case T-138/94, 'Cockerill-Sambre, Case T-145/94, 'Unimétal, Case T-156/94, 'Aristrain, and Case T-157/94, 'Ensidesa) and 13 September 1996 (in Case T-134/94, 'NMH, Case T-136/94, 'Eurofer, Case T-141/94, 'Thyssen, Case T-147/94, 'Krupp Hoesch, and Case T-148/94, 'Preussag).

3.

In the same letters the defendant requested that, 'having regard to the importance it attaches to the matter, the cases be referred to the Court of First Instance sitting in plenary session, pursuant to Article 14 of the Rules of Procedure. The applicants were invited to submit their observations on those requests and replied by letters lodged between 1 and 24 October 1996. The applicants in NMH, ARBED, Cockerill-Sambre, Preussag, British Steel and Ensidesa oppose such a referral. They maintain, essentially, that there is no longer any justification for such a referral at this stage in the procedure and that the sole purpose of the defendant's request is to call in question the order of 19 June 1996.

4.

In addition, the Court of First Instance (Third Chamber, Extended Composition) requested the parties by letter from the Registrar of 30 March 1995 to submit in writing their observations on the joinder of the cases solely for the oral procedure. In view of the problems which might be involved in joining a series of cases with four different languages of procedure, the applicants were also asked to confirm their agreement to the following procedural conditions to be applied in the event of joinder:

'- the applicants shall be permitted to consult at the Court Registry the original files in each case, that is to say the pleadings together with theirannexes, but copies of those documents shall not be supplied by the Court and no translations of the pleadings or annexes into the other languages of the procedure shall be prepared by the Court;

- the Reports for the Hearing shall be sent to each applicant in the language of that applicant's case and, for all the other cases, in the languages in which the Report for the Hearing is produced, namely French, and the language of the case concerned.

5.

In their replies to the Court's letter of 30 March 1995 10 of the 11 applicants and the defendant agreed in principle to joinder of the cases solely for the purposes of the oral procedure, and to the conditions relating to consultation of the file and communication of the Reports for the Hearing set out in paragraph 4, above.

6.

The applicant in NMH, however, stated that joinder of all the cases for a common oral procedure would not be in its interest since in its case there was only one infringement to be considered, namely the exchange of confidential information in the Poutrelles Committee and the Walzstahl-Vereinigung. It maintains that if the cases are joined for the purposes of the oral procedure the larger part of that procedure, which may take days or even weeks, will be devoted to infringements which do not concern it, and it cannot be expected to bear the lawyers' costs which that would occasion for it.

The request that the cases be referred to the Court sitting in plenary session

7.

According to the combined provisions of Article 14, first paragraph, and Article 51(1) of the Rules of Procedure, whenever the legal difficulty or the importance of the case or special circumstances so justify, the Chamber hearing the case may at any stage in the proceedings, either on its own initiative or at the request of one of the parties, propose to the Court of First Instance sitting in plenary session that the case be referred to it or to a Chamber composed of a different number of judges.

8.

Those provisions do not need to be applied at the present stage in the proceedings.

9.

The Court of First Instance (Second Chamber, Extended Composition) has already ruled in the order of 19 June 1996 (see in particular paragraphs 11 to 15 and 67 to 74) on the questions of principle which might, owing to their legal difficulty or special importance, have justified a proposal to refer the cases to the Court of First Instance sitting in plenary session, and at that stage the defendant did not consider it necessary to submit a request under Articles 14 and 51 of the Rules of Procedure. As regards the questions on which the Court of First Instance has yet to rule, now that the defendant has complied with paragraph 3 of the operative part of the order of 19 June 1996, they may be settled merely by applying to theindividual case the principles laid down in that order, in particular the need to balance, in the particular circumstances of the case and in the light of the pleas and arguments of the parties, the requirements of the principle of the effectiveness of administrative action and of the principle of judicial review of administrative acts, while respecting the rights of the defence and the principle audi alteram partem (order of 19 June 1996, paragraph 74). In the circumstances referral to the Court of First Instance sitting in plenary session does not appear to be justified.

Joinder of the cases

10.

Article 50 of the Rules of Procedure provides: 'The President may, at any time, after hearing the parties and the Advocate General, order that two or more cases concerning the same subject-matter shall, on account of the connection between them, be joined for the purposes of the written or oral procedure or of the final judgment. The cases may subsequently be disjoined.

11.

In this instance it is in the interests of the proper administration of justice to join the cases, which concern the same subject-matter, for the purposes of the oral procedure and measures of inquiry or of organization of procedure enabling the proceedings to be conducted under the best conditions, the procedural conditions described in paragraph 4, above, being applied.

12.

As regards the objections raised by NMH, they may be met if necessary by special measures of organization of the oral procedure prescribed by the Court of First Instance at a later date.

The requests for access by the applicants to the defendant's internal documents

Arguments of the parties

13.

The arguments submitted by the applicants in support of their request for access to the defendant's internal documents are summarized in paragraphs 49 to 63 of the order of 19 June 1996. It should be recalled, in particular, that in their replies to the letter of the Court of First Instance of 21 July 1995 (25 July 1995 in Case T-151/94; see the order of 19 June 1996, paragraph 8) nine of the 11 applicants identified on the list of internal documents supplied by the Commission those which they considered to be of particular importance and communication of which they request, not only on the basis of Article 23 of the Statute of the Court of Justice but also in the light of the case-law of the Court of First Instance in the context of the EC Treaty, in particular the judgments in Case T-30/91 Solvay v Commission [1995] ECR II-1775 and Case T-36/91 ICI v Commission [1995] ECR II-1847. Most of the applicants referred expressly, in order to support their request for communication of the documents in question, either to the various pleas on which they rely in support of their action for annulment or to certain new considerationsresulting from their consultation of the list of the documents in the Commission's internal file, which was communicated to them during the proceedings (see the order of 19 June 1996, paragraph 63). The request relates essentially to the documents concerning:

(a) the possible participation of certain officials from the Directorate-General for Industry (DG III), and even from other Directorates-General of the Commission, in establishing and administering certain mechanisms identified in the contested decision, that is to say Commission Decision 94/215/ECSC of 16 February 1994 relating to a proceeding under Article 65 of the ECSC Treaty concerning agreements and concerted practices engaged in by European producers of beams (OJ 1994 L 116, p. 1, hereinafter 'the Decision), as agreements or practices restricting competition, and more particularly in the 'exchanges of confidential information and the 'harmonization of extras, or at least the knowledge which they had or should have had thereof, according to 8 of the 11 applicants; such documents are relevant in the light in particular of the pleas or arguments of 8 of the 11 applicants relating to breach of Article 65(1) of the ECSC Treaty and of the general principles of the protection of legitimate expectations, legal certainty and estoppel (see the application in ARBED, pp. 5, 12, 44 to 56, 60, 65 and 66; the application in Cockerill-Sambre, pp. 5, 7, 37 to 47, 51, 57 and 58; the application in Thyssen, points 46 to 54 and 89 to 92; the application in Unimétal, pp. 43 to 52 and 60 to 61; the application in Preussag, points 367 to 397, 482, 484 and 485; the application in British Steel, points 89 to 137 and the 3rd, 6th, 12th and 24th submissions; the application in Aristrain, the 7th submission and point 273; the application in Ensidesa, point 68; the observations of the applicants in ARBED, Cockerill-Sambre, Thyssen, Unimétal, Preussag, British Steel, Aristrain and Ensidesa in reply to the letter from the Court of First Instance of 21 July 1995; as regards the harmonization of extras, see in particular the application in ARBED, pp. 22 and 23; the application in Cockerill-Sambre, pp. 15 and 16; the application in British Steel, 11th submission);

(b) the internal investigation conducted on the matter by the Hearing Officer following the administrative hearing on 11, 12, 13 and 14 January 1993 (see point 312 of the Decision); it is claimed that the documents are relevant, in particular in the light of the pleas and arguments relating to breach of the rights of the defence during the administrative investigation (see the application in Thyssen, points 21 to 28; the application in Unimétal, pp. 13 to 15; the application in Preussag, points 501 to 506; the application in British Steel, fifth submission; the observations of the applicant in British Steel in reply to the letter from the Court of First Instance of 21 July 1995);

(c) relations between the Commission and the Scandinavian national authorities or beams producers, documents which are said to be capable of explainingwhy those producers were largely able to escape the heavy penalties imposed on the applicants even though the Decision acknowledges that they participated in at least one of the alleged infringements; in that connection some of the applicants referred to statements made to the Hearing Officer by Scandinavian undertakings to the effect that they had been encouraged by their government and by the Directorate-General for External Economic Relations (DG I) to take part in the meetings of the Eurofer/Scandinavia Group (see also paragraph 43 of the order of 19 June 1996); apart from the reasons already set out above regarding the knowledge the Commission is said to have had of the practices criticized in the Decision, the documents are also claimed to be relevant, in particular in the light of their pleas and arguments relating to breach of the general principle of equal treatment (see the application in Aristrain, ninth plea, points 369 to 371; the observations of the applicants in ARBED, Cockerill-Sambre, Thyssen, Unimétal and Preussag in reply to the letter of the Court of First Instance of 21 July 1995);

(d) the Commission's analysis of the economic effects of the infringements; these documents are claimed to be relevant in particular in the light of the pleas and arguments relating to infringement of Article 65 of the Treaty owing to the absence of a proper analysis of those effects (see the application in Preussag, point 619; the application in British Steel, 2nd, 7th and 17th submissions; the application in Aristrain, eighth plea; the observations of the applicants in British Steel and Aristrain in response to the letter from the Court of First Instance of 21 July 1995);

(e) the circumstances surrounding the adoption of the Decision and the determination of the general level of fine imposed on the applicants; these documents are claimed to be relevant in particular in the light of the pleas and arguments relating to abuse of procedure or misuse of powers (see the application in Thyssen, point 145; the application in Unimétal, pp. 53 and 54; the application in British Steel, 27th submission; the application in Aristrain, points 49 to 51 and the fifth plea, points 155 to 172; the observations of the applicant in Aristrain in reply to the letter from the Court of First Instance of 21 July 1995);

(f) the way in which the fines imposed on the various undertakings were calculated; it is claimed that these documents are relevant in particular in the light of the pleas and arguments relating to infringement of Article 65(5) of the Treaty, the duty to state reasons and the principles of equal treatment and proportionality (see the application in NMH, pp. 45 to 47; the application in Thyssen, point 140; the application in Unimétal, pp. 56 and 58 to 60; the application in Preussag, points 614 to 619; the application in British Steel, 16th to 27th submissions; the application in Aristrain, 7th, 8th, 9th and 10th pleas; the application in Ensidesa, pp. 53 to 59; the observations of the applicants in Thyssen, Unimétal, Krupp Hoesch, Preussag,British Steel, Ensidesa and Aristrain in reply to the letter from the Court of First Instance of 21 July 1995);

(g) the phase of the final adoption by the defendant of the Decision in its various language versions and the possible infringement on that occasion of essential procedural requirements, of which the applicants claim to have found evidence on reading the list of documents in the defendant's internal file (see the observations of the applicants in ARBED, Cockerill-Sambre, Thyssen, Unimétal, Krupp Hoesch, Preussag and British Steel in reply to the letter from the Court of First Instance of 21 July 1995).

14.

In its observations in reply to paragraph 3 of the operative part of the order of 19 June 1996 the defendant further explains the initial statement of its position (see paragraphs 47 and 48 of that order), maintaining that nearly all the documents classified as 'internal (hereinafter 'internal documents) among the documents contained in the file transmitted to the Court of First Instance are of such a nature that disclosure would compromise the efficient running of the Commission and its services and must therefore be denied.

15.

As regards its reasons for considering that the documents cannot be communicated to the applicants, the defendant first points out that Article 23 of the Statute of the Court of Justice concerns the Commission's obligations towards the Court and not the separate question of which documents should be made accessible to the parties. It sees no reason to depart from the relevant case-law relating to the EC Treaty, arguing that its principles apply equally with regard to the ECSC Treaty. On those principles, the Commission's internal documents are not accessible to applicants in cases before the Court unless the Court orders them to be produced by way of a special measure of inquiry, on the basis of relevant information which it is for the applicants to provide, without the Commission being obliged to prove the confidential nature of each document.

16.

Three types of consideration are given special emphasis by the defendant in support of its statement of principle.

17.

First, it refers to the interests of good administration and the efficient functioning of the services of the Community institutions.

18.

In the first place, the collegiate nature of the work and the deliberations of the Commission is laid down by the Treaties. Confidentiality is an essential condition of collective responsibility.

19.

In the second place, the defendant emphasizes the need for efficient administration. It must be possible to base all administrative decisions on internal preparatory documents drawn up free of restraint by officials and on open discussion between members of the Commission and their departments, between departments, andwithin departments. If officials are to be able to provide the institution which they have a duty to serve with useful advice (see Articles 11 and 21(1) of the Staff Regulations of Officials of the European Communities) they must have full freedom of expression within that institution, a freedom which is only possible, the defendant maintains, if the documents in which they express their opinions are not divulged in the future to third parties. It also asks that full protection be given to internal documents relating to the Legal Service, by reason of what it describes as 'legal professional privilege (see Case 155/79 AM & S Europe v Commission [1982] ECR 1575, paragraph 18 et seq.) and to the Hearing Officer, having regard to the independence of his role.

20.

Second, the defendant refers to the requirements of effective action against unlawful agreements.

21.

In the first place, the confidentiality of internal documents serves to guarantee openness and trust in contacts between the Commission and the national competition authorities.

22.

Next, it ensures protection for the Commission's sources of information (see Case 145/83 Adams v Commission [1985] ECR 3539 and Case T-65/89 BPB Industries and British Gypsum v Commission [1993] ECR II-389, paragraph 30 et seq.).

23.

Confidentiality also has a deterrent effect. The defendant argues that undertakings should not be aware of the basis on which the investigation was opened or how it is conducted and should not be able to reconstruct its progress, nor are they entitled to know the methods used to determine the fines, since otherwise they would be able to conduct a 'cost/benefit analysis (see the Opinion of Judge Vesterdorf, acting as Advocate General, in Case T-1/89 Rhône-Poulenc v Commission - the 'Polypropylene judgment - [1991] ECR II-867, at p. 1027).

24.

Lastly, the defendant maintains that the Commission and the undertakings (their lawyers, senior staff and management) must be able to negotiate freely and confidentially an out-of-court settlement of actual or potential disputes ('without prejudice talks).

25.

Third, the defendant refers to the nature and purpose of judicial review of acts of the administration. It maintains that the review by the Community judicature applies solely to the final administrative act, and not to draft or preparatory documents relating thereto. Accordingly, anything which serves to pave the way for a decision is to be regarded in principle as irrelevant to judicial review (see Joined Cases T-10/92, T-11/92, T-12/92 and T-15/92 Cimenteries CBR and Others v Commission [1992] ECR II-2667, paragraph 47). In particular the opinion of a mere official cannot be confused with an act of the administration. From the point of view of access to the file the only question, therefore, is whether the final decision could have been different had the undertaking been able to acquaint itself with documents to which it did not have access.

26.

Finally, the defendant maintains that what constitutes 'the documents relating to the case before the Court for the purposes of Article 23 of the Statute of the Court of Justice depends on the terms of the order sought in the application, which, according to Article 22 of that Statute, defines the subject-matter of the case. The purpose of Article 23 is to ensure that the Court is provided with full information as to the issues raised by the parties, and not to permit an unlimited extension of the subject-matter of the case. The documents contained in the Commission's file must therefore be analysed to determine their relevance in resolving the issues before the Court before the parties are authorized to have access to them. As regards the burden of proof, it is for the parties to make out a plausible case that an internal document is relevant to the resolution of an issue before the Court.

27.

In this instance the Commission was therefore obliged to transmit to the Court only the documents concerning the issues actually raised by the applicants, that is to say, essentially, the documents relating to the existence of the facts found in the Decision to constitute infringements of Article 65 of the Treaty. The contents of the internal documents in question here do not concern those issues.

28.

In Annex A to its observations the defendant has supplied a list of the internal documents more specifically referred to in the observations. They are the documents in the file transmitted to the Court which bear the numbers 3784a to 3980, 4158 to 4189, 4190, 4200 to 4243, 4298 to 4306, 4315 to 4349, 4352 to 4374, 4381 to 4384, 4402, 4472a to 4509, 4512, 4524 to 4527, 4530 to 4539, 4544 to 4678, 4688 to 4790, 4816a to 4820, 4855 to 4859, 4868, 4870a to 4870c, 4894 to 4922j, 4931, 4937 and 4938, 5003, 5007, 5052, 5317, 5380, 5516, 5528, 5590, 5609, 5622, 5659, 5714, 5724, 5763 to 5766, 5778, 5817, 5915, 6029 to 6031, 7032, 7056, 7071, 7153 to 7162, 7172 to 7173, 7458 to 7460, 7468 and 7469, 7474 to 7487, 7998, 8007, 8207 to 8211, 8421 and 8422, 9329, 9646a to 9646d, 9648 to 9759, 9769 to 9827, 9830 to 10143, 10215 to 10355, 10357 to 10469, 10472 to 10485 and 10487 to 10563.

29.

In part B of the annex to its observations the defendant lists the documents which although not classified by it as 'internal should nevertheless, it maintains, be given protection similar to that given to its internal documents. The documents listed therein are those bearing the numbers 4307 to 4314, 4510, 4515, 4528 and 4529, 5044, 5684a to 5729 and 5751 to 5762 in the file transmitted to the Court.

Findings of the Court

30.

Article 23 of the Statute of the Court of Justice requires the defendant institution to transmit to the Court 'all the documents relating to the case before the Court, and not only those documents which it considers relevant in the light of the issues of fact and of law raised by the parties.

31.

In this case the defendant was therefore required to transmit to the Court of First Instance, as indeed it did, all the documents produced in the course of the administrative procedure leading to the adoption of the Decision.

32.

However, as the Commission has stressed, the extent of the right of access of the applicants to the documents thus transmitted to the Court of First Instance is a separate question, as was indicated in the order of 19 June 1996. The purpose of Article 23 of the Statute of the Court of Justice is to enable the Court to exercise its power of review of the legality of the contested decision, having regard to the rights of the defence, and not to guarantee all the parties unconditional and unrestricted access to the administrative file.

33.

Similarly, it is necessary to distinguish the documents relating to the case, which were transmitted to the Court of First Instance pursuant to Article 23 of the Statute of the Court of Justice, from the case-file, constituted in accordance with Article 5(1) of the Instructions to the Registrar of the Court of First Instance of 3 March 1994 (OJ 1994 L 78, p. 32) and to which the parties have access under the conditions laid down in Article 5(3) of those Instructions, which contains the documents to be taken into consideration in deciding the case. The documents transmitted to the Court of First Instance under Article 23 of the Statute of the Court of Justice which are not placed in the case-file constituted for the purposes of Article 5(1) of the Instructions to the Registrar remain wholly extraneous to the proceedings and are not taken into consideration by the Court of First Instance in deciding the case.

34.

In order to determine whether at this stage in the proceedings the documents transmitted to the Court of First Instance under Article 23 of the Statute of the Court of Justice and classified by the Commission as internal documents are to be placed in the case-file, it is necessary to distinguish three categories of documents:

- the documents concerning the administrative procedure and the preparation of the Decision between January 1991 and February 1994, including the documents exchanged in that context between the Commission and the national competition authorities;

- the documents concerning the contacts between DG III and the steel industry during the period of infringement used in the Decision to determine the amount of the fines, that is to say from July 1988 to the end of 1990;

- the documents relating to the contacts between the Commission and the Scandinavian national authorities.

1. Documents concerning the administrative procedure and the preparation of the Decision between January 1991 and February 1994

35.

As regards the documents concerning the administrative procedure and the preparation of the Decision it should be recalled, first, that in the context of the application of the competition rules of the EC Treaty the Court of Justice and the Court of First Instance have consistently held that such internal documents are not to be communicated to the applicants, unless the circumstances of the case are exceptional and the applicants make out a plausible case for the need to do so (order of the Court of Justice of 18 June 1986 in Joined Cases 142/84 and 156/84 BAT and Reynolds v Commission [1986] ECR 1899, paragraph 11, and Case T-35/92 Deere v Commission [1994] ECR II-957, paragraph 31).

36.

As the Commission has rightly argued, that restriction on access to internal documents is justified by the need to ensure the proper functioning of the institution concerned when dealing with infringements of the Treaty competition rules. Notwithstanding the differences between the ECSC Treaty and the EC Treaty, that consideration is as relevant with regard to the former as it is to the latter (order of the Court of Justice of 6 November 1954 in Case 2/54 Italy v High Authority, not published in the European Court Reports). It applies equally to documents exchanged between the Commission and the national authorities in the context of the administrative procedure in this case.

37.

Secondly, as the Court of First Instance has already remarked, Article 23 of the Statute of the Court of Justice is not intended to enable the applicants to peruse the files of the institution concerned as they see fit; its sole purpose is to assist the Court in the exercise of its power of review of the legality of the contested measure, by placing the whole of the administrative file at its disposal (see paragraph 32, above).

38.

Thirdly, it must be remembered that the Court exercises its power of review only with respect to the final administrative act, that is to say, in this case, the Decision, and not the draft or preparatory documents relating to it (Cimenteries CBR, cited above, paragraph 47).

39.

Lastly, the Court of First Instance may, instead of authorizing disclosure of the Commission's internal documents to the applicants, prescribe such measures of inquiry and/or of organization of procedure as it considers appropriate or necessary under Articles 64 and 65 of the Rules of Procedure.

40.

Weighing the various interests involved (see the order of 19 June 1996, paragraph 74), in the light of the considerations set out above, the Court considers that, in principle, the internal documents concerning the administrative procedure and the preparation of the Decision, transmitted to the Court in accordance with Article 23 of the Statute of the Court of Justice, should be placed in the case-file only exceptionally, if they appear prima facie to contain relevant elements of proof tending to corroborate evidence that has already been plausibly advanced by the applicants, or if they are necessary for the Court to verify on its own initiative,should it need to do so, that the Commission is not in breach of its obligations under the Treaty.

41.

The Court considers, moreover, that it is not necessary to refer to a different composition of the Court the questions connected with the application of the principles set out above in this case, as was suggested by the applicant in Aristrain in the observations lodged by it on 26 June 1995. It is for the Chamber to which the case has been assigned to rule on procedural issues raised by the parties (Article 114 of the Rules of Procedure), and in particular on questions connected with the communication between parties of secret or confidential documents (Article 116(2) of the Rules of Procedure, relating to intervention, by analogy). In any event the Court of First Instance does not in any way prejudge the merits of the case if it examines documents transmitted to it in accordance with Article 23 of the Statute of the Court of Justice and excludes them from the case-file on the ground that they are confidential, without ruling on the merits of the pleas and arguments of the parties.

42.

Similarly, it is not necessary to grant the requests made by some of the applicants (see the observations lodged in Thyssen and Krupp Hoesch on 15 September 1995 and those lodged in Preussag on 31 May 1995), primarily on the basis of the first paragraph of Article 5(3) of the Instructions to the Registrar referred to above, to the effect that their lawyers, at least, should be authorized to consult the whole of the file transmitted to the Court.

43.

Such consultation would, likewise, prejudice the confidentiality of the internal documents in question. As regards Article 5(3) of the Instructions to the Registrar, that provision does not apply to documents that are excluded from the case-file by virtue of the defendant institution's right to request the Court for confidential treatment of certain information concerning it to be found in documents in the file transmitted to the Court in accordance with Article 23 of the Statute of the Court of Justice.

44.

In this case the Court has examined the defendant's internal documents and the documents which, although not classified by it as 'internal, are nevertheless entitled, it maintains, to the same protection as its internal documents (see paragraph 29, above) in the light of the principles and considerations set out above, having particular regard, on the one hand, to the grounds for annulment and allegations of fact set out in the applications and the supplementary observations of the applicants, and, on the other hand, to the circumstances specifically relied on by the Commission in order to resist communication of its internal documents to the applicants.

45.

Having weighed the various interests involved, the Court considers at this stage of the proceedings that none of the internal documents relating to the administrative procedure and the preparation of the Decision satisfies the criterion laid down in paragraph 40 of this order.

2. Documents concerning the contacts between DG III and the steel industry during the infringement period used in the Decision to determine the amount of the fines

46.

Unlike the internal documents concerning the administrative procedure and the preparation of the Decision, some of the documents transmitted to the Court in accordance with Article 23 of the Statute of the Court of Justice, namely the documents in the administrative file bearing numbers 9729, 9737 and its annexes, 9738 to 9759, 9760, 9763, 9764, 9765, 9769 and 9770, concern meetings held between officials of DG III and representatives of the steel industry during the infringement period used in the Decision to determine the amount of the fines (from July 1988 to the end of 1990), that is to say, before the administrative procedure was initiated. Those documents directly concern some of the allegations of fact relied on by the applicants, namely that DG III was aware of the infringements and/or tolerated them (see paragraph 13(a), above), on the one hand, and that the Commission did not conduct the internal investigation referred to in point 312 of the Decision with all due diligence (see paragraph 13(b), above) on the other.

47.

In those specific circumstances it must be held that those documents concern not only the administrative procedure and the preparation of the Decision, but relate directly to a factual aspect of the case, namely the alleged conduct of the Commission itself with regard to the infringements during a period prior to the administrative procedure and on which the defendant had, moreover, expressed its views in point 312 of the Decision. Furthermore, the Commission has already produced documents Nos 9738 to 9740, together with another internal note on the same subject, in the annex to its defence in 8 of the 11 cases.

48.

Those documents appear prima facie to be relevant to the issues of fact on which the Court is called upon to rule and they should therefore be placed in the case-file.

3. Documents concerning the Commission's contacts with the Scandinavian national authorities

49.

The applicants have alleged that DG I of the Commission encouraged and/or tolerated the Eurofer/Scandinavia agreements referred to inter alia in points 284 to 296 of the Decision (see paragraph 13(c), above). The documents concerning the Commission's contacts with certain Scandinavian national authorities, which are contained in the individual files numbered 14, 16, 18 and 23 of the file transmitted to the Court, are not relevant, however, to those allegations.

50.

In the case of file number 14, in particular, although it contains commercial documents seized by the Norwegian authorities which are not strictly speaking internal documents, it must be noted that the Norwegian authorities did not authorize the Commission to use them for the purposes of the Statement of Objections and the Decision and that the Commission respected that refusal. That being so, and having regard to the additional considerations mentioned by the Commission (see paragraph 21, above), those documents should not be placed in the case-file.

51.

However, the Court notes that the documents numbered 9730 and 9733 to 9787 relate directly to certain contacts between DG I and the Scandinavian authorities which took place before the administrative procedure was initiated. The documents were communicated by DG I to the Directorate-General for Competition (DG IV) in the course of the internal investigation conducted by the Commission following the hearing of the parties. They therefore concern not only the administrative procedure and the preparation of the Decision, but relate directly to a factual aspect of the case, namely the alleged conduct of the Commission with regard to the Eurofer/Scandinavia agreements prior to the administrative procedure.

52.

Although the Commission states on page 23 of its observations of 12 September 1996 that those documents are not exculpatory documents, the Court considers that they are prima facie relevant to the issues of fact on which it is called upon to rule. They should therefore be placed in the case-file.

The measures of inquiry or of organization of procedure requested by the applicants

Summary of the applicants' requests

53.

Several of the applicants have claimed that the defendant has not transmitted to the Court all the documents relevant to these cases, in breach of its obligation under Article 23 of the Statute of the Court of Justice, and some of them have specifically requested production of documents which are not in the file transmitted to the Court, in particular reports and internal memoranda prepared by officials of DG III on their contacts with beams producers and on Commission policy in this sector during the period covered by the Decision, together with the minutes of the Commission's meeting of 16 February 1994 and the documents relating to authentication of the Decision in the various authentic language versions (order of 19 June 1996, paragraphs 64 to 66; see also the observations of the applicants in Unimétal, Krupp Hoesch, Preussag and Thyssen in reply to the letter from the Court of First Instance of 21 July 1995). The Court reserved its decision on those requests (paragraph 4 of the operative part of the order of 19 June 1996).

54.

In the forms of order sought in their applications a number of applicants also asked that the Court adopt particular measures of inquiry.

55.

The applicant in Unimétal asks the Court 'to order the commissioning of an expert's report under Articles 65 to 67 of its Rules of Procedure to determine exactly what role DG III played during the period the Commission chose as the basis for calculating the fine, namely the period between 1 July 1988 and 31 December 1990, and, if necessary, to hear any witnesses involved in the facts alleged.

56.

The applicant in Aristrain asks that the Commission be requested to produce to the Court pursuant to Article 44(1) and Article 65 of the Rules of Procedure:

- all the internal documents used to calculate the fine imposed on it in so far as they have not already been transmitted in accordance with Article 23 of the Statute of the Court of Justice;

- all the documents concerning the contacts set up with a view to the acquisition of Aristrain by British Steel, whether those documents are held by the Merger Task Force or by DG III or DG IV;

- all the documents in its possession analysing the impact of Article F(2) of the Treaty on European Union on the Commission's internal procedures;

- the file of the Hearing Officer in this case, in so far as it has not already done so in accordance with Article 23 of the Statute of the Court of Justice;

- the documents relating to the investigation of the flat products ('coils) cartel capable of supporting the allegation of misuse of powers;

- the documents concerning the harmonization of extras, in so far as it has not already done so pursuant to Article 23 of the Statute of the Court of Justice;

- all the documents concerning the restructuring process for angles, shapes and sections;

- the internal document concerning the reformatio in peius;

- all the internal documents concerning the economic structure of the Community beams market, including studies made by the Merger Task Force.

57.

Aristrain also requests that the Court order the appearance as witnesses of the Commission officials directly or indirectly involved in the case which led to the contested decision. Similarly, it requests that the officials of the DG IV Merger Task Force be heard with regard to the prior notification allegedly made by British Steel to the Commission regarding the acquisition of Aristrain.

58.

Finally, should the Court be asked to appoint an expert at a subsequent stage in the proceedings, Aristrain requests that that expert be instructed to make an economic study of the market, of the possible existence of the agreements alleged by the Commission to have been made, of the effects on competition of the alleged concertation and of Aristrain's participation in such practices.

59.

The applicant in Ensidesa requests the Court 'to order the Commission to produce information concerning:

- the turnover figures which it used to determine the amount of the fine imposed on it and, in particular, concerning the question whether that figure was reached by converting into ecus, at the average exchange rate for 1990, the sectoral turnover figures which it had supplied;

- the method used by the Commission to determine the coefficient for the fine imposed on it, and in particular the influence of each infringement and the duration of the infringements on the coefficient.

60.

The applicant in Preussag requests that the following persons be heard as witnesses in support of its argument:

- Jürgen Kolb, as regards the facts which occurred in the CDE;

- Jörg Kröll and Hans Mette, as regards the facts which occurred in the Poutrelles Committee;

- Hans Mette, as regards the facts which occurred at the Eurofer/Scandinavia meetings and as regards discussions with foreign producers;

- Mr Kutscher, Mr Ortún, Mr Drees, Mr Evans and Mr Vanderseypen, as regards the fact that the Commission was aware of the information exchange and the conduct of the undertakings on the market, and with regard to cooperation between the Commission, the associations and the undertakings, in particular at meetings between the Commission and the steel industry.

61.

The Commission having argued in its statement in defence that that request for the taking of evidence was inadmissible because it did not describe in sufficient detail the facts alleged to have been known by the various witnesses, contrary to Article 68(1) of the Rules of Procedure of the Court of First Instance, according to which witnesses may be heard with regard to 'certain facts, in its reply Preussag made specific offers of proof regarding some of its statements, providing for the hearing of certain witnesses, in particular Mr Kröll and Mr Mette, both of whom work for the applicant.

Findings of the Court

62.

As regards the allegation that the defendant did not comply with its obligations under Article 23 of the Statute of the Court of Justice (see paragraph 53, above), it should be noted that the case before the Court concerns a Commission decision relating to a proceeding pursuant to Article 65 of the Treaty concerning agreements and concerted practices engaged in by European producers of beams.

63.

The Court considers that only the documents involved in that proceeding are documents 'relating to the case before the Court within the meaning of Article 23 of the Statute of the Court of Justice. As regards documents which, although relating more directly to other aspects of the Commission's conduct, appear equally necessary for the Court's review pursuant to Articles 33 and 36 of the Treaty, the Court may order their production by way of the measures of inquiry or organization of procedure referred to in Articles 64 and 65 of the Rules of Procedure.

64.

Consequently, is not correct to say, as some of the applicants have argued, that in order to comply with its obligations under Article 23 of the Statute of the Court of Justice the defendant should have transmitted to the Court of First Instance spontaneously the whole of DG III's administrative file on its contacts with beams producers during the period to which the Decision relates.

65.

Nevertheless, the question of DG III's involvement in setting up and operating certain mechanisms identified in the Decision as agreements or concerted practices restricting competition, or at least the question whether DG III (or even other Directorates-General) had or should have known of them, as the applicants maintain, appears to have been an important consideration in these cases, as the defendant acknowledged in point 312 of the Decision.

66.

The parties have also devoted lengthy argument to that matter in their written observations in most of these cases. They have discussed in particular the relevance of the evidence adduced by the applicants regarding the contacts which the Commission is alleged to have had with beams producers after 30 June 1988 in the context of consultative meetings, restricted meetings and 'steel lunches (see, for example, the detailed analysis of the speaking notes in the Commission's statements in defence).

67.

Accordingly, the Court considers it necessary to obtain further information on this question, without its being necessary to rule at this stage on the merits of the various pleas and arguments involved.

68.

In the course of the hearing conducted on 11, 12, 13 and 14 January 1993 the applicants referred to contacts between beams producers and DG III during the period covered by the Statement of Objections and to the existence in DG III's archives of evidence unknown to DG IV showing that the Commission was at least aware of the information exchanges and the alleged practices designed to stabilize prices and production. The Hearing Officer acknowledged the importance of thatpoint for the defence of the undertakings accused of infringement, and invited them to submit to him any evidence in support of their argument, stating at the same time that he would conduct an internal investigation.

69.

According to the defendant, which denies any such involvement or knowledge, none of the documents supplied by the applicants on the invitation of the Hearing Officer or in the course of the proceedings before the Court supported their allegations. Moreover, the defendant considers that it conducted a thorough investigation which did not produce any evidence in support of them. In particular, in the annex to some of its statements in defence it attached a memorandum from Mr Ortún, Director of Directorate E, Internal Market and Industrial Affairs III, in DG III, to Mr Schaub, Deputy Director-General of DG III, dated 19 February 1993, which rebuts those allegations.

70.

However, it is clear that the documents produced inter alia by the applicants in ARBED, Cockerill-Sambre, Unimétal, Preussag and British Steel raise some doubt as to the precise nature and extent of the information received by DG III in the course of its contacts with representatives of the steel industry, in particular in connection with Commission Decision 2448/88/ECSC of 19 July 1988 introducing a surveillance system for certain products of undertakings in the steel industry (OJ 1988 L 212, p. 1).

71.

The minutes of the restricted meeting of 21 March 1989 drawn up by Eurofer, for instance, contain the following remarks under the heading 'Results of the surveillance system:

'Mr von Hülsen gave information on the introduction of a statistical information system concerning monthly bookings and deliveries inside Eurofer. The result of the first inquiry for the months of January and February was given, showing an overall good situation [...] (see the application in British Steel, Appendix 3, document 24).

72.

Similarly, the minutes of the consultative meeting of 28 April 1989 in which forward programmes for the third quarter of 1989 were discussed, contain the following passage:

'Finally, it was mentioned that in the near future, enlarged statistics on the basis of a rapid declaration of monthly bookings and deliveries established by Eurofer will help to make forecasts for Category IV more realistic (see the application in British Steel, Appendix 3, document 31).

73.

Again, the minutes of the restricted meeting of 15 June 1989 state:

'Regarding the forward programmes for Quarter III/1989, Mr Traverso announced a possible review of the programmes after a final decision at the next CDE infunction of the figures obtained from the system of rapid declaration of bookings and deliveries (see the application in British Steel, Appendix 3, document 25).

74.

At this stage of its examination of the cases, the Court is not in a position to determine whether the information exchanges referred to in those minutes are the same as those criticized in the Decision, or the extent to which they were effectively brought to the knowledge of some DG III officials, as their terms would seem to suggest.

75.

However, it should be observed that in points 143 to 146 of the Decision the Commission described a system of monthly information exchanges regarding orders and deliveries for certain undertakings, conducted by Eurofer under the name of 'fast bookings, which at first sight may appear to be the system referred to in the minutes in question. The documents on which that description is based, and which are listed in Annex 2 to the Decision, comprise mainly tables of orders and/or deliveries, monthly or quarterly depending on the case, for the participating undertakings on the various national markets (see, for example, document number 3462 in the Commission's file). The conclusion reached after the legal assessment made in points 279 to 283 of the Decision is that that information exchange scheme is 'contrary to Article 65(1) of the ECSC Treaty.

76.

The Court also notes that some of the minutes of consultative meetings between the Commission and the steel industry, in particular those held on 27 October 1988 and on 26 January, 27 April and 27 July 1989, refer to certain information regarding price trends which appears prima facie to be related to the contents of the corresponding minutes of meetings of the Poutrelles Committee held on 18 October 1988 and on 10 January, 19 April and 11 July 1989.

77.

In those circumstances the Court considers that it does not have sufficient information either from Mr Ortún's memorandum of 19 February 1993 referred to above (which merely states with regard to DG III's meetings with Eurofer's commercial experts that 'the globalized results of production and delivery achieved by the undertakings were given to participants), or from the other internal documents relating to the 'thorough investigation conducted on the instructions of the Hearing Officer contained in the file transmitted to it.

78.

Some of the internal documents produced by the defendant itself in the annexes to some of its statements in defence (see the confidential aide-mémoire of Unit 3, Raw and Processed Materials, of Directorate E of DG III dated 31 January 1989 on the consultative meeting held on 26 January 1989 in the course of which Mr Kutscher, chairing the meeting, warned that 'if the Commission should find that there was any agreement, made within the industry concerning prices and tonnages, which was contrary to the terms of Article 65 of the ECSC Treaty, then it would not fail to take the appropriate action in line with the provisions of the said article) indicate that the Commission (DG III) has retained its notes and aide-mémoires of those meetings and that they may help to clarify some of the issues of fact on which the Court is called upon to rule.

79.

The Court notes, moreover, that the file transmitted to it does not appear to contain 'all the documents relating to the case as provided for in Article 23 of the Statute of the Court of Justice. In particular, neither the note from DG IV to DG III of 22 July 1991, nor the reply from DG III to DG IV of 12 September 1991, which are joined to some of the statements in defence, appears on the list of internal documents drawn up by the defendant and transmitted to the applicants at the request of the Court. However, not only are those notes generally concerned with the 'exchange of statistical information relating to Eurofer but they also refer expressly to a method described as the 'Traverso method, which relates to an infringement specifically imputed to European beams producers by the contested Decision (see points 72 to 79 and 254 to 259). Such documents relate directly to the proceeding at issue and should therefore have been included in the file transmitted to the Court.

80.

In the light of those observations and in accordance with Article 24 of the Statute of the Court of Justice and Article 65 of the Rules of Procedure of the Court of First Instance, the Court finds it necessary to prescribe the measures of inquiry specified in the operative part of this order.

81.

The Court reserves its decision as to the other measures of inquiry requested by the applicants.

On those grounds,

THE COURT OF FIRST INSTANCE (Second Chamber, Extended Composition)

hereby orders:

1. Cases T-134/94, T-136/94, T-137/94, T-138/94, T-141/94, T-145/94, T-147/94, T-148/94, T-151/94, T-156/94 and T-157/94 are joined for the purposes of measures of inquiry and of organization of procedure and for the oral procedure.

2. Of the documents classified by the defendant as internal documents, only those bearing the numbers 9729, 9730, 9737 to 9746, 9748 to 9760, 9763 to 9765, 9769, 9770 and 9773 to 9787 in the file transmitted by it to the Court of First Instance by letter of 24 November 1994 are to be placed in the case-file and communicated to the parties.

3. The defendant shall transmit to the Court of First Instance within four weeks of notification of this order:

- the notes, aide-mémoires or minutes drawn up by officials of DG III relating to their meetings with representatives of the steel industry during the period of application of the surveillance system established by Commission Decision 2448/88/ECSC of 19 July 1988 introducing a surveillance system for certain products of undertakings in the steel industry, and in particular those of 1 September, 27 October, 3 November and 8 December 1988, 26 January, 1 February, 21 March, 28 April, 15 June, 27 July, 1 September, 26 October, 7 November and 15 December 1989, 25 January, 7 February, 3 May, 27 July, 4 September and 5 November 1990;

- the documents, other than those already in the possession of the Court of First Instance, received by officials of DG III from Eurofer or its product committees in the context of those meetings during the same period.

4. Costs are reserved.

Luxembourg, 10 December 1997.

H. Jung

A. Kalogeropoulos

Registrar

President

1: Languages of the cases: T-134/94 German, T-136/94 German, T-137/94 French, T-138/94 French, T-141/94 German, T-145/94 French, T-147/94 German, T-148/94 German, T-151/94 English, T-156/94 Spanish and T-157/94 Spanish.

ECR