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

11 March 1999 (1)

(ECSC Treaty — Competition — Agreements between undertakings, decisions byassociations of undertakings and concerted practices — Price-fixing — Marketsharing — Systems for the exchange of information)

In Case T-151/94,

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

applicant,

v

Commission of the European Communities, represented initially by Julian Curralland Norbert Lorenz, of its Legal Service, and Géraud Sajust de Bergues, a nationalcivil servant on secondment to the Commission, and subsequently by Jean-LouisDewost, Director-General of the Legal Service, Julian Currall and Guy Charrier,a national civil servant on secondment to the Commission, acting as Agents,assisted by James Flynn, Barrister, of the English and Welsh Bar, with an address

for service in Luxembourg at the office of Carlos Gómez de la Cruz, also of itsLegal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION, principally, for the annulment of Commission Decision94/215/ECSC of 16 February 1994 relating to a proceeding pursuant to Article 65of the ECSC Treaty concerning agreements and concerted practices engaged in byEuropean producers of beams (OJ 1994 L 116, p. 1),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Second Chamber, ExtendedComposition),

composed of: C.W. Bellamy, acting as President, A. Potocki and J. Pirrung, Judges,

Registrar: J. Palacio González, Administrator,

having regard to the written procedure and further to the hearing on 23, 24, 25, 26and 27 March 1998,

gives the following

Judgment

The facts giving rise to the action

A — Preliminary observations

1.

    The present action seeks the annulment of Commission Decision 94/215/ECSC of16 February 1994 relating to a proceeding pursuant to Article 65 of the ECSCTreaty concerning agreements and concerted practices engaged in by Europeanproducers of beams (OJ 1994 L 116, p. 1, hereinafter 'the Decision‘), by which theCommission found that seventeen European steel undertakings and one of theirtrade associations had participated in a series of agreements, decisions andconcerted practices designed to fix prices, share markets and exchange confidentialinformation on the market for beams in the Community, in breach of Article 65(1)of the ECSC Treaty, and imposed fines on fourteen undertakings operating withinthat sector for infringements committed between 1 July 1988 and 31 December1990.

2.

    The applicant, British Steel plc ('British Steel‘ or 'the applicant‘), is the largestcrude steel producer in the United Kingdom. In the business year ending on31 March 1990, it had a consolidated turnover of UK £5 113 million and its salesof beams in 1990 totalled UK £286.5 million. It was the largest Communityproducer of beams in 1989.

3.

    Ten other parties to which the Decision was addressed have also brought actionsbefore the Court. They are: NMH Stahlwerke GmbH ('NMH‘), in Case T-134/94;Eurofer ASBL ('Eurofer‘), in Case T-136/94; ARBED SA ('ARBED‘), in CaseT-137/94; Cockerill-Sambre SA ('Cockerill-Sambre‘), in Case T-138/94; ThyssenStahl AG ('Thyssen‘), in Case T-141/94; Unimétal — Société française des acierslongs SA ('Unimétal‘), in Case T-145/94; Krupp Hoesch Stahl AG ('KruppHoesch‘), in Case T-147/94; Preussag Stahl AG ('Preussag‘), in Case T-148/94;Siderúrgica Aristrain Madrid SL ('Aristrain‘), in Case T-156/94; and EmpresaNacional Siderúrgica SA ('Ensidesa‘), in Case T-157/94.

4.

    Since the eleven cases were joined for the purposes of measures of inquiry and theoral procedure by order of the Court of 10 December 1997, reference will be madein the present judgment to certain documents produced in the parallel cases. Likewise, since the applicants in these cases raised a number of arguments in jointsubmissions at the hearing, reference will be made to 'the applicants‘.

B — Relations between the steel industry and the Commission from 1970 to 1990

The crisis in the 1970s and the creation of Eurofer

5.

    From 1974 onwards, a fall in demand, giving rise to problems of excess supply andcapacity and low prices, severely affected the European steel industry.

6.

    On 1 January 1977, the Commission adopted, on the basis of Article 46 of theECSC Treaty, the 'Simonet Plan‘, under which each undertaking was to giveunilateral voluntary commitments to adjust its deliveries to the levels proposed inthe forward programmes published each quarter, pursuant to point 2 of the thirdparagraph of Article 46 of the ECSC Treaty. This system failed to stabilise themarket and was replaced in 1978 by the 'Davignon Plan‘, which supplemented, inparticular, the unilateral voluntary commitments with guide and minimum prices(the 'Eurofer I‘ agreement).

7.

    The unilateral voluntary commitments which the undertakings gave to theCommission were discussed beforehand by them within the Eurofer tradeassociation, which was established in 1977 with the encouragement of theCommission. In reality, the Commission relied very extensively on Eurofer tomanage the crisis in the steel industry, to the extent that a letter of 13 July 1978from Mr Davignon, a Member of the Commission, to the chairman of Eurofer

refers to 'joint management of the anti-crisis [measures] for which the Commissionand the producers have opted‘ (application, Appendix 3, Document 2).

The quota system established from 1980 to 1988

8.

    In view of the continued deterioration of the situation on the steel market, theCommission adopted Decision No 2794/80/ECSC of 31 October 1980 establishinga system of steel production quotas for undertakings in the iron and steel industry(OJ 1980 L 291, p. 1). In that decision, the Commission declared that there wasa manifest crisis within the meaning of Article 58 of the ECSC Treaty and imposedmandatory production quotas for most steel products, including beams.

9.

    That crisis regime may be described in the following terms. The Commission fixeda quarterly objective for Community production for different product categoriesand allocated to each undertaking a production quota and a quota for deliverieswithin the Community ('I‘ quotas). It was further agreed that each undertakingwould be allocated a delivery quota for each of the national markets ('i‘ quotas). Eurofer was given the task of dividing up the 'I‘ quota of each undertaking into'i‘ quotas within the framework of the Eurofer II to Eurofer V agreements. Where necessary, the Commission was to intervene in the event of disputesbetween undertakings (see the arbitration of 2 June 1982 by Mr Davignon in regardto the 'i‘ quotas of Italsider, Appendix 3, Document 11, to the application).

10.

    By a letter of 17 January 1983 (Appendix 3, Document 6, to the application),Messrs Davignon and Andriessen, Members of the Commission, issued a formalnotice to Eurofer, the terms of which provide as follows:

'The Commission appreciates the cooperation which undertakings and theirassociations have brought to the success of the anti-crisis measures, includingcooperation on pricing policy. It considers that this activity is an essential elementin its policy for steel and would like to see it continue.

However, it wishes to draw the attention of the associations, and in particularEurofer, to the fact that they must carry out their activities in strict compliance withthe framework and limits specified by Article 48 of the ECSC Treaty.

The Commission stresses that it cannot accept that steel undertakings or theirassociations should anticipate or circumvent the decisions which the Commissiontakes in drawing up pricing policy, or that the measures which it takes and therecommendations which it drafts as part of its anti-crisis policy should be used asa pretext for concluding agreements or adopting decisions contrary to the Treaty. Such agreements or decisions fall under Article 65, are entirely without legal effect,and would have to be prosecuted by the Commission.

...‘.

11.

    By letter of 8 February 1983, the chairman of Eurofer replied as follows to MessrsDavignon and Andriessen (application, Appendix 3, Document 7):

'... we would like to remind you that, in the field of quantities, the agreements onrestriction of production and deliveries have been reached at the urgent request ofthe European Commission and of the Council. The Commission has been keptinformed of how they operate in full detail and we have made up our minds tocarry on acting in that way.

In the field of prices, the Commission and the Council have constantly insisted onthe necessity of an increase designed to allow steel undertakings sufficient income...

The Commission has been kept meticulously informed of all the efforts made witha view to reaching the goal which it has set for itself, and we are resolved tocontinue down this road in the future.

In these circumstances, if our activities should at any stage risk going beyond theCommission's interpretation of the provisions of the Treaty of Paris, we rely on youto inform us of that fact immediately.‘

12.

    In view of the fact that the state of manifest crisis had established itself on a long-term basis, the quota measures adopted by the Commission were extended andsupplemented on numerous occasions, in particular by the adoption, between 1984and 1986, of a system of minimum prices for beams and other products(Commission Decision No 3715/83/ECSC of 23 December 1983 fixing minimumprices for certain steel products (OJ 1983 L 373, p. 1)). The Commission alsoadopted Decision No 3483/82/ECSC of 17 December 1982 concerning therequirement for Community undertakings to declare the quantities of certain steelproducts delivered (OJ 1982 L 370, p. 1, hereinafter 'Decision No 3483/82‘),establishing a 'monitoring system‘ under which each undertaking was required toinform the Commission of its deliveries for each country.

13.

    At the beginning of 1984, the Commission reinforced the quota system by adoptingDecision No 234/84/ECSC of 31 January 1984 on the extension of the system ofmonitoring and production quotas for certain products of undertakings in the steelindustry (OJ 1984 L 29, p. 1). The ninth recital in the preamble to that decisionrefers to a declaration of the Council of 22 December 1983 stating that 'thestability of traditional patterns of deliveries of steel products within the communityis an essential factor which must be preserved if the restructuring of the steelindustry is to be carried out within a competitive context compatible with thesolidarity imposed by the production quota system‘. Consequently, Article 15B ofthat decision provides that, where a Member State submits a complaint in thisconnection, the Commission shall, if its finds that such complaint is justified,request the undertakings which are alleged to have caused the confirmed

disruptions to give a commitment in writing that, during the following quarter, theywill correct the imbalance in their traditional deliveries. If an undertaking refusesto accede to this principle of solidarity, the Commission may reduce that part of itsquota which may be delivered in the common market.

14.

    The policy of stabilising traditional flows and the efforts to maintain prices at anacceptable level were the subject of extensive contact between the Commission andEurofer, as evidenced in particular by:

—    a Eurofer note of 2 July 1984 setting out the explanations provided at ameeting between representatives of the Commission and of the industryheld in Brussels on 27 June 1984 (Appendix 3, Document 8, to theapplication), which states as follows in regard to the implementation ofArticle 15B of Decision No 234/84:

    'The Commission established the Art. 15B system in answer to the concernof the national Governments. It cannot, by any means, replace the small ”i”system of a Eurofer IV Agreement. On the contrary, the Commission needsEurofer for market evaluations and for the settlement of all the details. Without Eurofer, the Commission would be in extreme difficulty. ...Generally speaking, the Commission is interested only in a broad analysisof the situation, without going into minor details. ... For the future, theCommission is prepared to consider a system based on quotas, but wouldthen need full support from Eurofer‘;

—    the minutes of a meeting between the Commission and Eurofer held on16 December 1985 in the presence of Commission Member Narjes(Appendix 3, Document 10, to the application), which state as follows withregard to traditional flows:

    'The Commission expressed its deep concern about recent marketdevelopments. It regretted that Eurofer V had not yet been concluded andunderlined the responsibility of the producers as regards prices. ... TheCommission urged the participants to re-examine ways of cooperationbetween them, because it considered that Eurofer played an essential rolein the implementation of Article 58. It intended to define the criteria forthe application of Article 15b as soon as possible, in order to cope with thesituation should Eurofer fail, or to facilitate a private arrangement‘;

—    the minutes of a meeting of 10 March 1986 between Mr Narjes and Eurofer(Appendix 3, Document 13, to the application), which state as follows withregard to the Spanish market:

    'Narjes recalled the Commission decision concerning the limitation ofdeliveries to Spain. ... As far as the burden sharing was concerned, he wasin favour of an internal agreement between Eurofer producers‘;

—    the minutes of a meeting held on 16 May 1986 between Mr Narjes andEurofer delegates (Appendix 3, Document 14, to the application), whichstate as follows:

    'The Commission stressed the need to rapidly harmonise the publishedprices in the Community to the same level and to avoid differences betweenpublished prices and market prices. The sector rebates should correspondto the reality. Confirmation was given of the readiness of the French steelindustry to raise the price but also of the necessity to be supported by thepenetrants in this respect. Eurofer expressed the hope that the Eurofer VAgreement would bring the appropriate basis for a general price recovery‘.

15.

    At the same period, the Commission concluded a series of international agreementswith the Kingdom of Sweden, the Kingdom of Norway and the Republic of Finlanddesigned to ensure stability of traditional flows between those countries and theCommunity (known as the 'arrangements‘ system): see the Commission's letters,lodged by the parties at the hearing, of 4 March 1986, 13 February 1987 and21 January 1988 to the Swedish authorities, of 4 March 1986, 11 March 1987 and10 February 1988 to the Norwegian authorities, and of 4 March 1986, 10 April 1987and 12 February 1988 to the Finnish authorities, exchanged respectively within theframework of the Agreement of 22 July 1972 between the Member States of theEuropean Coal and Steel Community and the European Coal and SteelCommunity, of the one part, and the Kingdom of Sweden, of the other part (OJ1973 L 350, p. 76), the Agreement of 14 May 1973 between the Member States ofthe European Coal and Steel Community and the European Coal and SteelCommunity, of the one part, and the Kingdom of Norway, of the other part (OJ1974 L 348, p. 17), and the Agreement of 5 October 1973 between the MemberStates of the European Coal and Steel Community and the European Coal andSteel Community, of the one part, and the Republic of Finland, of the other part(OJ 1974 L 348, p. 1).

16.

    A similar arrangement was applied to the Kingdom of Spain, for a three-yeartransitional period, by Protocol No 10 to the Act of Accession. The Commissionthus fixed, for each of the years 1986, 1987 and 1988, the level of deliveries to theCommunity markets, apart from Portugal, of steel products originating in Spain. The application of those specific transitional measures came to an end on31 December 1988.

Events preceding the end of the manifest crisis regime on 30 June 1988

17.

    From 1985 onwards, the Commission began to prepare for the end of the crisisregime and a return to normal market conditions. A document drawn up by theCommission's Directorate-General for the Internal Market and Industrial Affairs('DG III‘) during 1985 (Document III/534/85/FR, Appendix 3, Document 5, to the

application) states that 'the quota system was based largely on the voluntary systemwhich had been operated by Eurofer‘ and stresses how important it was that 'someagreement on the future should be reached [before] the mid-point of the comingyear because, if this is not done, there will be a battle for market position in thesecond half of the year which could well have disastrous effects on prices and oncompany revenue.‘ In conclusion, that document states that 'Eurofer musttherefore be encouraged to accept its responsibilities and formulate its propositionson how the steel industry should emerge from a period of protection to thecircumstances of a free market‘.

18.

    In its communication to the Council on the introduction of a system of productionquotas under Article 58 of the ECSC Treaty after 31 December 1985 (COM(85)509, Annex 14 to the application in Case T-145/94), the Commission describes indetail a transitional period prior to the resumption of normal competition. Takingthe view that the worst of the crisis was practically over, it concluded that:

'... restructuring in the Community steel industry is not complete. ... A period oftransition is thus necessary. Limited to a maximum of three years, it will allow theindustry to move progressively from the extremely rigid controls currently appliedto a fully competitive market in compliance with the objectives of the ECSC Treaty.... the quota system proposed from 1 January 1986 will ... be the last before areturn to a competitive market. ... the Commission does not intend to include in thenext Decision the provisions of Article 15B of Decision 234/84/ECSC in theirpresent form. ... On the other hand, it does intend to continue, during the firstphase of the transition period, with the statistical monitoring of flows of steelproducts between Member States on the basis of the production certificates andaccompanying documents. These documents will make it possible to check whetherthe traditional flows between the Member States are subject to seriousdisturbances. If the statistical monitoring shows that the flows are disturbed, theCommission would immediately examine whether the firms concerned havelaunched a drive to recruit new customers, contrary to the rules of the Treaty, inparticular the rules on prices.‘

19.

    In its Decision No 3485/85/ECSC of 27 November 1985 on the extension of thesystem of monitoring and production quotas for certain products of undertakingsin the steel industry (OJ 1985 L 340, p. 5), the Commission indicated that, owingto an improvement in market conditions:

'... the quota system can be dismantled completely over a two-year, or at mostthree-year, transition period. At its meeting on 25 July 1985 the Council said thatan orderly return to a market allowing free competition between Communitysteelmakers was needed as soon as possible.‘

20.

    The minutes of the meeting of 16 May 1986 between the Commission and Eurofer(Appendix 3, Document 14, to the application), drafted by Eurofer, state, under theheading 'Implementation of Article 58 in 1987‘: 'As regards the future after 1987,

the Commission representatives stated that they for their part did not yet have anopinion on the matter‘. Those minutes also reveal that, in a meeting after theCommission representatives had left, the Eurofer delegates reviewed variouspossibilities from their perspective:

'An initial discussion showed that a choice was to be made between threepossibilities:

—    full liberty and, in such a case, how to cooperate in the best way;

—    continuation of Article 58 and, in such a case, how to proceed with theCommission;

—    no Article 58, but a private arrangement.

    In such a case, what kind of arrangement (production, deliveries) and whatcoverage (crude steel, some products, etc.)

Each member agreed that anyhow the objective was to set up a price level whichcorresponded to profitability for a large number of companies.

Different kinds of opinions were expressed, one, based on the existence of over-capacities for some years to come, considered that quantity arrangements wereunavoidable, another based on the experience of the past, doubted the ability ofall companies to accept adaptations necessary for the conclusion of a privatearrangement after a long period of artificial measures‘.

21.

    In its Decision No 3746/86/ECSC of 5 December 1986 amending DecisionNo 3485/85 (OJ 1986 L 348, p. 1), the Commission explained: 'The inclusion ofArticle 15B became necessary at the height of the crisis in the steel industry. At thepresent time there is no justification for maintaining this provision. It shouldtherefore be deleted‘.

22.

    In its communication to the Council on steel policy, submitted on 18 September1987 (COM(87) 388 final/2) (OJ 1987 C 272, p. 3), the Commission stated inter aliaas follows:

'... the Commission is not prepared to prolong the quota system — which everyonerecognises must be updated — unless it is accompanied by closure incentives andfirm commitments from the firms and governments concerned.

...

Although crisis conditions persist for flat products and heavy sections, theCommission, aware that the quota system itself can be an impediment to therestructuring of the industry, will implement such a system only if it receives firm

commitments from companies for a satisfactory level of closures carried out overa period not to exceed three years.

...

In particular:

...

—    it will terminate the system in the course of 1988 if by 1 August 1988 thefirms have not made an additional effort. ...‘

23.

    On 8 October 1987 the Commission commissioned a group of three 'Wise Men‘(Messrs Colombo, Friderichs and Mayoux) to ascertain whether, in three categoriesof products (including beams), undertakings were prepared to enter intocommitments for a sufficient and rapid reduction of the production capacity judgedto be excessive.

24.

    The report of the 'Three Wise Men‘ (OJ C 9 of 14 January 1988, p. 6) stated that:

'It is obvious that, having been protected by a quota system for seven years, andhaving become accustomed to the system being extended, the companies are notprepared to give adequate undertakings regarding closures in order to justifyextending the system. ...

However, in view of the international economic situation, it may be foreseen thatthe current situation of comparatively high prices will not last long, and it is certainthat over-capacity will again weigh heavily on the market, forcing the steelmakersto restructure and close plants down.

The Commission must therefore act firmly, but with a sense of its responsibilities.

The current quota system cannot be maintained unless firm undertakings are givenby the companies on capacity reductions. On the other hand, if market forces aresuddenly allowed to operate freely, the fall in prices which would undoubtedlyfollow could affect all companies, and hence make the proposed restructuring moredifficult.‘

25.

    The Report concludes:

'As a final point, we must again emphasise the extreme gravity of the steel crisis,which is much worse than most in the industry admit.

This crisis demands a resolute and unequivocal stance from the Communityauthorities to make the industry face up to its responsibilities.

It is a matter of urgency that steel companies should be restructured to meet worldcompetition and become fully competitive in a market which will be increasinglyopen.‘

26.

    It was also during 1987 that the Commission abandoned its views regarding themaintenance of 'traditional flows‘. In Annex I to its abovementionedcommunication to the Council of 18 September 1987, it thus expressed its view that'the preservation of the traditional flows of trade in steel products betweenMember States is inconsistent with the Community objective of achieving an openinternal market by 1992‘.

27.

    The Community's new steel policy was set out in the Commission's communicationon steel policy, submitted to the Council on 16 June 1988 (COM(88) 343 final)(OJ 1988 C 194, p. 23). Outlining the measures to be adopted, the Commissionstated:

'The Treaty of Paris is based on the principle of free market competition as thenormal situation, and Article 5 empowers the Commission to exert direct influenceupon production only when circumstances so require. ... The Treaty stipulates thatcompetition is to take place under normal conditions.

Furthermore, it must be borne in mind that completion of the internal market in1992 is also a crucial objective for the steel market. Preparing for the 1992deadline requires a radical change of strategy on the part of entrepreneurs, whosethinking is still all too often dominated by national market considerations‘.

28.

    The Commission concluded:

'The steel market has improved to such an extent that the quota system is nolonger justified. Furthermore, the system has proved inadequate for inciting firmsto complete the restructuring process ... the Commission believes that structuraladjustment must continue under the influence of normal market forces‘.

29.

    During its 1255th meeting on 24 June 1988, the Council noted that the Commissionintended to bring the quota system to an end, in respect of all steel products, on30 June 1988. Referring to the accompanying measures and market-monitoringmeasures envisaged by the Commission (monthly production and delivery statistics,forward programmes, consultation of interested parties), the Council stressed that'no-one must use the monitoring system in order to circumvent Article 65 of theECSC Treaty‘ (see the extract from the draft minutes of the 1255th meeting of theCouncil, Annex 3 to the statement of defence).

30.

    On 4 May 1988, the Commission also published a press release (IP/88/261) (seeAppendix 5, Document 4, to the application) concerning the inspection which it had

just completed as part of the Stainless Steel case (see paragraph 36 below). Thatpress release states in particular that:

'This is the first cartel inspection in the steel sector which the Commission hasconducted in thirteen years. At a time when the Commission's official quota systemhas already been terminated for some steel products and when proposals have beenmade to end the quota system by 30 June 1988, it is clear that the Commissioncannot tolerate any substitution of the Community system by unofficial and illegalarrangements by the industry itself‘.

31.

    The crisis regime officially came to an end, so far as beams were concerned, on30 June 1988. The Eurofer V Agreement also came to an end on that date. However, the monitoring system for deliveries between Member States introducedby Decision No 3483/82 was retained until November 1988.

The monitoring system implemented with effect from 1 July 1988

32.

    Although the manifest crisis regime came to an end on 30 June 1988, it is apparentfrom an internal memorandum of DG III dated 24 October 1988, produced by thedefendant in compliance with the order of the Court of 10 December 1997, that theCouncil and Commission had agreed on the need to facilitate undertakings inadapting to changes in demand. To that end, it had been agreed that theCommission would continue to monitor the market by means of three measures:

—    the collection of monthly statistics on production and deliveries of certainproducts;

—    monitoring of developments on the market for those products within theframework of quarterly forward programmes;

—    regular consultation with undertakings on the situation and trends in themarket.

33.

    The Commission implemented that policy in particular by its DecisionNo 2448/88/ECSC of 19 July 1988 introducing a surveillance system for certainproducts of undertakings in the steel industry (OJ 1988 L 212, p. 1), under whicheach undertaking was required to inform the Commission of its deliveries. Thatsystem expired on 30 June 1990 and was replaced by an individual and voluntaryinformation scheme.

34.

    Undertakings thus continued to maintain regular and close contacts with DG III,in the course of which market parameters (such as production, deliveries, stocks,prices, estimates, imports and exports) were discussed. Those contacts took placein the following contexts:

(a)    official quarterly meetings between representatives of producers, customersand traders, and those of the Commission, at which, in accordance withArticle 46 of the ECSC Treaty, the forward programmes were discussed. Those meetings took place, in particular, on 4 May 1988, 1 September 1988,3 November 1988, 1 February 1989, 28 April 1989, 1 September 1989,7 November 1989, 7 February 1990, 3 May 1990, 4 September 1990 and5 November 1990;

(b)    consultation meetings, limited to a small number of representatives of theindustry, whether or not belonging to Eurofer, and of the Commission,which took place, in particular, on 27 October 1988, 26 January 1989,28 April 1989, 27 July 1989, 26 October 1989, 25 January 1990 and 27 July1990;

(c)    restricted meetings, limited to a very small number of representatives of theindustry, whether or not belonging to Eurofer, and of the Commission, heldon 8 December 1988, 21 March 1989, 15 June 1989 and 13 December 1989;

(d)    'steel lunches‘, which brought together representatives of Eurofer and ofthe Commission in an informal setting during consultation meetings andrestricted meetings.

35.

    The main purpose served by these meetings was to provide the Commission withinformation from the industry which was necessary for the application of Article 46of the Treaty and the surveillance system established by Decision No 2448/88. They brought together officials from DG III (in particular, Messrs Ortún, Kutscher,Evans, Drees, Aarts and Vanderseypen), the chairman of the CDE, the chairmenof Eurofer's products committees, a number of representatives of other steelassociations and members of Eurofer's staff. The industry representatives providedthe Commission with general information concerning the economic situation ofeach product. The general and product-specific information exchanged on thoseoccasions related to actual consumption, apparent consumption, prices, orders,deliveries, imports, exports and the state of stocks. A summary of the consultationmeetings, better known as 'speaking notes‘, was, as a rule, submitted by Euroferto DG III a few days after the meeting in question.

The 'Stainless Steel‘ decision of 18 July 1990

36.

    On 18 July 1990 the Commission adopted Decision 90/417/ECSC relating to aproceeding under Article 65 of the ECSC Treaty concerning an agreement andconcerted practices engaged in by European producers of cold-rolled stainless steelflat products (OJ 1990 L 220, p. 28) ('the Stainless Steel decision‘), by which itimposed fines ranging from ECU 25 000 to ECU 100 000 on a number of steelundertakings, including the applicant, Thyssen Edelstahlwerke AG, a sister

company of Thyssen, and Ugine Aciers de Châtillon et Gueugnon, a subsidiary ofUnimétal, for having infringed Article 65(1) of the Treaty by concluding a quotaand price agreement on 15 April 1986.

The Commission's reflections on the future of the ECSC Treaty after 1990

37.

    The Commission began a process of reflection on the future of the ECSC Treatyduring 1990, as is shown by a draft note of 23 October 1990 from Mr Bangemann,the Commission Member responsible for industrial policy, to the Members of theCommission on this matter (Annex 10 to the application in Case T-156/94). In thatdocument, the Commission favoured the option that the ECSC Treaty shouldexpire as scheduled in 2002, 'while making use of all the flexibility which it offersin order to adapt, so far as possible, its application to the position of the twosectors and progressively organising their phasing-in by the EEC Treaty in 2002‘(see also the communication from the Commission to the Council and theEuropean Parliament of 15 March 1991 on the future of the ECSC Treaty(SEC(91) 407 final) (Appendix 3, Document 1, to the application).

38.

    In its notice of September 1991 on ECSC competition policy (IV/832/91) (Annex 5to the reply), the Commission proposed to 'ensure that ECSC and EECcompetition practices are brought into line as far as possible in the future.‘ Likewise, in its Twentieth Report on Competition Policy, published in 1991, theCommission (in point 122) stated inter alia that 'the time has come to bring theECSC competition rules as far into alignment as possible with those of the RomeTreaty‘.

C — The administrative procedure before the Commission

39.

    On 16, 17 and 18 January 1991 the Commission, acting on the basis of individualdecisions adopted pursuant to Article 47 of the Treaty, carried out inspections inthe offices of seven undertakings and two associations of undertakings. Furtherinspections were carried out on 5 March, 7 March and 25 March 1991. Additionalinformation was provided by some of the undertakings and associations concernedon the basis of requests made by the Commission pursuant to Article 47 of theECSC Treaty.

40.

    On 6 May 1992 the Commission sent a written statement of objections to theundertakings and associations concerned, including the applicant. The applicantreplied to that statement by letters of 31 July and 14 August 1992.

41.

    The parties were also given the opportunity to present their cases at a hearing heldin Brussels between 11 and 14 January 1993, the minutes of which were circulatedto them on 8 July and 8 September 1993. On that occasion, having regard to thenumerous references made by the parties present to certain contacts allegedly

maintained by DG III with the beams producers during the period covered by thestatement of objections, the Hearing Officer requested them to produce to him allthe evidence which they held in that connection. The applicant replied to thatrequest by letter of 16 February 1993.

42.

    By letter of 22 April 1993 the Hearing Officer informed the parties concerned thathe did not intend to hold a second hearing.

43.

    On 15 February 1994, that is to say, the day before the Decision was adopted, thenegotiations then under way between the Commission and the representatives ofthe steel industry designed to restructure that industry through voluntary reductionsin production capacity were broken off through lack of success.

44.

    According to the minutes of the 1189th meeting of the Commission (morning andafternoon) produced by the defendant at the Court's request, the Decision wasdefinitively adopted during the afternoon session on 16 February 1994.

45.

    At midday on 16 February 1994, Mr Van Miert, the Commission Memberresponsible for competition matters, gave a press briefing at which he announcedthat the Commission had just adopted the Decision and indicated the level of thefines imposed on the applicant itself and on the applicants Preussag and ARBED. Those amounts did not correspond to the amounts indicated in the Decision. Healso set out in detail a number of criteria applied in determining the fines andreplied to journalists' questions. In particular, he denied that there was anyconnection whatever between the adoption of the Decision and the failure, on theprevious day, of the negotiations to secure voluntary reductions in productioncapacities.

46.

    During a debate in the European Parliament on 24 February 1994, a number ofmembers questioned the reasons which had led the Commission to adopt theDecision on the day after the negotiations on restructuring the industry hadcollapsed. Mr Van Miert defended the Commission's position and stressed that thetwo matters were quite separate.

D — The Decision

47.

    The Decision, which the applicant received on 3 March 1994 under cover of aletter of 28 February 1994 from Mr Van Miert ('the Letter‘), contains thefollowing operative part:

'Article 1

The following undertakings have participated, to the extent described in thisDecision, in the anti-competitive practices listed under their names which

prevented, restricted and distorted normal competition in the common market. Where fines are imposed, the duration of the infringement is given in monthsexcept in the case of the harmonisation of extras where participation in theinfringement is indicated by ”x”.

...

British Steel

(a)    Exchange of confidential information through the Poutrelles Committee (25)

(b)     Price fixing in the Poutrelles Committee (27)

(c)     Price fixing in the Italian market (3)

(d)     Price fixing in the Danish market (30)

(e)     Market sharing, ”Traverso system” (3 + 3)

(f)     Market sharing, France (3)

(g)     Market sharing, Italy (3)

(h)     Market sharing British Steel, Ensidesa and Aristrain (8)

(i)     Market sharing British Steel and Ferdofin (30)

(j)     Harmonisation of extras (x)

...

Article 2

Eurofer has infringed Article 65 of the ECSC Treaty by organising an exchange ofconfidential information in connection with the infringements committed by itsmembers and listed in Article 1.

Article 3

The undertakings and associations of undertakings mentioned in Articles 1 and 2shall henceforth bring to an end the infringements referred to in Articles 1 and 2to the extent that they have not already done so. To this end, the undertakings andassociations of undertakings shall refrain from repeating or continuing any of theacts or behaviour specified in Article 1 or as the case may be Article 2 and shallrefrain from adopting any measures having equivalent effect.

Article 4

For the infringements described in Article 1 which took place after 30 June 1988(31 December 1989 (2) in the case of Aristrain and Ensidesa) the following fines areimposed:

...

British Steel plc

ECU 32 000 000

...

Article 5

The fines imposed pursuant to Article 4 shall be paid within three months of thedate of notification of this Decision ...

On the expiry of that period interest shall automatically be payable at the ratecharged by the European Monetary Cooperation Fund on its ecu operations on thefirst working day of the month in which this Decision was adopted, plus 3.5percentage points, i.e. 9.75 %.

Fines in excess of ECU 20 000 may, however, be paid in five equal annualinstalments:

—    the first to be paid within three months of the date of notification of thisDecision;

—    the second, third, fourth and fifth instalments to be paid respectively one,two, three and four years after the date of notification of this Decision. Each instalment shall be increased by the interest, calculated on the totalamount remaining to be paid by applying the interest rate used by theEuropean Monetary Cooperation Fund in its operations in ecu in the monthpreceding the due date of each annual payment. This facility is granted oncondition that by the date provided for in the first indent, a bank guaranteeacceptable to the Commission, covering the remaining principal and interesthas been presented.

    In the case of late payment this interest rate shall be increased by 3.5percentage points.

...

Article 6

This Decision is addressed to:

...

—    British Steel plc

...‘.

48.

    After reciting the provisions of Article 5 of the Decision, the Letter provides asfollows:

'If you appeal to the courts of the European Communities, the Commission willnot recover the debt as long as the case is before these courts, on condition that:

—    you accept that your debt, between the moment of its exigibility and themoment of payment which should take place in the month following thedelivery of the final verdict, will bear interest at the following rates:

    —    in case you have chosen to pay in one time, at the rate of 7.75 %,

    —    in case you have chosen to pay in annual instalments, the rate for thefirst instalment shall be 7.75 % and for the successive instalments, therate mentioned in Article 5 for each instalment, increased by one anda half points;

—    and you provide the Commission not later than the date of expirymentioned in Article 5, first indent, of the Decision with a guaranteeacceptable by the Commission covering the debt both as regards theprincipal and as regards the interest. ...‘

Procedure before the Court of First Instance, developments following the bringingof the action, and forms of order sought by the parties

49.

    The present action was brought by application lodged at the Court Registry on13 April 1994.

50.

    On the same date, the applicant also lodged an application under Article 39 of theECSC Treaty for suspension of application of Article 5 of the Decision and ofcertain passages in the Letter. That application was registered at the Registry ofthe Court under case number T-151/94 R. Following the explanations given by thedefendant and the applicant's agreement to withdraw its application, asdemonstrated by its letter of 26 May 1994, the President of the Court, by order of13 July 1994, ordered the removal of that application from the register.

51.

    By letter of 7 September 1994 addressed to the Registry, Aristrain, the applicantin Case T-156/94, asked whether the Commission had, in the case in point,complied with its obligations under Article 23 of the ECSC Statute of the Court ofJustice ('Article 23‘) concerning the transmission of documents. Upon beingrequested to submit its observations on that request, the Commission replied inessence, by letter of 12 October 1994, that in its view it had complied with therequirements of Article 23.

52.

    By letter of 25 October 1994, the Court Registry requested the Commission to fulfilits obligations under Article 23. The Commission lodged with the Registry a totalof approximately 11 000 documents relating to the Decision under cover of a letterdated 24 November 1994, in which it stated in particular that the undertakings inquestion should not be given access to the documents containing business secretsor to the Commission's own internal documents.

53.

    Following an informal meeting with the parties on 14 March 1995, the Court ofFirst Instance (Third Chamber, Extended Composition) requested those parties, bya letter from the Registry of 30 March 1995, to define in writing their positionregarding the issues of confidentiality thus raised, and also regarding possiblejoinder of the cases. In view of the incomplete replies given by the parties, theCourt addressed a second series of questions to them, by letter from the Registryof 21 July 1995 (25 July 1995 in the applicant's case). In addition, the Courtrequested the defendant to define its position regarding a fresh application by theapplicant on 14 July 1995.

54.

    In their replies to the questions put by the Court, received between 6 and15 September 1995, the applicants stated in particular that they wished to be givenaccess to the Commission's internal documents, in the light of a list of thosedocuments annexed to a letter which the defendant had produced before the Courton 25 June 1995.

55.

    By order of 19 June 1996 in 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 NMHStahlwerke and Others v Commission [1996] ECR II-537 ('the order of 19 June1996‘), the Court of First Instance (Second Chamber, Extended Composition, towhich the Judge-Rapporteur had in the interim been assigned) ruled on theapplicants' right of access to the documents in the file sent by the defendantemanating, first, from the applicants themselves and, second, from third parties notinvolved in the present proceedings which the Commission had, in the interests ofthose parties, classified as confidential. However, the Court reserved its decisionon the applicants' requests for access to the documents in that file which thedefendant had classified as internal documents, and on their applications for theproduction of documents not appearing in that file; it ordered the defendant toexplain in detail and specifically the reasons why it considered that certain

documents classified by it as 'internal‘ among the documents contained in that filecould not, in its view, be communicated to the applicants.

56.

    The defendant acceded to that request by the Court by letters dated 11, 12 and13 September 1996. In those letters, the defendant proposed that the cases inpoint be referred to the Court sitting in plenary session pursuant to Article 14 ofits Rules of Procedure. Upon being requested to submit their observations on thatproposal, the applicants replied by letters addressed to the Court and dated 4 to18 October 1996. The applicants in Cases T-134/94, T-137/94, T-138/94, T-148/94,T-151/94 and T-157/94 opposed such a reference.

57.

    By order of 10 December 1997 in 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 NMHStahlwerke and Others v Commission [1997] ECR II-2293 ('the order of10 December 1997‘), the Court of First Instance (Second Chamber, ExtendedComposition) ruled on the applicants' applications for access to the documentsclassified by the Commission as 'internal‘, ordering that certain documentssubmitted to the Court under Article 23 concerning the contacts between DG IIIand the steel industry during the infringement period decided on in the Decisionfor the purpose of fixing the amount of the fines and certain documents fromDirectorate-General for External Relations (DG I) relating to the contactsestablished between the Commission and a number of national Scandinavianauthorities be put on the case-files. The Court also adopted certain measures ofinquiry, ordering the Commission to produce its own minutes or notes relating tothe meetings held between DG III and the representatives of the steel industrybetween July 1988 and November 1990. Finally, the Court ordered that the casesbe joined for the purposes of the inquiry and the oral procedure, without referringthem to the Court sitting in plenary session.

58.

    Upon hearing the report of the Judge-Rapporteur, the Court decided to open theoral procedure and to put various written questions to the parties on the basis ofArticle 64 of the Rules of Procedure. In particular, it requested the defendant, byletter sent by the Registry on 26 November 1997, to produce the text of thedefinitive minutes of the Commission's meeting of 16 February 1994 (morning andafternoon) in so far as they related to the adoption of the contested Decision. Inthat letter, the Court also called on the Commission to indicate, for each applicantand for the undertakings Norsk Jernverk and Inexa Profil AB:

—    the turnover figure it had taken into account in imposing the fine on eachundertaking;

—    the different rates which it had applied to turnover in order to calculate thefine for each undertaking concerned;

—    the arguments or considerations, set out in detail for each undertaking,which it had taken into account in regard to the different circumstances,

aggravating or mitigating, for the purpose of obtaining a final figure for thefine.

59.

    The defendant replied to those letters of the Court by letter of 19 January 1998,which was lodged at the Court Registry on 22 January 1998. Under cover of thatletter, it forwarded to the Court two documents entitled 'Draft minutes of the1189th meeting of the Commission held in Brussels (Breydel) on Wednesday16 February 1994 (morning and afternoon)‘ and 'Special draft minutes of the1189th meeting of the Commission held in Brussels (Breydel) on Wednesday16 February 1994 (morning and afternoon)‘, but argued that these two documentswere confidential and should not be divulged to the applicants.

60.

    On 14 January 1998 the Court held an informal meeting with the parties with aview to planning the smooth conduct of the hearing. In particular, it pointed outto the parties that they were entitled to access to the case-file sent to the Courtpursuant to Article 23 to the extent indicated in the orders of 19 June 1996 and10 December 1997 and in accordance with the arrangements to be determined bythe Registry. The Court also requested the parties to inform it, after having hadaccess to the file, to which specific additional documents they intended to refer atthe hearing.

61.

    The applicants ARBED, Aristrain, Cockerill-Sambre, British Steel, Ensidesa,Preussag and Unimétal inspected that Court file and obtained a copy of thedocuments which they considered necessary for their defence. By letter of9 February 1998, Ensidesa submitted observations on a number of the documentsin question.

62.

    By letters sent by the Registry on 30 January 1998, the Court put a number ofadditional questions to the Commission and Eurofer concerning the system ofmonthly exchange of information on orders and deliveries established by Euroferand described in the Decision as 'fast bookings‘. Those parties replied by lettersof 18 February and 23 February 1998 respectively.

63.

    By letter sent by the Registry on 6 February 1998, the Court also put a number ofadditional questions to the defendant concerning the method used in this case forcalculating the fines. The Commission replied by letter of 20 February 1998,lodged at the Registry on 24 February 1998.

64.

    By order of 16 February 1998, the Court (Second Chamber, ExtendedComposition) ordered that only the document entitled 'Draft minutes of the 1189thmeeting of the Commission held in Brussels (Breydel) on Wednesday 16 February1994 (morning and afternoon)‘, which had been lodged with the Registry on22 January 1998, should be placed on the file and communicated to the applicants.

65.

    By letters of 13 February and 19 February 1998, the applicants jointly requestedthat measures of inquiry be adopted concerning, in particular, the calculation of thefines and the production of documents linked to the adoption of the Decision. TheCommission replied to those requests by letter of 2 March 1998.

66.

    By letter sent by the Registry on 11 March 1998, the Court requested thedefendant, in the first place, to amplify its replies of 19 January and 20 February1998 to the questions put by the Court by specifying, for each applicant, the precisearithmetical calculations making it possible to understand exactly how the amountsof the fines had been determined, and, second, to produce the definitive minutesof the Commission meeting (morning and afternoon) at which the Decision wasadopted, in addition to its annexes in so far as they related to the Decision. Thedefendant replied to that request by letter of 19 March 1998 and lodged with theRegistry the definitive minutes of the Commission meeting of 16 February 1994together with the annexes thereto.

67.

    By order of 23 March 1998 the Court ordered that Messrs Ortún andVanderseypen, officials with DG III, as well as Mr Kutscher, a former official ofDG III, should be heard as witnesses concerning the contacts established betweenDG III and the steel industry during the period of infringement decided on for thepurpose of determining the fines, that is to say, from 1 July 1988 to the end of1990.

68.

    During the hearing held from 23 to 27 March 1998, the parties submitted oralargument and replied to the questions put by the Court (Second Chamber,Extended Composition), composed of Judges Kalogeropoulos, President, Briët,Bellamy, Potocki and Pirrung. The applicants submitted joint pleadings on anumber of issues. The Court heard, in an expert capacity, Professor Steindorff,former Secretary-General of the German delegation at the negotiations whichpreceded the signing of the ECSC Treaty. The Court also heard, as witnesses,Messrs Ortún, Vanderseypen and Kutscher, as well as, at the request of Preussag,that undertaking's representatives Messrs Mette and Kröll. The Court also vieweda video recording, made by Aristrain, of the press briefing held by Mr Van Mierton 16 February 1994.

69.

    A number of new documents were lodged during the hearing at the request of theCourt or with its authorisation. The Court also called on the Commission toproduce certain documents concerning its relations with the Scandinavian nationalauthorities during 1989 and 1990. Those documents were lodged with the Registryunder cover of a Commission letter dated 11 May 1998.

70.

    The oral procedure was closed at the end of the hearing on 27 March 1998. Sincetwo members of the Chamber were prevented from taking part in the judicialdeliberations following the expiry of their mandate on 17 September 1998, theCourt's deliberations were continued by the three judges whose signatures thepresent judgment bears, in accordance with Article 32 of the Rules of Procedure.

71.

    The applicant claims that the Court should:

—    annul the Decision;

—    cancel the fine imposed by the Decision;

—    in the alternative, reduce the fine;

—    in the event that the Court cancels or reduces the fine, order theCommission to repay to the applicant the fine or such part thereof alreadypaid by the applicant at the date of the Court's judgment together withinterest thereon at a rate to be agreed or, in default of agreement, at a rateto be determined by the Court;

—    annul the contested provisions of the Letter;

—    substitute for the contested provisions of the Letter non-discriminatoryterms as to the rate of interest payable;

—    order the Commission to pay the costs.

72.

    The defendant claims that the Court should:

—    dismiss the application;

—    order the applicant to pay the costs.

The claim for annulment of the Decision

73.

    In support of its claim for annulment of the Decision, the applicant puts forwarda number of submissions and arguments which may be grouped as follows. In thefirst place, it raises a series of arguments alleging infringement of its rights ofdefence (fifth plea in law in the application). Second, the applicant raises anumber of arguments alleging that the Commission breached essential proceduralrequirements during the administrative procedure (27th plea in law in theapplication). Third, the applicant advances a series of arguments alleginginfringement of Article 65(1) of the Treaty and failures to state reasons (first tofourth and sixth to fifteenth pleas in law in the application).

A — Infringement of the rights of defence

Summary of the applicant's arguments

74.

    The applicant first alleges that the Commission infringed its rights of defenceduring the administrative procedure by failing to make available to it the evidenceon the basis of which it drew up the statement of objections. That evidenceconsists, in particular, of documents reflecting the Commission's attitude to thelawfulness of the harmonisation of both the structure and amounts of extras; notesand other memoranda produced for or following various meetings between theCommission and industry representatives; documents relating to the Commission'sknowledge of the producers' practice, during and after the period of manifest crisis,of aligning their prices to actual market prices; and documents relating to theCommission's interpretation and application of Article 60 of the ECSC Treaty andits view as to the relationship between that article and Article 65. According to theapplicant, the disclosure of those documents could potentially have determined thequestion as to the lawfulness of its conduct under Article 65 of the ECSC Treatyand whether any fine imposed on it was appropriate.

75.

    Second, the applicant, referring to recital 312 of the Decision, in which theCommission accepted the importance of the allegation made by the undertakingsat the hearing that the Commission was aware of the existence of the allegedlyrestrictive practices in question, submits that the defendant also infringed its rightsof defence in failing to provide it with any evidence as to the nature of theinvestigation or the evidence obtained during that investigation.

76.

    Third, the applicant claims that the Commission carried out an inadequateinvestigation. That investigation, it claims, was too limited in scope, in that itrelated only to the period after 30 June 1988. The investigation, it goes on, alsodid not go beyond an examination of the facts and documents submitted by theproducers to the Commission. In particular, the Commission failed to carry out aproper investigation to find out what the discussions on the market situationbetween the officials of DG III and the industry representatives comprised, andmade no attempt to question those who had been staff members of DG III at thetime.

Findings of the Court

77.

    The Court notes at the outset that the heads of complaint alleging infringement ofthe applicant's rights of defence are formally distinct from the question whether theapplicant infringed Article 65(1) of the Treaty or whether the Commissionencouraged or tolerated the infringements in question. Those questions will beexamined later (see Part C below dealing with the examination of the infringementsof which the applicant is accused, and Part D dealing with the Commission'salleged involvement in those infringements).

78.

    The rights of the defence which the applicant invokes are guaranteed by the firstparagraph of Article 36 of the ECSC Treaty, according to which the Commission

must, before imposing a pecuniary sanction provided for in that Treaty, give theparty concerned an opportunity to submit its comments.

79.

    It is common ground in this case that the Commission sent to the applicant astatement of objections containing all of the allegations of fact and law madeagainst it during the procedure opened under Article 65(1) of the Treaty. Theapplicant replied to that statement of objections by letters of 31 July and 14 August1992, as well as during the hearing held on 11 to 14 January 1993. To that extent,the Commission complied with the provisions of Article 36 of the Treaty.

80.

    With regard to the allegation that the Commission none the less infringed the rightsof the defence by failing to conduct a sufficient investigation to establish whetherits departments were aware of the incriminated practices, the Court notes that, intheir reply to the statement of objections and during the hearing, a number ofundertakings, including the applicant, contended that the Commission hadencouraged or, at least, tolerated the practices in question. The Commission thusfound itself facing allegations of importance for the defence of the undertakings inquestion, as, moreover, it recognised in recital 312 of the Decision, and it was, withregard to the conduct of its own departments, in a privileged position, comparedwith those undertakings, to establish whether those allegations were true or false.

81.

    In those circumstances, the Court holds that it follows from the principles of soundadministration and equality of arms that the Commission was under an obligationto examine seriously this aspect of the case-file in order to determine the extent towhich the allegations in question were or were not well founded. However, it wasfor the Commission, and not for the applicants, to decide how to conduct such anexamination.

82.

    It appears from the file which the Commission forwarded to the Court underArticle 23 that, by Note No 002793 of 22 July 1991 (document no 9741 on the file,made accessible to the applicant pursuant to the order of 10 December 1997), thusbefore the statement of objections was sent, that Mr Temple Lang, Director ofDirectorate D 'Cartels, Abuse of Dominant Positions, and Other Distortions ofCompetition III‘ of DG IV, wrote as follows to Mr Ortún, Director of DirectorateE 'Internal Market and Industrial Affairs III‘ of DG III:

'I wish ... to clarify the extent to which information was exchanged between DG IIIand CDE Eurofer during the meetings for preparation of the steel forwardprogrammes. Could you set out for me:

—    the method used to calculate the Community figures for crude steel andproduct categories when they were published;

—    statistics received by DG III during meetings with the CDE delegation, aswell as the extent to which they were aggregated and their frequency.

Did you hear any reference, during your meetings, to a ”Traverso method”, whichappears to have the purpose of adapting demand and deliveries by nationalmarkets for the various categories of products?‘

83.

    In his reply Note No 10018 of 12 September 1991 (Annex 1 to the statement indefence), Mr Ortún stated inter alia as follows for Mr Temple Lang's attention:

'2.    Regarding the information received from Eurofer, apart from a copy of therapid Eurofer statistics concerning orders and deliveries of which you areaware, we received forecasts in the form annexed ... The data were alsoaggregated at the EEC level.

    I would also point out that DG III had also taken care (while the system offorecasts on a product basis was at an early stage) to publish onlyproduction (and not delivery) forecasts, to round them off and to changetheir definition ... with a view to distancing itself from the definitionsadopted by Eurofer.

3.    The meetings with the CDE took place within the framework of themeetings of the group of surveillance experts, as a rule every three months,in order to comment on the market situation. These meetings have recentlybecome more occasional in nature. The last meeting, at which the attached[speaking] note was handed to me, dates from 19 July 1991. I considerthese meetings to be useful for ensuring a regular monitoring of the market...

4.    With regard to the so-called ”Traverso” method, I must admit that none ofmy present colleagues had heard any reference [to this] ...‘

84.

    The file which the Commission submitted to the Court pursuant to Article 23 alsocontains a note of 27 January 1993 from Mr Ehlermann, the Director-General ofDG IV, to Mr Perissich, the Director-General of DG III (Document No 9729,made available to the applicant under the order of 10 December 1997), which isworded as follows:

'In the case in question, my departments consulted your departments, in particularduring the preparation of the statement of objections and in regard to the writtenreplies of certain undertakings which refer to the action of DG III.

It follows from the hearing which took place between 11 January and 14 January1993, which representatives of your departments attended, that the parties attachthe utmost importance in their respective defences to the argument that theCommission, in this case DG III, was aware of the practices complained of, inparticular through the ”speaking notes” drafted by the industry.

The Hearing Officer refused the parties, and their representatives who sorequested, access to the files of DG III, but suggested to them that they forwardto DG IV, within two weeks of the conclusion of the hearing, any documents intheir possession which might, at least in their opinion, exonerate them.

So far as this particular point is concerned, I should be very grateful if you couldcheck once more whether you have in your archives any documents of this type(whether correspondence between the undertakings and the Commission ordocuments originating with the undertakings and made available to theCommission's departments) and, if so, send me copies of them with yourcomments‘.

85.

    Mr Perissich replied to Mr Ehlermann by Note No 001836 of 12 February 1993(document no 9737 on the file which the Commission forwarded to the Court,made available to the applicant pursuant to the order of 10 December 1997). Heattached to his note that of 12 September 1991 from Mr Ortún, along with theannexes thereto, and pointed out:

'As you can confirm in the annexes, the very general nature of the information inthese ”speaking notes” did not in any case give my departments grounds to suspectthat they might be the result of practices contrary to the ECSC Treaty.

The purpose of those meetings with Eurofer was always confined to a continuousstudy of market trends, as provided for under Article 46.1 of the Treaty.

If you so wish, we could send you the speaking notes relating to other quarters. The archives of DG III do not contain any other document which could, in myopinion, have any bearing on this case‘.

86.

    Mr Temple Lang also forwarded to Mr Ortún, by note of 18 February 1993(Document No 9763 on the file sent by the Commission to the Court under Article23, made available to the applicant pursuant to the order of 10 December 1997),the documents (speaking notes) sent to DG IV by the applicants Preussag andUnimétal following the hearing, requesting Mr Ortún to examine them and to lethim know his views 'on the significance to be attached to the information whichthey contain in regard to the practices of beam producers which are the subject ofcomplaint‘. Mr Temple Lang also sent to Mr Ortún, by note of 22 February 1993(Document No 9764 on the file sent by the Commission to the Court under Article23, made available to the applicant pursuant to the order of 10 December 1997),the documents sent by the applicant and by the applicants Cockerill-Sambre andTradeARBED, with a request for comments.

87.

    Mr Ortún sent his comments to Mr Temple Lang by note of 5 May 1993(Document No 9769 on the file sent by the Commission to the Court under Article

23, made available to the applicant pursuant to the order of 10 December 1997),confirming, in substance, the earlier comments of DG III.

88.

    The Commission's file (see Annex 4 to the statement in defence) also contains aconfidential note of 19 February 1993 from Mr Ortún to Mr Schaub (DG IV),which is set out as an 'argument in response to accusations‘ intended to 'reply tothe producers' assertions that DG III knew of, or was even involved [in the]practices investigated by the Commission (DG IV)‘.

89.

    With regard to the alleged involvement of DG III in exchanges of informationconcerning quantities and monitoring, that note states as follows:

'Meetings with commercial experts of Eurofer, extended to include non-Euroferindependent operators, were held within the context of Decision No 2448/88 on themarket surveillance instituted at the end of the quota system and up to the end ofJune 1990.

The aggregated production and delivery results of the undertakings were submittedto the participants for their comments and for comparison with the forecasts madewithin the framework of the Steel Forward Programme (Programme PrévisionnelAcier — PPA). Trends in external trade in the same products were also analysedin order to complete the assessment of the market.

These meetings also made it possible to collect, for purposes of the PPA,information on future market trends (in particular exports) for those productswhich were the subject of surveillance. At no time during those meetings was anyreference made to the possibility of organising the market on an individual productbasis.

The ”speaking notes” which the representative of the CDE (generally,Mr Traverso) used during those meetings were drafted previously within Euroferwithout any officials from DG III being present. The fact that DG III receivedthose speaking notes outside these ”monitoring” meetings cannot in any eventconstitute approval of practices contrary to the ECSC Treaty.

...

It was only at the end of monitoring and for practical reasons that ”steel lunches”replaced this type of meeting. The purpose served by these contacts with Euroferwas always confined to the ”continuous study of market trends” as provided forunder Article 46.1 of the Treaty. It should also be pointed out that, to that end,our departments have developed contacts with all interested parties: associationsof independent producers, traders and consumers‘.

90.

    Dealing with DG III's alleged knowledge of the concerted pricing practices, thatnote states that:

'(a)    regarding prices, the speaking notes in question above were always confinedto indicating a trend in very general indicators (for example, flat products

over their entire range) relating to the past and an estimate ofdevelopments expected over the following quarter.

    Here too, the very general nature of the information did not allow ourdepartments in any case to suspect practices contrary to the ECSC Treaty.

(b)    Harmonisation of extras

    Decision No 31/53/ECSC requires undertakings to inform the Commissionof their price lists as well as of any change therein. ... Being in possessionof all price lists and in regular receipt of any changes to them, thedepartments of DG III were able to observe the parallel similarities in thestructure, the price levels and occasionally the dates of publication of theprice-list extras. Since this practice was not contrary to the rules of Article60, it was never picked up by our departments or by the numerous Article60 controls carried out by DG IV.‘

91.

    The Court takes the view that it follows from all these documents that theCommission properly took into account the comments and documents submittedby the undertakings at the hearing, which comments and documents wereforwarded to DG III for commentary and explanations. Furthermore, DG III wasrequested by DG IV, at the latter's initiative, to explain its alleged 'involvement‘in the practices in question, on a first occasion during the administrativeinvestigation and on a second occasion after the hearing.

92.

    Admittedly, the DG IV officials responsible for the investigation in the 'beams‘cases did not apparently have any direct discussions with the DG III officials whohad attended the meetings with the producers and also did not ask to examine theminutes of those meetings and other internal notes in the DG III archives producedat the Court's request. However, the Court considers that a Commissiondirectorate cannot be criticised for attaching credence, without seeking to verifythem by other means, to the precise and detailed explanations provided at itsrequest by another directorate, which, moreover, it is not its function to check.

93.

    It follows that the applicant has failed, in regard to the period after 30 June 1988,to establish that no sufficiently serious internal investigation was carried out in thiscase.

94.

    With regard to the fact that this investigation did not cover the period prior to1 July 1988, it suffices to note that the Commission did not take into account, forpurposes of the fine, infringements allegedly committed before that date (see recital311 of the Decision).

95.

    The applicant's arguments based on the alleged inadequacy of the internalinvestigation conducted by the Commission must therefore be rejected asunfounded.

96.

    As regards the complaint that the Commission failed to make available to theapplicant the material collected during its internal investigation, it must be bornein mind that the guarantee of the rights of the defence afforded by the firstparagraph of Article 36 of the Treaty does not require the Commission to reply toall the arguments of the party concerned, to carry out further investigations or tohear witnesses put forward by the party concerned, where it considers that thepreliminary investigation of the case has been sufficient (Case 9/83 Eisen und MetallAktiengesellschaft v Commission [1984] ECR 2071, paragraph 32, and Case 183/83Krupp Stahl v Commission [1985] ECR 3609, paragraph 7).

97.

    In this case, the undertakings concerned were in a position to consider the allegedexonerating documents in their possession in their reply to the statement ofobjections. In any event, the hearing on 11, 12, 13 and 14 January 1993 providedthem with an opportunity to set out their position in detail, and the Commissionalso gave them an additional opportunity to state their views in writing (see thejudgment in Krupp Stahl v Commission, cited above, paragraph 8).

98.

    In those circumstances, the fact that the Commission decided to open an internalinvestigation was not, in itself, such as to oblige it to make the material collectedduring that investigation available to the applicants.

99.

    The Court finds that the defendant adequately respected the rights of defence ofthe undertakings concerned by informing them of the results of that investigationby letter of 22 April 1993 from the Hearing Officer indicating that the documentswhich they had provided following the hearing did not support the conclusion thatthe Commission was aware of their practices, and that they did not justify a secondhearing.

100.

    In particular, the Court considers that the Commission was not under anyobligation to pass on to the undertakings concerned, during the administrativeprocedure, the internal notes relating to its investigation or to give them anopportunity to set out their views thereon during the administrative procedure,since those documents, which were confidential by nature, clearly did not containany exonerating material.

101.

    In a situation such as that of the present case, the procedural rights of theundertakings concerned must be regarded as being sufficiently guaranteed by theirright to bring an action before the Court and to challenge, in that action, thesoundness of the conclusion reached by the Commission in recital 312 of theDecision, while requesting the Court, if necessary, to adopt the measures necessaryfor inquiring into that aspect of the case (see the order of 10 December 1997).

102.

    Neither the documents which the Commission forwarded to the Court under Article23, nor the Court's own examination, nor the numerous documents produced by theapplicant itself have revealed the existence of other documents exonerating it. Moreover, there is nothing to suggest that the applicant was not enabled to express

its views during the administrative procedure, particularly in view of its voluminousreplies to the statement of objections.

103.

    All the applicant's arguments alleging infringement of its rights of defence musttherefore be rejected in their entirety.

B — Infringement of essential procedural requirements

Summary of the applicant's arguments

104.

    In the twenty-seventh plea in law raised in its application, the applicant challengesthe regularity of the procedure followed by the Commission when adopting theDecision, relying in particular on the fact that, at the press briefing which he gaveat noon on 16 February 1994, Mr Van Miert announced that the Commission wasproposing to fine it ECU 27 million, whereas the fine in the Decision notified toit amounted to ECU 32 million. In reply to the argument which the Commissionraised in its statement in defence, to the effect that the Decision had not yet beenadopted when the press briefing was held, the applicant submits in particular thatthe announcement, by one of the Commission Members, that a decision had beenadopted, and giving details of its content, before that decision had been adoptedby the Commission, amounts to a breach of the principles of collegiateresponsibility and confidentiality. By acting in this way, Mr Van Miert prejudgedthe Commission's deliberations and fettered its power to act. Finally, the applicantrequests the Court to investigate whether the Commission complied with essentialprocedural requirements when it adopted the Decision.

105.

    Following production by the Commission, at the Court's request, of the definitiveminutes of the Commission meeting (morning and afternoon) of 16 February 1994(see paragraph 66 above), the following heads of complaint, relating to breach ofessential procedural requirements during the procedure for the adoption of theDecision, were presented during a joint submission made at the hearing on behalfof all the applicants.

106.

    First, the applicants point out that, during the press briefing which he held atmidday on 16 February 1994, Mr Van Miert stated that the Decision had beenadopted, which was not the case, and that he also gave incorrect figures concerningcertain fines (see Appendix 1 to the application). The Commission's press releases,prepared before the Decision was adopted, also contained errors, in particularconcerning the identity of the undertakings on which fines were imposed.

107.

    In those circumstances, the applicants, relying on the judgment of the Court ofJustice in Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555('the PVC judgment‘) and the judgments of the Court of First Instance in CaseT-31/91 Solvay v Commission [1995] ECR II-1821, paragraph 50, and in Joined

Cases T-80/89, T-81/89, T-83/89, T-87/89, T-88/89, T-90/89, T-93/89, T-95/89, T-97/89, T-99/89, T-100/89, T-101/89, T-103/89, T-105/89, T-107/89 and T-112/89BASF and Others v Commission [1995] ECR II-729, paragraphs 114 and 119 ('theLdPE judgment‘), put forward four main heads of complaint.

108.

    First, the quorum of nine members of the Commission required under Article 5 ofthe Commission's Rules of Procedure of 17 February 1993, which were in force atthe time (93/492/Euratom, ECSC, EEC, OJ 1993 L 230, p. 15, hereinafter 'the1993 Rules of Procedure‘) was, they argue, not achieved. According to theapplicants, although it appears to follow from page 2 of the minutes of theCommission's meeting of 16 February 1994 that nine members were present whenthe Decision was adopted during the afternoon session (point XXV, p. 43), itfollows in fact from the list of persons mentioned as having 'attended the sessionin the absence of the Commission Members‘ on page 40 of those minutes that onlysix Commission Members were in fact present at that session. In the absence ofa quorum, therefore, no vote on the adoption of the Decision could validly havebeen taken in accordance with Article 6 of the 1993 Rules of Procedure.

109.

    Second, the applicants submit that the Decision was not adopted by theCommission in the form notified to them. In any event, it was impossible todetermine the precise content of the decision which the Commission intended toadopt on 16 February 1994.

110.

    According to the minutes of the meeting (p. 43), the Commission approved 'in allthe languages having binding force, the decision set out in Document C(94)321/2and 3‘, whereas the version of the Decision notified to the applicants is numbered'C(94)321 final‘. Furthermore, according to the list of internal documentssubmitted to the Court under Article 23 and annexed to the Commission's letterof 27 June 1995, there is another version of the Decision bearing the numberC(94)321/4 and dated 25 February 1994.

111.

    Furthermore, they argue, there are justified doubts as to the various versions of theDecision lodged with the Registry of the Court following its request of 11 March1998. Apart from the fact that only the Spanish and Italian versions bear the words'authentic version‘ on their cover page, the documents C(94)321/2 and C(94)321/3appear to consist of several documents prepared separately, drafted with differentcharacter fonts and having inconsistent pagination.

112.

    In view of the fact that the Commission decided, during the hearing, to liftconfidentiality from the internal documents relating to the adoption of the Decision contained in document files 57, 58 and 61 of the case-file sent to the Courtpursuant to Article 23, counsel for the applicants state that their doubts have beenreinforced by the discovery of a number of differences, summarised in a list lodgedat the hearing, between the internal documents in those document files and thedocuments C(94)321/2 and C(94)321/3. Furthermore, there are significantdifferences between the document in the Commission's document file 61, which in

the applicants' view constitutes document C(94)321/1 as examined by theCommission during its morning meeting on 16 February 1994, and documentsC(94)321/2 and C(94)321/3. These differences too are summarised in a second listsubmitted at the hearing. Finally, the applicants claim that a number of changeswere made by hand to the Italian version of document C(94)321/2 following receiptof a telex from the Commission's translation services between 17.09 hours and17.14 hours on 16 February 1994, and thus after the closure of the meeting at 16.25hours.

113.

    Third, the applicants submit that neither the version C(94)321 final nor the versionsC(94)321/2 and C(94)321/3 of the Decision were authenticated in accordance withArticle 16 of the 1993 Rules of Procedure. None of those versions was annexedto the minutes within the meaning of that provision, which requires that they bephysically attached. The minutes, moreover, make no reference to the documentsannexed thereto.

114.

    In any event, the minutes cannot be regarded as having been authenticated inaccordance with Articles 9 and 16 of the 1993 Rules of Procedure in the absenceof the original signatures of the President and the Secretary-General on the coverpage.

115.

    Fourth, the applicants argue that the minutes do not bear the date on which theywere signed by the President and Secretary-General of the Commission andconsequently cannot be presumed to have been authenticated at the time whenthey were approved.

116.

    Finally, the applicants request the Court to adopt measures of inquiry designed toallow them to inspect the original version of the minutes in the Commission'sarchives and to determine, for example on the basis of the Commission Members'engagement books and similar documents, which Commission Members were infact present when the Decision was adopted during the afternoon session on16 February 1994.

Findings of the Court

Admissibility

117.

    In its application, the applicant raised a plea alleging irregularities in the procedureby which the Decision was adopted. In addition, the minutes of the Commission'smeeting of 16 February 1994 and the annexes thereto must be treated as matterswhich have come to light in the course of the procedure following the measures ofinquiry and organisation of procedure adopted by the Court. Article 48(2) of theCourt's Rules of Procedure does not prohibit the introduction of new pleas basedon such factors. It follows that the present plea is admissible.

Absence of a quorum

118.

    The first paragraph of Article 13 of the Treaty, as inserted by Article H(2) of theTreaty on European Union, provides that the Commission must act by a majorityof the number of its Members, who at the time were 17 in number. Under thesecond paragraph of Article 13 of the Treaty, a meeting of the Commission is validonly if the number of Members laid down in its Rules of Procedure is present.

119.

    Article 5 of the 1993 Rules of Procedure provided that 'the number of Memberspresent required to constitute a quorum shall be equal to a majority of the numberof Members specified in the Treaty‘. It follows that the quorum of those presentrequired for the Commission to have been able validly to deliberate during itsmeeting of 16 February 1994 was nine Members.

120.

    Under Article 6 of the 1993 Rules of Procedure, 'The Commission takes decisionson a proposal from one or more of its Members. A vote shall be taken if anyMember so requests. The vote may be on a proposal as originally made or asamended by the Member or Members responsible or by the President. Commission decisions shall be adopted if a majority of the number of Membersspecified in the Treaty vote in favour‘. It also follows that Commission decisionswere, at that period, adopted with the agreement of nine of its Members.

121.

    According to the minutes of the 1189th meeting of the Commission, held inBrussels on 16 February 1994 ('the minutes‘), sent to the Court following itsrequests of 27 November 1997 and 11 March 1998, that meeting consisted of twosessions, one in the morning and one in the afternoon. Point XVII of the minutes,discussed during the morning session, reads as follows:

'XVII.    CASE CONCERNING APPLICATION OF ARTICLE 65 OF THEECSC TREATY (C(94) 321; SEC (94) 267)

        MR. RENAUDIERE, a Member of the Cabinet of MR VANMIERT, took part in the discussions on this point.

        MR VAN MIERT outlined to the Commission the various elementsof the case submitted to him. He stressed the extreme seriousness ofthe infringements which had been confirmed. He presented to theCommission the fines which he proposed to impose on theundertakings in question.

        The Commission approved the content of the decision proposed byMR VAN MIERT and went on to discuss in detail the amounts of thefines. It decided to state its views at a later stage of the presentmeeting on the final decision, the draft version of which will besubmitted to it by MR VAN MIERT.

        The other Commission discussions on this point are the subject ofspecial minutes.‘

122.

    Point XXV of the minutes, discussed during the afternoon session, reads as follows:

'XXV.    CASE CONCERNING APPLICATION OF ARTICLE 65 OF THEECSC TREATY (CONTINUATION OF POINT XVII) (C(94) 321/2AND /3; SEC (94) 267)

        The Commission continued the discussions which it had begun duringthe morning session. It fixed as follows the fines imposed on theundertakings in question:

        ARBED SA:

11 200 000 Ecus

        British Steel plc:

32 000 000 Ecus

        Unimétal SA:

12 300 000 Ecus

        Saarstahl AG:

4 600 000 Ecus

        Ferdofin SpA:

9 500 000 Ecus

        Thyssen Stahl AG:

6 500 000 Ecus

        Preussag AG:

9 500 000 Ecus

        Empresa Nacional Siderúrgica SA:

4 000 000 Ecus

        Siderúrgica Aristrain Madrid SL:

10 600 000 Ecus

        SA Cockerill-Sambre:

4 000 000 Ecus

        Krupp-Hoesch Stahl AG:

13 000 Ecus

        NMH Stahlwerke GmbH:

150 000 Ecus

        Norsk Jernverk AS:

750 Ecus

        Inexa Profil AB:

600 Ecus

        The Commission also decided that the fines exceeding ECU 20 000may be paid by instalments. It accordingly approved, in the authenticlanguages, the decision contained in Document C(94) 321/2 and /3.

*

                    *            *

        The meeting ended at 16.25 hours.‘

123.

    It follows from points XVII and XXV of the minutes, read together, that theDecision was not definitively adopted when point XVII was being discussed duringthe morning session, but that it was definitively adopted during the discussions onpoint XXV during the afternoon session.

124.

    It is also clear from the attendance list on page 2 of the minutes that nineCommission Members were present when the Commission discussed point XXV,that is to say: Mr Delors, Sir Leon Brittan, Mr Van Miert, Mr Ruberti, Mr Millan,

Mr Van den Broek, Mr Flynn, Mr Steichen and Mr Paleokrassas. The quorumrequired by Article 5 of the 1993 Rules of Procedure was thus achieved. Likewise,the Decision was able to be adopted with the agreement of the nine Memberspresent, in accordance with Article 6 of those Rules of Procedure.

125.

    The applicants' argument, however, is based on the attendance list set out onpage 40 of the minutes, which indicates that Mr Budd and Mr Santopinto, therespective heads of the Cabinets of Sir Leon Brittan and Mr Ruberti, together withMrs Evans, a member of Mr Flynn's Cabinet, 'attended the session in the absenceof the Commission Members‘. From this the applicants infer that, contrary to whatis stated on page 2 of the minutes, Sir Leon Brittan, Mr Ruberti and Mr Flynnwere not present when the Decision referred to in point XXV was adopted.

126.

    That argument cannot be accepted. It is clear from the actual wording of the liston page 2 of the minutes that the purpose of that list was to record precisely whichCommission Members were absent or present during the meeting in question. Thatrecord relates both to the morning and to the afternoon session and is thus proofthat the Commission Members concerned were present during those two sessions,unless it is expressly indicated therein that a Member was absent during thediscussion on a specific point. In contrast, the list on page 40 of the minutes is notintended to record which Commission Members were present but relates solely tothe other persons who may have been present, such as heads of Cabinet. In thosecircumstances, the indirect inferences which the applicants purport to draw fromthat list cannot carry greater weight than the express reference, on page 2 of theminutes, to the presence or absence of Commission Members.

127.

    In any event, the Court takes the view that the words 'attended the session in theabsence of the Commission Members‘, which appear on page 40 of the minutes,must be construed as meaning the same as 'attended in the event that the Membershould be absent for a specific point‘.

128.

    Those words must be considered in conjunction with Article 8 of the 1993 Rulesof Procedure, which provides inter alia that '... In the absence of a Member of theCommission, his chef de cabinet may attend the meeting and, at the invitation ofthe President, state the views of the absent Member. ...‘ The list on page 40 of theminutes was thus not intended to replace that on page 2 but to identify the personsauthorised to attend the meeting in accordance with Article 8 and, whereappropriate, to state the views of the absent Member.

129.

    However, the fact that a head of Cabinet may state the views of the CommissionMember whom he represents on a specific point, in the Member's absence, doesnot preclude the possibility that the Commission Member in question may havereturned to the meeting during the discussion on another point, without his headof Cabinet having left the meeting room following his return. The reference, onpage 40 of the minutes, to the fact that Mr Budd, Mr Santopinto and Mrs Evanswere present during the afternoon session may therefore be explicable by the

simple fact that, according to page 2 of the minutes, Sir Leon Brittan, Mr Rubertiand Mr Flynn were absent during the discussion on certain points of the afternoonagenda, namely points XXIII.B, XXIII.C and XXIV in part (Sir Leon Brittan), aswell as points XXIII.B and XXIII.C in part (Mr Ruberti and Mr Flynn). It doesnot follow, however, that those three Commission Members were absent during thediscussions on point XXV, contrary to the express wording of page 2 of theminutes.

130.

    This interpretation is corroborated by page 7 of the minutes, on which, for themorning session, there is a list of the persons who attended the meeting 'in theabsence‘ of the Commission Members, equivalent to that on page 40 for theafternoon session. If the applicants' interpretation of the words 'attended thesession in the absence of the Commission Members‘ were correct, it would followfrom the indication, on that list, of the presence of Mr Kubosch and Mr Budd,respectively member of the Cabinet of Mr Bangemann and head of Cabinet of SirLeon Brittan, during the entire morning, that those two Commission Members wereabsent during the entire morning session. That was clearly not the case since,according to page 2 of the minutes, Mr Bangemann was present during themorning session for points I to XVIII and Sir Leon Brittan for points XVII toXXII.

131.

    It follows that the required attendance quorum was achieved when the Decisionwas adopted during the afternoon of 16 February 1994.

132.

    It should be added that Article 6 of the 1993 Rules of Procedure provided for theCommission to take decisions on a proposal from one or more of its Members andthat a vote should be taken only if a Member so requests. If no such request wasmade, it was not necessary for the Commission to proceed to a formal vote duringthe afternoon session. In any event, given that, according to Article 6, Commissiondecisions are adopted if a majority of the number of Members specified in theTreaty, that is to say, nine Members at the period in question, vote in favour, therewas nothing to prevent the nine Members present during the afternoon of16 February 1994 from deciding unanimously to adopt the Decision.

133.

    It follows that the applicants' first head of complaint is unfounded.

No strict correspondence between the Decision adopted and that notified to theapplicant

134.

    It follows from the case-law of the Court of Justice that the operative part andreasoning of the decision notified to the person or persons to whom that decisionis addressed must correspond to those of the decision adopted by the college ofCommissioners, exception being made for any corrections merely of spelling and

grammar which may still be made to the text of an act after its formal adoption bythat college (PVC judgment, paragraphs 62 to 70).

135.

    According to point XXV of the minutes, the Commission adopted 'in the authenticlanguages, the decision contained in Document C(94)321/2 and /3‘.

136.

    It follows that the relevant comparison to be made is between the versionsC(94)321/2 and C(94)321/3 of the Decision, read together, which were adopted bythe Commission in the afternoon of 16 February 1994, and the various versions ofthe Decision notified to the applicants in the authentic languages.

137.

    The applicants have not pleaded, and the Court has not been able to identify, anysubstantive difference between the versions C(94)321/2 and C(94)321/3 of theDecision, read together, as lodged by the Commission at the Registry of the Courtin the five authentic languages, and the versions of the Decision notified to theapplicants. In those circumstances, the fact that the Decision was adopted in theform of two documents, that is to say C(94)321/2 and C(94)321/3, the second ofwhich contained a number of amendments, some hand-written, to the first, isirrelevant, a fortiori since, in substance, those amendments relate only to thepayment of the fines by instalments and the decision not to impose fines of lessthan ECU 100. Likewise, the fact that in some language versions the documentsC(94)321/2 and C(94)321/3 have inconsistent page numbering or different characterfonts is irrelevant, since the intellectual component and the formal component ofthose documents, read in conjunction, correspond to the version of the Decisionnotified to the applicants (PVC judgment, paragraph 70).

138.

    The Court considers, on the contrary, that the differences between the documentsC(94)321/2 and C(94)321/3 are evidence of the efforts made by the Commissionnot to adopt the Decision formally until all of the amendments decided on by thecollege, in particular those concerning payment of the fines by instalments and thedecision not to impose fines of less than ECU 100, had been incorporated in eachof the language versions.

139.

    It also follows from the foregoing that the arguments based on a detailedcomparison between a number of documents in document files 57, 58 and 61 of theCommission's file and documents C(94)321/2 and C(94)321/3 are misplaced. Asthe Court has just found, the relevant comparison must be that between documentsC(94)321/2 and C(94)321/3, as produced by the Commission, and the versionnotified to the applicants, and not between documents C(94)321/2 and C(94)321/3,on the one hand, and certain drafts and other possibly earlier documents in theCommission's file, on the other. With regard, in particular, to document Bcontained in document file 61, the Court takes the view that it has not beenestablished that this document, which appears to be a working document,constitutes document C(94)321 or corresponds to that which was examined by theCommission during its morning meeting on 16 February 1994. At any rate,

document C(94)321 is irrelevant, since the definitive version of the Decisionadopted by the Commission consists of documents C(94)321/2 and C(94)321/3.

140.

    The fact that there may be some uncertainty as to the precise moment at which thetranslation of certain minor changes in the Italian version of the Decision was sentis equally irrelevant, particularly since the Italian version of the Decision was notaddressed to the applicant.

141.

    Finally, it has been established that document C(94)321/4 was merely a non-confidential version of version C(94)321 final, in which certain figures representingconfidential commercial information about those to whom it was addressed weredeleted for the purpose of notifying the Decision to the other recipients.

    

142.

    It follows that the applicants' second head of complaint is unfounded.

Lack of authentication of the Decision

143.

    With regard to the applicants' third head of complaint, to the effect that versionsC(94)321/2 and C(94)321/3 of the Decision were not properly authenticated inaccordance with the first paragraph of Article 16 of the 1993 Rules of Procedure,that provision read as follows:

'Instruments adopted by the Commission in the course of a meeting or by writtenprocedure shall be annexed, in the authentic language or languages, to the[minutes] of the meeting at which they were adopted or at which note was takenof their adoption. They shall be authenticated by the signatures of the Presidentand the Secretary-General on the first page of the minutes.‘

144.

    Similarly, the second paragraph of Article 9 of the 1993 Rules of Procedureprovided for the Commission's minutes to be 'authenticated by the signatures ofthe President and the Secretary-General‘.

145.

    It must first be pointed out that the first paragraph of Article 16 of the 1993 Rulesof Procedure did not define how instruments adopted in the course of a meetingwere to be 'annexed‘ to the minutes, in contrast, for example, to Article 16 of theCommission's Rules of Procedure, as amended by Decision 95/148/EC, ECSC,Euratom of 8 March 1995 (OJ 1995 L 97, p. 82), which provides that theinstruments in question must be attached to the minutes 'in such a way that theycannot be separated‘.

146.

    In this case, the minutes were received by the Court accompanied by documentsC(94)321/2 and C(94)321/3 in the authentic languages, in the same container whichCommission officials state to have received as such from the Commission'sSecretariat-General, following the Court's request of 11 March 1998. It can

therefore be assumed that those documents were 'annexed‘ to the minutes in thesense that they were placed with those minutes, without being physically attachedto them.

147.

    The purpose of the first paragraph of Article 16 of the 1993 Rules of Procedureis to ensure that the Commission has duly adopted the instrument in the formnotified to the party to whom it is addressed. In this case, the applicant has failedto establish that there was any substantive difference between the version of theDecision which was notified to it and the version which, according to theCommission, was 'annexed‘ to the minutes.

148.

    In those circumstances, and regard being had to the presumption of validity whichCommunity measures enjoy (Case T-35/92 John Deere v Commission [1994]ECR II-957, paragraph 31), the applicant has failed to establish that documentsC(94)321/2 and C(94)321/3 were not 'annexed‘ to the minutes within the meaningof Article 16 of the 1993 Rules of Procedure. Those documents must therefore beregarded as having been authenticated by the signatures of the President and theSecretary-General on the first page of those minutes.

149.

    As regards the fact that the minutes produced before the Court were themselvesa photocopy lacking the original signatures of the President and the Secretary-General, it must be pointed out that the first page of that document bears thestamp 'certified to be a true copy, Secretary-General Carlo Trojan‘ and that thisstamp bears the original signature of Mr Trojan, the titular Secretary-General ofthe Commission. The Court takes the view that this certification of authenticity bythe titular Secretary-General of the Commission proves that the original version ofthe minutes bears the original signatures of the President and Secretary-Generalof the Commission.

150.

    It follows that the third head of complaint is unfounded.

No indication as to the date on which the minutes were signed

151.

    With regard to the applicants' fourth head of complaint, to the effect that theminutes do not indicate the date on which they were signed by the President andSecretary-General of the Commission, suffice it to note that the first page of theminutes lodged with the Court bears the words 'Brussels, 23 February 1994‘ and'the present minutes were adopted by the Commission at its 1190th meeting heldin Brussels on 23 February 1994‘, followed by the signatures of the President andSecretary-General and the certification, by Mr Trojan, that the minutes are a truecopy of the original. It must therefore be held that the minutes were properlysigned by the President and Secretary-General on 23 February 1994, in accordancewith the 1993 Rules of Procedure.

152.

    The applicants' fourth head of complaint is therefore equally unfounded.

153.

    Finally, as regards the inaccurate statements made by Mr Van Miert at his pressbriefing held at noon on 16 February 1994, when he announced that theCommission had just adopted the Decision and mentioned certain fines, includingthat of the applicant, which did not correspond to those imposed by the Decision,those inaccuracies do not in themselves affect the regularity of the adoption of theDecision by the college of Commissioners, since the judicial review by the Courtcan relate only to the decision adopted by the Commission (see Case T-30/89 Hiltiv Commission [1991] ECR II-1439, paragraph 136). Similarly, it has not beenestablished that, by acting in this way, Mr Van Miert prejudged the Commission'sdeliberations or fettered its power to act.

154.

    It follows that the various arguments alleging infringements by the Commission,during the administrative procedure, of essential procedural requirements must berejected in their entirety, without its being necessary to order the measures ofinquiry which the applicants have requested.

C — Infringement of Article 65(1) of the Treaty

155.

    The applicant raises, in substance, three principal complaints in its numerous pleasin law and arguments alleging infringement of Article 65(1) of the Treaty. First,the applicant challenges the facts on the basis of which the Commission found theinfringements listed in Article 1 of the Decision (see, in particular, the sixth, tenthand thirteenth to fifteenth pleas in the application). Second, even if it is supposedthat those facts are proved, the applicant challenges their legal characterisation,arguing, in particular, that the Commission wrongly applied legal concepts derivedfrom Article 85(1) of the EC Treaty, thereby misconstruing what, in the applicant'sview, is the very different legal framework of the ECSC Treaty (see, in particular,the first, second and sixth to eleventh pleas in the application). Third, theapplicant argues that the conduct of which the undertakings are accused was knownto DG III, and indeed was encouraged or at least tolerated by it, so that Article65(1) of the Treaty was not infringed in this case, at least in the absence ofguidelines by the Commission on the interpretation and application of thatprovision (see, in particular, the third, fourth, sixth and eleventh pleas in theapplication). The applicant also alleges failures to provide a statement of reasons.

156.

    In view of the fact that the arguments raised by the applicant are interdependent,the Court considers that the various infringements of which the applicant is accusedand which it challenges should be examined in turn, first ascertaining whether thecorrectness of the facts constituting those infringements has been proved to therequired legal standard and then determining whether the legal characterisation ofthose facts by the Decision is sound in law. The question whether DG III's actionswere such as to deprive the facts so characterised of their nature as infringementswill be examined in Part D below.

Fixing of prices (target prices) within the Poutrelles Committee

1. The facts

157.

    Under Article 1 of the Decision, the Commission accused the applicant of havingengaged in price-fixing within the Poutrelles Committee. The period taken intoaccount for the purposes of the fine was 27 months, from 1 July 1988 (see recitals80 to 121, 223 to 243, 311 and 314 of the Decision).

158.

    While the applicant in this case does not deny that it took part in the meetings ofthe Poutrelles Committee described in the Decision up to July 1990, it submits, inparticular, that no 'agreements‘ were concluded there and that there were simplyexchanges of information between members as to their 'forecasts‘ on prices andgeneral market trends. It further submits that the agreements and concertedpractices of which it stands accused have not been sufficiently proved, since theprice increases confirmed resulted from parallel but independent conduct on thepart of the undertakings concerned.

—     Preliminary observations

159.

    Before examining individually the agreements and concerted practices detailed inrecitals 80 to 121 and 223 to 237 of the Decision, it should be observed first of allthat the evidence must be assessed in its entirety, taking into account all relevantcircumstances of fact (see the Opinion of Mr Vesterdorf, acting as AdvocateGeneral, in Case T-1/89 Rhône-Poulenc v Commission [1991] ECR II-867, II-869— joint Opinion in the Polypropylene judgments (T-2/89 [1991] ECR II-1087, T-3/89[1991] ECR II-1177, T-4/89 [1991] ECR II-1523, T-6/89 [1991] ECR II-1623, T-7/89[1991] ECR II-1711, T-8/89 [1991] ECR II-1833, and T-9/89 to T-15/89 [1992]ECR II-499, II-629, II-757, II-907, II-1021, II-1155 and II-1275).

160.

    It is common ground in this regard, first, that the Poutrelles Committee, in thesame way as the other 'products committees‘ of Eurofer, was set up by thatassociation during the period of manifest crisis with a view to better coordinate thesteel undertakings' conduct, particularly within the framework of the system of 'I‘and 'i‘ quotas and the Eurofer Agreements I to V (see paragraph 9 et seq. above). Once the crisis period had ended, that committee, which brought together the mainbeam producers in the Community and had a permanent secretariat, continued tomeet on a regular basis. In the present case, it is principally this system of regularmeetings which constitutes the reference framework for assessing the relevantevidence (see recitals 30, 36, 37 and 212 of the Decision).

161.

    Second, it is common ground that the applicant attended the meetings of thePoutrelles Committee held on 4 April 1987, 15 May 1987, 28 October 1987,25 November 1987, 3 May 1988, 19 July 1988, 18 October 1988, 15 November 1988,13 December 1988, 7 February 1989, 19 April 1989, 11 July 1989, 3 August 1989,

21 September 1989, 12 December 1989, 14 February 1990, 21 March 1990, 16 May1990, 10 July 1990, 11 September 1990, 9 October 1990 and 4 December 1990(recital 38(c) of the Decision). The documents cited in recitals 95 and 96 of theDecision indicate that the applicant also attended the meeting of 10 January 1989. Attendance by an undertaking at meetings involving anti-competitive activitiessuffices to establish its participation in those activities, in the absence of proofcapable of establishing the contrary (see Case T-14/89 Montedipe v Commission[1992] ECR II-1155, paragraphs 129 and 144). Although the applicant tenderedapologies for being unable to attend the meeting of 6 June 1989, its opinion on theposition of the United Kingdom market was made known at the meeting and itreceived a copy of the minutes (documents nos 154 to 170 on the file).

162.

    Third, it is common ground that the decisions adopted during those meetings werenotified to the Eurofer/Scandinavia group, which operated in the same way as thePoutrelles Committee and brought together the principal Community andScandinavian producers (see, in particular, recitals 81, 84, 86 to 88, 93, 187, 189,191 and 192 of the Decision). It is also not contested that the applicant took part,between 5 February 1986 and 31 October 1990, in at least 17 of the 20 meetingsof the Eurofer/Scandinavia group mentioned in recital 178 of the Decision (seerecital 181 of the Decision).

163.

    Fourth, with more particular regard to the contention that this case involved, not'agreements on prices‘, but rather 'exchanges of information on expected prices‘,while it is true that the minutes concerned frequently use expressions such as price'estimates‘ or 'forecasts‘, account must be taken, when assessing the evidence asa whole, of the following matters:

(a)    several price tables (for instance, those indicating the prices fixed at themeetings of 25 July 1988, 18 October 1988, 10 January 1989 and 19 April1989) were drawn up relatively long before the quarter concerned andcontain very detailed information relating, inter alia, to the differentcategories of products, the various countries, the exact amounts of envisagedprice increases and discounts. Tables of this kind cannot be regarded asreflecting simply the 'estimates‘ of undertakings as to market pricedevelopments;

(b)    in several cases, the wording of the minutes does not support the applicant'sargument: see, for example, expressions such as 'the price increases resultin the following level of prices‘ (meeting of 18 October 1988); 'thefollowing price levels are anticipated for the second quarter of 1989. Theseprices represent vis-à-vis the first quarter of 1989 the following increases: [avery detailed table follows]‘ (meeting of 10 January 1989); 'the forecasts forthe second quarter of 1989 are carried over to the third quarter of 1989,that is to say, the following levels: [a very detailed table follows]‘ (meetingof 19 April 1989); 'the prices anticipated and obtained for the third quarter

of 1989 are carried over in that context to the fourth quarter of 1989‘(meeting of 11 July 1989);

(c)    the minutes also contain numerous references to the fact that the prices'envisaged‘ for the quarter in question had been 'obtained‘, or 'accepted‘by customers (see recitals 94, 95, 97 to 99, 101, 102 and 118 of theDecision);

(d)    the minutes of the meetings of the Poutrelles Committee must be read inconjunction with those of the meetings of the Eurofer/Scandinavia group,which served in particular to notify Scandinavian producers of the decisionstaken during the previous meeting of the Poutrelles Committee (see recital177 et seq. of the Decision). It is very clear from the minutes of theEurofer/Scandinavia group meetings that pricing agreements were involved(see below);

(e)    the evidence adduced by the Commission comprises not only the minutesof the Poutrelles Committee and the Eurofer/Scandinavia group but alsoother documents from the undertakings themselves, such as the telex of22 September 1988 from TradeARBED to Thyssen, the internal Peine-Salzgitter memorandum of 13 January 1989, the TradeARBED note of31 January 1990 for the meeting of the Eurofer/Scandinavia group, theletters of 6 November 1989 and 19 December 1989 from Peine-Salzgitter toUnimétal, the letter of 7 February 1990 from TradeARBED to Unimétal,and the applicant's documents referred to in the Decision, in particular atrecitals 96, 100, 111, 112, 114, 115 and 117;

(f)    the applicant has not denied that a number of agreements to harmonise theprices of extras were concluded (see below). Having regard to the closerelationship between the basic prices and the extras, it is not plausible thatthe participants would have concluded agreements on the one and not onthe other;

(g)    the applicant has not challenged the Commission's allegation in recital 37of the Decision that the final versions of the minutes of the PoutrellesCommittee were drafted with some circumspection.

164.

    It is in the light of these general observations that each of the price-fixingagreements or concerted practices of which the applicant stands accused must beexamined.

—     Agreements allegedly concluded in 1986 and 1987

165.

    In recital 223 of the Decision, the Commission finds, referring to recitals 80 to 86,that 'agreements on prices were reached on several occasions in 1986 and 1987‘.

166.

    The Court considers that the Commission's reference in recital 223 of the Decisionto agreements reached 'on several occasions‘ in 1986 and 1987 is too imprecise tobe construed as charging the applicant with being a party to those agreements.

167.

    This finding is still valid even if it is accepted that recitals 80 to 86 of the Decision,to which recital 223 refers, tend to establish the existence of an agreementconcluded in 1986 (recitals 80 and 81) and of two others concluded in 1987 (recitals82 to 86).

168.

    Recital 223 of the Decision does not indicate any factors which could identify thosealleged agreements, a fact which justifies the conclusion that these merelyconstitute, in the Commission's view, the historical framework for the agreementsdescribed, this time in detail, in recitals 224 to 237 of the Decision.

—     Agreement on prices in Germany and France allegedly concluded prior to2 February 1988

169.

    In recital 224 of the Decision, the Commission found that, at a meeting on anunspecified date prior to 2 February 1988, an agreement was reached by thePoutrelles Committee to increase prices in Germany and France. The Commissionbased this finding on an extract from the minutes of the 2 February 1988 meetingof the Eurofer/Scandinavia group, which state as follows: 'It was decided toincrease prices on 1 April as follows: on the German market by DM 20 forcategories 1, 2a, 2b2 and 2b3, and by DM 10 for category 2b1; on the Frenchmarket, by FF 50 for all categories except 2c.‘ (recital 87, documents 674 to 678).

170.

    The Court considers that it follows from their actual wording that the minutes ofthe 2 February 1988 meeting of the Eurofer/Scandinavia group record anagreement to increase prices on the German and French markets. The consensualnature of those price increases is evidenced, with regard to the term 'décision‘ (inFrench), by the use of the singular and by the uniform character of the increaseson each of the markets in question. However, since it has not been established thatthe applicant attended that meeting, the Court considers that its participation inthat agreement has not been proved.

—     Target prices allegedly fixed prior to 25 July 1988

171.

    In recital 224 of the Decision, the Commission also found that 'Further targetprices (for the fourth quarter of 1988) were agreed prior to 25 July 1988‘. It basedits finding on a table attached to the minutes of the Eurofer/Scandinavia meetingon 25 July 1988 indicating the 'market prices for the fourth quarter of 1988‘,broken down according to category, for Germany, France and the Belgian-Luxembourg market (recital 88 of the Decision).

172.

    The Court observes first that it is the table (document no 2507) annexed, accordingto the Commission, to the minutes of the meeting of 25 July 1988 of theEurofer/Scandinavia group which is the incriminating document and not thoseminutes themselves.

173.

    The Court finds that the table in question, which was drawn up on 25 July 1988 orearlier, refers to the prices applicable during the final quarter of 1988. It was thusdrawn up a relatively long time before the reference quarter and gives exact priceson a country-by-country basis and according to product category. From this theCourt infers that the table in question relates to detailed prices which the partiesjointly intended to apply and is not simply an account of actual or forecast marketprices.

174.

    This document, understood in its factual context, must also be regarded as bringinginformation relating to such an agreement to the knowledge of theEurofer/Scandinavia group. Similar information was regularly communicated to themembers of that group, several times, at least, in the form of a table annexed tothe minutes of the meeting in question.

175.

    The existence of the facts alleged by the Commission has therefore been proved.

—     Target prices allegedly fixed on 18 October 1988

176.

    In recitals 225 and 226 of the Decision, the Commission finds that an agreementon the target prices to be achieved during the first quarter of 1989 was concludedduring the meeting of the Poutrelles Committee held on 18 October 1988. TheCommission based its finding in particular on the following evidence:

—    the minutes of that meeting, which mention inter alia the price increases'estimated‘ at between DM 25 and DM 40 for the Federal Republic ofGermany, between FF 50 and FF 100 for France, and between BFR 200and BFR 800 for Benelux. The prices in which those increases 'result‘ areset out in a table, broken down on a country-by-country basis and accordingto product categories and customers (recital 89 of the Decision);

—    the table used to draw up the target prices for the fourth quarter of 1988(document no 2507, annexed to the minutes of the meeting of theEurofer/Scandinavia group of 25 July 1988, recital 90 of the Decision);

—    a telex which Thyssen sent to TradeARBED on 22 September 1988 (recital91 of the Decision);

—    the minutes of the meeting of the Eurofer/Scandinavia group held on3 November 1988 (documents no 2488 to no 2493), according to which

    'New price increases are envisaged for the first quarter of 1989; theseincreases are also expected by traders. They will lead to increases in theorder of between DM 25 and DM 40 in Germany, FF 50 to FF 100 inFrance and BFR 200 to BFR 800 in Benelux‘;

—    the fact that 'agreements were reached to increase prices by harmonisingand increasing extras‘.

177.

    The Court considers that the factors set out in recitals 225 and 226 of the Decisionconstitute a body of consistent evidence capable of proving the acts charged.

178.

    In particular, the minutes of the meeting of the Poutrelles Committee of18 October 1988, which the applicant attended, contain detailed prices, brokendown on a product-by-product and market-by-market basis, for the variouscategories of customers, and use the expression 'the price increases result in thefollowing level of prices‘. Likewise, the figures cited correspond to those indicatedin the minutes of the Eurofer/Scandinavia group meeting of 3 November 1988(recital 200 of the Decision), which the applicant also attended, which proves thatthe decision of the Poutrelles Committee of 18 October 1988 was also notified tothe Eurofer/Scandinavia group.

179.

    Moreover, Thyssen's telex of 22 September 1988 to TradeARBED constitutesfurther evidence of the consensual nature of the prices referred to in the minutesof the meeting of 18 October 1988. That telex reads as follows:

'Basically, the most helpful timing of the discussion would be after theEurofer/Scandinavia meeting. However, since this is rather late, we should in myview notify our friends of our broad intention for the EC and plead for parallelaction, i.e. increases for the Scandinavian programme of:

    Sweden        SKR 100

    Norway        NKR 100

    Finland        DM 40

The decision about category 2c can then be taken on 29 September.‘

180.

    So far as the telex raises the matter of 'intention for the EC‘, this was an intentioncommon to several undertakings. The person who sent the telex wasrecommending, in regard to the 'Scandinavian programme‘, 'parallel action‘between the average increase envisaged for the Community and that which thoseattending the next meeting of the Eurofer/Scandinavia group had to decide bymutual agreement (this latter decision was in fact adopted on 3 November 1988). Furthermore, a forthcoming 'decision‘ was proposed to the recipient of the telexwith regard to prices in the category 2c, which indicates that these were pricesadopted by common agreement.

181.

    The Commission was equally entitled to form the view, at recital 225, seventhindent, of the Decision, that, since the undertakings meeting within the PoutrellesCommittee were agreeing to harmonise extras, it would have been surprising if theyhad let the free play of competition decide on the amount of the basic prices (seebelow). It was precisely at the meeting of 18 October 1988 that a proposal byUsinor Sacilor for the harmonisation of quality extras was examined, before beingaccepted in principle at the meeting of 15 November 1988 (recital 122 of theDecision).

182.

    Furthermore, in accordance with the reasoning set out in recital 226 of theDecision, the at least 'morally‘ binding nature of the agreements alleged by theCommission is proved by the fact that none of those who attended the meetingindicated its intention not to apply the proposed prices (see Case T-7/89 HerculesChemicals v Commission [1991] ECR II-1711, paragraph 232) and by theundertakings' subsequent declarations that the prices in question had been acceptedby customers (see recitals 94 and 95 of the Decision).

183.

    The Commission has thus proved the acts charged regarding the target-priceagreement concluded on 18 October 1988.

—     Target prices allegedly set at the meeting on 10 January 1989

184.

    According to recital 227 of the Decision, the Poutrelles Committee agreed, at itsmeeting on 10 January 1989, on target prices for deliveries to France, Germany, theBenelux countries and Italy for the second quarter of 1989.

185.

    The Commission relies on the minutes of that meeting (see recital 95 of theDecision), which set out in detail the increases for the reference quarter accordingto markets and categories. Those minutes then indicate the 'expected price levels‘resulting from those increases. The Commission also relies on an undated file noteof the applicant on the results of that meeting and on an internal Peine-Salzgittermemo of 13 January 1989 (recital 96 of the Decision).

186.

    The Court holds that the documents cited in recitals 95 and 96 of the Decisionprove the facts alleged.

187.

    The parties again employed the technique already adopted at the meeting on18 October 1988 in setting down precisely and in detail, in the minutes for10 January 1989, the increases and the resulting new prices, for each market andeach product and customer category. The Court considers that such indicationspresuppose an agreement on the prices in question. That conclusion is confirmedby the other two documents which the Commission cites in recital 96 of theDecision, that is to say, the applicant's undated note (documents no 2001 tono 2003) and the Peine-Salzgitter memo of 13 January 1989 (documents no 3051and no 3052). The applicant's note gives prices for France, Germany and the

Benelux countries which are identical to those in the minutes of the meeting heldon 10 January 1989. It goes on to discuss 'price intentions‘, which, in view of theuniform nature of the increases and the new prices resulting therefrom, can onlymean intentions common to the members of the Poutrelles Committee. Accordingto the Peine-Salzgitter memo of 13 January 1989, the increases had already been'envisaged‘ previously and had been 'fleshed out‘ during the meeting. Afteroutlining the increases concerning Germany, that memo continues: 'Selective priceincreases were also decided on for the different categories in the other principalCommunity countries ...‘. That formulation also indicates that there was anagreement. Contrary to what the applicant asserts, it cannot, under thecircumstances, have amounted to a mere exchange of information on prices.

188.

    That conclusion is not altered by the fact that the new prices for Italy indicated inthe applicant's undated note exceeded by LIT 20 000 per tonne those set out in theminutes of the meeting in question. This divergence in the applicant's note, whichrefers only to the new prices for Italy, must be attributed to a simple error whenthe new prices in question were being written down.

—     Target prices for the Italian and Spanish markets allegedly set at themeeting on 7 February 1989

189.

    According to recital 227 of the Decision, the Poutrelles Committee adopted targetprices for the Italian and Spanish markets at its meeting on 7 February 1989.

190.

    The Commission relies on the minutes of that meeting (see recital 98 of theDecision), from which it appears that prices for two categories of beams in Italyand prices for Spain were fixed and supplemented the price information containedin the minutes of the meeting of 10 January 1989 (see recital 95 of the Decision).

191.

    The Court finds that, despite the wording of the minutes of the meeting of7 February 1989 (documents no 97 to no 106), describing the indications inquestion as 'supplements to the price forecasts for the second quarter of 1989‘,several factors demonstrate that the prices in question were in fact agreed prices.

192.

    First, the prices which those indications were considered to supplement had alreadybeen fixed by joint agreement at the meeting of 10 January 1989 (see above). Inthe course of the meeting held on 7 February 1989, those attending also stated thatthe latter prices had been obtained or would be obtained without any difficulties(see recital 98 of the Decision).

193.

    Second, the minutes indicate that the new price level for category 2c in Italy'preserves a ”harmony” between the prices charged on all of the Europeanmarkets and takes into account the competition from reconstituted welded metalframes (rwmf)‘. With regard to the Spanish market, it is pointed out that the

'prices forecast‘ for that quarter would be 'carried forward‘ to the next quarter'in order to consolidate the levels attained‘. It is clear from that wording that aconsensus existed among the undertakings to attain, through the application ofthese prices, a number of common objectives. Those undertakings were thusnecessarily in agreement that those prices should be applied.

194.

    The facts alleged in the second paragraph of recital 227 of the Decision have thusbeen proved.

—     Target prices allegedly agreed on at the meeting of 19 April 1989

195.

    According to recital 228 of the Decision, target prices to be applied in the thirdquarter of 1989 on the markets of Germany, France, Belgium, Luxembourg, Italyand Spain, which were practically identical to those of the previous quarter, wereagreed at the meeting of the Poutrelles Committee held on 19 April 1989.

196.

    The Commission bases itself on the minutes of that meeting, which, after indicatingthat the forecast prices had been obtained in Germany, France and Italy, gave theprices for the coming quarter (recital 99 of the Decision).

197.

    The Court takes the view that the Commission has proved that the prices put inthe minutes of 19 April 1989 (documents nos 125 to 145) were the subject of anagreement.

198.

    First, inasmuch as the relevant passage in those minutes indicates that the'forecasts for the second quarter of 1989 are carried forward to the third quarterof 1989‘, these 'forecasts‘ were in fact the result of an agreement within thePoutrelles Committee which the undertakings in question had reached during themeetings held on 10 January 1989 and 7 February 1989 (see above). The'carrying-forward‘ of those 'forecasts‘ was also in the nature of an agreement,aimed this time at maintaining the former price level. This conclusion iscorroborated by the finding, contained in those minutes, that the 'prices forecast‘for the second quarter or the 'forecasts‘ concerning that quarter had been'accepted ... by customers‘ (document no 126). The reference to the Germanmarket, which mentions that the corresponding 'forecasts‘ had been 'achieved‘,must be interpreted to the same effect.

199.

    Second, the prices for the forthcoming quarter were set out, in the minutes of themeeting of 19 April 1989, in the same precise and detailed manner as the pricesfor the fourth quarter of 1988 and those for the first two quarters of 1989 in theprevious minutes. Such detailed presentations cannot be construed as reflectingmerely forecasts or estimates.

—     Fixing of the prices applicable in the United Kingdom from June 1989

200.

    In recitals 229 and 230 of the Decision, the Commission finds that there was aconcerted practice of fixing the prices applicable in the United Kingdom from June1989, which was initiated by the applicant and accepted by its competitors.

201.

    In support of this argument, the Commission cites an internal note of the applicantdated 24 April 1989 (see recital 100 of the Decision) and the information,contained in the minutes of the Poutrelles Committee meetings of 6 June 1989 and11 July 1989, that, according to the applicant, the price increase had been acceptedby customers (see recitals 101 and 102 of the Decision).

202.

    The Court finds that the Commission's allegation that the applicant announced tothe other undertakings on 19 April 1989 that it would be increasing its prices in theUnited Kingdom and called on them to follow that increase (recital 229 of theDecision) is proved by the memo of 24 April 1989 (documents nos 1969 and 1970)cited in recital 100 of the Decision.

203.

    The Court also finds that the Commission has proved its allegation that theapplicant and its competitors had acted in concert in regard to prices (recital 230of the Decision). The Commission rightly explained, in recital 229 of the Decision,that the cooperation within the context of which the disputed conduct took placehad already resulted in a number of price-fixing agreements for continental ECSCmarkets to which the applicant had been a party. In those circumstances, theapplicant's action could not be regarded as unilateral conduct vis-à-vis competitorswith which it did not have any cooperative links.

204.

    Once the applicant had accepted, at numerous previous meetings of the PoutrellesCommittee, to bind itself, at least 'morally‘, to the continental prices, it couldreasonably expect its competitors to comply with its call that they respect its newprices in the United Kingdom when determining their own conduct on that market.

205.

    Finally, the Court finds that the Commission has proved that the undertakings didin fact comply with the applicant's demand (recitals 229 and 230 of the Decision). The applicant has not, in this regard, contested either the fact that its priceincreases had been accepted by the United Kingdom market or the Commission'sassertion that, at the time, prices in the United Kingdom were considerably higherthan on the continental markets of the ECSC (recital 229 of the Decision). Giventhat, in those circumstances, offers at prices corresponding to the continental levelwould have prevented local customers from accepting the applicant's new prices,the fact that its price increases were accepted 'without difficulties‘ suffices toestablish, in the absence of evidence to the contrary, that the other undertakingsdid not stand in the way of the applicant's obtaining the price increases in question.

206.

    It must therefore be held that the facts underlying the reasoning in recitals 229 and230 of the Decision have been proved.

—    The agreement allegedly reached at the meeting of 11 July 1989 to carryforward to the fourth quarter of 1989, on the German market, the targetprices for the third quarter of that year

207.

    In recital 231 of the Decision, the Commission infers from the minutes of themeeting of the Poutrelles Committee of 11 July 1989 (see recital 102 of theDecision) that it was agreed at that time that the same target prices as in the thirdquarter of 1989 should be applied in the fourth quarter of 1989 in Germany.

208.

    The Court finds that the minutes of the meeting of 11 July 1989 (documents nos182 to 188) sufficiently establish the Commission's contentions concerning anagreement to maintain prices on the German market during the fourth quarter of1989.

209.

    The relevant passage in those minutes, under the heading 'Price trend forecasts forthe fourth quarter of 1989‘, provides as follows:

'On the German side, it is envisaged, in so far as an increase of dimension andquality extras in the region of DM 20 to DM 25 per tonne is scheduled for1 October 1989, not to increase basic prices. The prices forecast and obtained forthe third quarter of 1989 are in that context carried over to the fourth quarter of1989. An exchange of information on the other Community markets will be madeduring the Poutrelles Committee's next meeting.‘

210.

    It follows from the structure of that paragraph that only the prices of the othermarkets were to be the subject of a subsequent 'exchange of information‘, whilethe prices on the German market were 'carried over‘ by common agreement atthe meeting in question.

211.

    In particular, the announcement by the German producers must be considered inthe context of the regular meetings of the Poutrelles Committee and the otheragreements the existence of which the Court has already confirmed above. Thus,the prices 'carried over‘ had themselves been the subject of an agreement withinthe Poutrelles Committee on 19 April 1989 (see paragraph 195 et seq. above). Itthus appears that the measures adopted in regard to the German market were inline with the practice of previous meetings in fixing the successive quarterly pricesfor the principal Community markets.

212.

    Moreover, the Court holds that an agreement not to increase prices may constitutea price-fixing agreement within the meaning of Article 65(1) of the Treaty.

—    The decision allegedly adopted at the meeting of 12 December 1989concerning the target prices to be achieved in the first quarter of 1990

213.

    According to recital 232 of the Decision, the Poutrelles Committee decided, at itsmeeting on 12 December 1989, to apply in the first quarter of 1990 the same targetprices as those applied in the fourth quarter of 1989.

214.

    In this connection, the Commission relies on a TradeARBED representative'sspeaking note for the Eurofer/Scandinavia group meeting on 31 January 1990(documents nos 2414 to 2416, see recital 107 of the Decision).

215.

    The Court finds that this TradeARBED note (document no 2414) proves theexistence of the alleged agreement concerning the first quarter of 1990. It is notdenied that this document served as the basis for a TradeARBED representative'saddress at the Eurofer/Scandinavia group meeting on 31 January 1990. It followsthat the information which it contains, to the effect that 'prices for the fourthquarter of 1989 have in principle been maintained‘, must be construed as referring,as usual, to the agreements resulting from cooperation within the PoutrellesCommittee.

216.

    The possibility that the note in question refers simply to an appeal for moderationmade to producers during the meeting of 12 December 1989 is gainsaid not onlyby the manner in which the maintenance of prices is alluded to there ('Prices ...have in principle been maintained ...‘) but also by the fact that the 'maintained‘prices are described there as 'programmed prices‘ and that the practice by whichsome undertakings 'undercut‘ those prices is regarded as 'regrettable‘.

217.

    So far as concerns the divergences which surfaced during that meeting, these didnot relate to the level of the prices for the forthcoming quarter but solely to thequantities delivered by the applicant and a proposal to share markets, apparentlysubmitted by Unimétal. Finally, the fact that existing prices were simply maintainedand not increased does not argue against the existence of an agreement, no morethan does the fact that the new prices may not have been fully respected (seerecital 108 of the Decision).

—    Fixing of prices for category 2c on the French market, as revealed by theannouncement of Unimétal during the meeting on 14 February 1990

218.

    In recital 233 of the Decision, the Commission refers to the announcement byUnimétal, at the meeting of 14 February 1990, of its intention to increase the priceof category 2c beams on the French market. According to the Commission, whichrefers to the facts set out in recitals 109 and 110 of the Decision, this was not aunilateral decision on the part of Unimétal but rather an agreement between theundertakings concerned.

219.

    The Court finds that the facts alleged against the applicant are proved by theevidence set out in recitals 233, 109 and 110 of the Decision, considered in thecontext of the meetings of the Poutrelles Committee.

220.

    It appears from that evidence that Unimétal had been requested by two of itscompetitors, Peine-Salzgitter and TradeARBED, to raise its prices. Given adifference between prices in France and those in Germany, it was necessary,according to those undertakings, to 'prevent distortions in the flux of trade‘ (seethe letter of 6 November 1989 sent by the chairman of the Poutrelles Committeeto Unimétal, recital 109 of the Decision, documents nos 3009 to 3011) or toprevent 'distortion‘ of 'the price structure in Germany‘ (fax of 7 February 1990from TradeARBED to Unimétal, recital 110 of the Decision, document no 2413).

221.

    Since that request was accepted by Unimétal, at least up to a certain amount, theresultant price increase was consensual in nature.

222.

    Moreover, the price increase in the category under consideration was announcedduring the meeting of 14 February 1990, in the presence not only of TradeARBEDand Peine-Salzgitter but also of the other undertakings cooperating within thePoutrelles Committee, including the applicant.

223.

    In addition, the increase in question could not be explained on economic groundssince, in the aforementioned fax, TradeARBED had acknowledged that 'conditionsdo not favour a price increase‘. In those circumstances, maintenance of the priceannounced required that all the other undertakings concerned would apply it.

224.

    That detailed evidence, put in its context, proves that, by its announcement,Unimétal intended to ensure that it would have the support of all the undertakingswhich attended the meeting of 14 February 1990, including the applicant, in orderto prevent the charging of lower prices from jeopardising the success of theenvisaged 'harmonisation‘. The fact that similar agreements had been concludedat earlier meetings, for the principal Community markets, allowed Unimétal, andmore generally all the undertakings which regarded this increase as being in theirinterest, to assume that this call would be followed.

—    Fixing of the prices applicable in the United Kingdom in the second quarterof 1990

225.

    It follows from the reasoning set out in recitals 220 and 234 to 236 of the Decisionthat the Commission charges the undertakings in question, including the applicant,with having acted in concert, for the second quarter of 1990, in regard to the pricesto be applied in the United Kingdom and with having applied the prices whichwere the subject of that concerted action.

226.

    In support of its reasoning, the Commission first of all argues that the applicantinformed the recipients of its fax of 14 February 1990 of the prices which it did notconsider to be 'disruptive‘ for the United Kingdom market (recital 234 of theDecision) and which it was therefore prepared to tolerate (recital 112, in fine, ofthe Decision). The Court finds that this claim is proved by a combined reading ofthe handwritten comments on the original of that fax of 14 February 1990(document no 1887) and the applicant's internal memo of 20 February 1990(document no 1908). Those comments must be understood as revealing thetelephone information promised to the recipients of the fax. They refer to'interpenetration allowances‘, that is to say prices which would not result in a flowof imports considered to be excessive. In that memo, the author expressly statesthat he had informed the Unimétal representative of the prices 'which are notjudged by us to be disruptive‘.

227.

    The Commission alleges, second, that the applicant's announcement correspondedto a 'concerted practice‘ (recital 235 of the Decision; see also recital 220), which,in its view, means that it was made in a context allowing the applicant to assumethat the other undertakings would respect the prices announced. The Court findsthat this allegation is proved by the Commission's findings. The announcementformed part of 'the constant dialogue between this company and its competitorsin other Member States‘ (recital 235 of the Decision). As has already been found(paragraph 204 above), the applicant's participation in the earlier agreementsconcluded within the Poutrelles Committee allowed it to expect that its competitorswould demonstrate a certain amount of solidarity in return. That conclusion iscorroborated, at least so far as concerns the German undertakings involved, namelyPeine-Salzgitter, Thyssen and Saarstahl, by the table (document no 1864) referredto in recitals 235 and 55 of the Decision, which confirms that those undertakingsand the applicant were making efforts to maintain certain relations between thetrade flows between the two countries in question and that each of the parties hadthus accepted, in light of the circumstances, to demonstrate solidarity in theinterests of the other party.

228.

    The Commission alleges, third, that the undertakings concerned did in fact increasetheir prices as suggested by the applicant (recital 236 of the Decision). TheCommission argues that this is proved by the fact that, although the applicantinitially criticised offers below its price list, it raised its prices a few months laterfollowing the meeting of 16 May 1990 (see recital 115 of the Decision). In theabsence of evidence to the contrary, the Court finds that this fact, which is notcontested, proves that the applicant largely succeeded in ensuring that itscompetitors respected its prices. In view of the difference in the price levelsbetween the continent and the United Kingdom, the applicant could not, in May1990, seriously have envisaged any increase without being confident that continentalproducers would show solidarity.

229.

    It follows that the factual contentions underlying the reasoning set out in recitals234 to 236 of the Decision have been proved.

—    Fixing of the prices applicable in the United Kingdom in the third quarterof 1990

230.

    It follows from the reasoning set out in recital 237 of the Decision, read in the lightof recital 220 (first and third paragraphs), that the Commission charges theundertakings with having colluded on the prices to be charged in the UnitedKingdom for the third quarter of 1990 and having applied the prices which werethe subject of that collusion.

231.

    Inasmuch as the Commission alleges, first, that the applicant notified itscompetitors of its new prices and asked them to respect them, the Court takes theview that these two matters are evidenced by the applicant's fax of 7 June 1990(see recital 115 of the Decision, document no 1798). The applicant, moreover,repeated that request during the Poutrelles Committee meeting of 10 July 1990(see recital 117 of the Decision, documents nos 1964 to 1966). In regard to thesepoints of fact, the Commission's allegation is thus proved.

232.

    In so far as the Commission concludes, second, that there was concerted action, theCourt has already found that, in view of the previous activities of the PoutrellesCommittee, the applicant could reasonably expect that its competitors would showsolidarity on the British market with regard to prices, and in particular that itsrequest that they comply with its new prices, made during a meeting with itscompetitors, would be taken into account by those undertakings when they weredeciding how they would conduct themselves on that market. The Commission hasthus proved the concerted action which it alleges.

233.

    With regard, third, to compliance by the other undertakings with the pricesannounced by the applicant, such compliance is adequately proved by the referencein the minutes of the meeting of 11 September 1990 (recital 118 of the Decision,documents nos 1666 to 1679) to the fact that the increase in the applicant's pricelist had been accepted by British customers. If the other undertakings had notrespected, in large measure, the new prices announced by the applicant, it isscarcely conceivable that such an increase would have been accepted by customers. This conclusion is not shaken by the fact that, before deciding to follow theapplicant's guidance, its competitors had initially applied lower prices (see recital117 of the Decision). The fact that, during this period, the conduct ofTradeARBED was presented by the applicant as being in breach of an agreementbetween those two companies likewise does not affect the Court's findings.

234.

    It follows that the factual contentions underlying the reasoning in recital 237 of theDecision have been proved.

235.

    It follows from all of the foregoing that the facts alleged in support of thearguments in recitals 224 to 237 of the Decision concerning the conclusion ofagreements on prices and conduct which the Commission there characterises as'concerted practices‘ have been proved by the documents on which it relies,subject to what is stated in paragraph 170 above.

—     The expert economic report submitted by the applicants

236.

    The Court finds that this conclusion is not invalidated by the analysis of pricetrends presented at the administrative hearing by the expert Mr Bishop (pp. 113to 127 of the minutes of the hearing). According to that analysis, the Commission'sview that the undertakings concluded agreements on pricing is contradicted by thefact that the market prices were no higher than those which could be expectedunder normal conditions of competition. Thus, between 1987 and 1991, real pricesfor beams within the Community were at a historically low level, with the exceptionof 1989, in which year, however, they were not higher than those applied in 1985,when demand had reached its lowest level. This price trend, it is argued, cannotbe explained solely by the increases in productivity achieved at that period.

237.

    In so far as the applicants seek, by means of that expert report, to challenge theexistence of the agreements alleged in recitals 225 to 237 of the Decision, the Courthas already found that the facts on the basis of which the Commission found thatthe agreements and concerted practices in question had been entered into areproved by the documents in question, read in the light of the general context ofcooperation which existed at that time within the Poutrelles Committee.

238.

    The general price trend for beams within the Community cannot, by its nature, callin question the validity of those findings of fact. Moreover, the expert himselfacknowledged, during the hearing, that the purpose of his analysis was not tocomment on the statement of objections but simply to reply to the questionwhether the steps taken by the undertakings had proved successful (see p. 127 ofthe minutes of the hearing).

—    Conclusions

239.

    It follows from the foregoing considerations that the applicant's arguments must berejected in so far as they challenge the findings of fact set out in recitals 225 to 237of the Decision. It also follows that the Commission has provided adequatereasons showing both the existence of the agreements and concerted practices withwhich the applicant is charged and the applicant's individual involvement in thoseagreements and concerted practices and that the Commission has provided asufficient description of the infringements in question, subject to what is stated inparagraph 170 above.

2. Legal analysis of the facts

240.

    At this stage in the reasoning, it is appropriate to consider the Commission's legalanalysis of the conduct alleged in recitals 224 to 237 of the Decision in relation to:(a) the categories of agreements covered by Article 65(1) of the Treaty; (b) thepurpose or effect of such conduct; and (c) the concept of normal competition,within the meaning of that provision.

(a)    Analysis of the incriminated conduct in relation to the categories ofagreements covered by Article 65(1) of the Treaty

241.

    Referring to paragraph 14 of the judgment of the Court of Justice in Case 172/80Züchner v Bayerische Vereinsbank [1981] ECR 2021, paragraph 18 of the judgmentof the Court of Justice in Case 42/84 Remia and Others v Commission [1985]ECR 2545 and the Opinion of Judge Vesterdorf, acting as Advocate General, inthe Polypropylene cases, [1991] ECR II-867 at II-940 et seq., the applicant maintainsthat no 'concerted practice‘ within the meaning of Article 85 of the EC Treaty canbe held to exist where the action by the undertakings concerned, be it unilateral orjoint action, has not created a state of competition which differs from that whichwould exist but for such action. It is impossible to dissociate a 'concerted practice‘from the actual effects it has had, and, in the absence of such effects, there can beno 'concerted practice‘.

242.

    In the applicant's view, that case-law, developed in the context of Article 85 of theEC Treaty, can be applied a fortiori to the notion of 'concerted practice‘ within themeaning of Article 65 of the ECSC Treaty. Consequently, it argues, if it were tobe found that the state of competition on the market where the conduct wasalleged to have taken place was not essentially different from the state ofcompetition as it had previously existed, then that conduct could not amount to a'concerted practice‘ within the meaning of Article 65 of the ECSC Treaty.

243.

    The applicant goes on to state that this was the position in this case, pursuant tothe provisions of Article 60 of the Treaty. Referring to the threefold objective ofthe rule on the publication of prices in Article 60 of the ECSC Treaty, namely: (a)as far as possible to prevent prohibited practices; (b) to enable customers to learnexactly what prices will be charged and be able themselves to check whether anydiscrimination has taken place; and (c) to enable undertakings to have an accurateknowledge of the prices of their competitors, so as to enable them to align theirprices, the applicant submits that action by an undertaking which is fully inconformity with Article 60 of the ECSC Treaty cannot be regarded as a 'concertedpractice‘ prohibited by Article 65 thereof. In its view, that was the position here,even though the information on the prices in question related not to officialpublished list prices but to market prices.

244.

    The applicant adds that, under those circumstances, none of the three elementsrelied upon by the Commission in recitals 80 et seq. and 223 et seq. of theDecision, in support of its finding that the applicant had engaged in concertedpractices regarding the prices to be charged on the United Kingdom marketbetween February 1989 and June 1990, is relevant.

245.

    The first element relied on by the Commission, namely the communication by theapplicant of its intended price increases, could not, the applicant submits, have ananti-competitive effect, in view of the obligation to comply with the principle oftransparency laid down in Article 60 of the Treaty and the possibility of alignmentunder that provision. In particular, it argues that the fact that competitors mayhave become aware of the applicant's intentions regarding prices could not havehad an effect on their behaviour in the United Kingdom, given that the continentalECSC producers did not publish price lists in inch sizes and would therefore havehad to make all their sales by aligning onto the prices applied by the applicant orthird country suppliers.

246.

    In relation to the second element, namely the requests made by the applicant tothe continental producers that its prices be followed in their sales to the UnitedKingdom (see recitals 100, 102, 115 and 117 of the Decision), they do not, in theabsence of evidence to suggest that the requests could or did have an effect on themarket, amount to concerted practices. In any event, the evidence indicates thatthe continental ECSC producers did not follow those prices (see recitals 113 and117 of the Decision).

247.

    As regards the third element, namely the applicant's declarations that planned priceincreases had been accepted by customers in the United Kingdom, it maintains thatthis can only be relevant if the first two elements were present, which they werenot.

248.

    The Court observes that Article 4(d) of the Treaty provides as follows:

'The following are recognised as incompatible with the common market for coaland steel and shall accordingly be abolished and prohibited within the Community,as provided in the Treaty:

...

(d)    restrictive practices which tend towards the sharing or exploiting ofmarkets‘.

249.

    Article 65(1) of the Treaty prohibits 'All agreements between undertakings,decisions by associations of undertakings and concerted practices tending directlyor indirectly to prevent, restrict or distort normal competition within the commonmarket ..., and in particular those tending:

(a)    to fix or determine prices;

(b)    to restrict or control production, technical development or investment;

(c)    to share markets, products, customers or sources of supply.‘

250.

    In the present case, the conduct of the applicant objected to in recitals 224 to 228and 231 to 233 of the Decision is characterised by the Commission as 'agreements‘to fix prices within the meaning of that provision. It is proved by the facts nowfound by the Court that, on each of the occasions referred to by those recitals ofthe Decision, the undertakings in question, including the applicant, did not confinethemselves to merely exchanging information on their price 'forecasts‘ or ongeneral market trends but expressed their common desire to conduct themselveson the market in a particular manner in regard to prices, that is to say, to act insuch a way as to ensure that the prices agreed at the meetings in question wouldbe achieved or, in some cases, maintained. The Court finds that such a commonintention constitutes an 'agreement‘ within the meaning of Article 65(1) of theTreaty. Moreover, the Court sees no reason here to interpret the concept of'agreement‘ in Article 65(1) of the Treaty differently from the concept of'agreement‘ in Article 85(1) of the EC Treaty (see Rhône-Poulenc v Commission,cited above, paragraph 120).

251.

    As regards the applicant's conduct in relation to the three price increases on theBritish market, characterised in the Decision as 'concerted practices‘ (see recitals220 and 230, in fine), the Court holds that this concept must be construed havingregard to the purpose of Article 65(1) and the legal framework of the Treaty.

252.

    In Opinion 1/61 of 13 December 1961 [1961] ECR 243 the Court of Justice stressedthat the purpose of Article 4(d) of the Treaty was to prevent undertakings fromacquiring, by means of restrictive practices, a position allowing them to share orexploit markets. According to the Court of Justice, that prohibition, to which effectis given by Article 65(1) of the Treaty, is of strict application and distinguishes thesystem established by the Treaty (p. 262). The Court of Justice has also stressed,in regard to the system of publication of prices under Article 60 of the Treaty (seebelow), that 'The Treaty is based on the assumption that the freedom given toundertakings to fix their own prices and to publish new price-lists whenever theywish to amend them will ensure that prices find their own level. If current markettrends change, producers will have to amend their lists accordingly, and in this way”the market makes the price”‘ (Case 1/54 France v High Authority [1954-1956]ECR 1, at p. 14). It also follows from the case-law of the Court of Justice that,even though the steel market is an oligopolistic market, characterised by the systemof Article 60 of the Treaty which ensures, through the compulsory publication ofscales of prices and transportation charges, publicity for the prices charged by thevarious undertakings, the resulting immobility or parallelism of prices are not, inthemselves, contrary to the Treaty if they result not from an agreement, even tacit,between the parties concerned, 'but from the interplay of the strengths and

strategies of independent and opposed economic units on the market‘ (Case 66/63Netherlands v High Authority [1964] ECR 533, at pp. 548 and 549).

253.

    It follows from that case-law that the idea that every undertaking must determineindependently the market policy which it intends to pursue, without collusion withits competitors, is inherent to the ECSC Treaty and in particular Articles 4(d) and65(1) thereof.

254.

    In those circumstances, the Court holds that the prohibition by Article 65(1) of theECSC Treaty of 'concerted practices‘ in principle has the same purpose as theparallel prohibition of 'concerted practices‘ in Article 85(1) of the EC Treaty. More particularly, it seeks to ensure the effectiveness of the prohibition underArticle 4(d) of the Treaty by bringing within that prohibition a form of coordinationbetween undertakings which, without having reached the stage where an agreementproperly so-called has been concluded, knowingly substitutes practical cooperationbetween them for the risks of normal competition under the Treaty (see Case 48/69ICI v Commission [1972] ECR 619, paragraph 64).

255.

    As regards more specifically the three cases of price increases on the British marketwhich the Commission found to be 'concerted practices‘, it should be borne inmind that: (a) these three cases arose in a context of regular collusion throughnumerous meetings and written correspondence between the undertakingsbelonging to the Poutrelles Committee designed, in particular, to coordinate theirconduct with regard to prices on the various national markets; (b) on each of thethree occasions involving prices on the British market, the applicant revealed to itscompetitors, during a meeting which most of them attended, what its future marketconduct would be in regard to prices, calling on them to adopt the same conduct,and thus acted with the express intention of influencing their future competitiveactivities; (c) the framework of regular coordination within the PoutrellesCommittee was such that the applicant was reasonably able to count on itscompetitors complying in large measure with its call or, at least, on their bearingit in mind when deciding on their own commercial policy; (d) contrary to what theapplicant contends, the factors relied on by the Commission establish that theundertakings in question did comply, in large measure, with the applicant'sproposals.

256.

    It follows from all of these considerations that, in these three cases, theundertakings in question substituted practical cooperation between them for therisks of normal competition under the Treaty, which the Commission rightlycharacterised as 'concerted practices‘ within the meaning of Article 65(1) of theTreaty.

257.

    Moreover, it follows from the Court's case-law concerning the EC Treaty that, inorder to be able to conclude that a concerted practice existed, it is not necessaryfor the concertation to have had an effect, in the sense understood by the

applicant, on the conduct of competitors on the market. It suffices to find thateach undertaking was bound to take into account, directly or indirectly, theinformation obtained during its contacts with its competitors (Rhône-Poulenc vCommission, cited above, paragraph 123).

258.

    That case-law can be transposed to the sphere of application of Article 65 of theECSC Treaty, since the concept of a concerted practice fulfils the same role thereas the equivalent concept in the EC Treaty.

259.

    This conclusion is not invalidated by the wording of Article 65(5) of the Treaty,which provides that the Commission may impose fines by reason of 'concertedpractices‘ only where the parties concerned have 'engaged‘ in practices contraryto Article 65(1). Undertakings engage in a concerted practice within the meaningof that provision where they actually take part in a scheme designed to eliminatethe uncertainty about their future market conduct and necessarily implying thateach of them takes into account the information obtained from its competitors (seeRhône-Poulenc, cited above, paragraph 123). It is therefore not necessary for theCommission to demonstrate that the exchanges of information in question led toa specific result or were put into effect on the market in question.

260.

    This interpretation is reinforced by the wording of Article 65(1) of the Treaty,which prohibits 'All ... concerted practices tending directly or indirectly to prevent,restrict or distort normal competition within the common market‘. The Courtconsiders that this prohibition applies to any concerted practice which 'tends‘ or'is likely‘ to affect adversely normal competition, without its being necessary toprove, for the purpose of finding that an infringement has been committed, thatthere has been an actual and specific effect on competition. In its judgment inCase 2/56 Geitling and Others v High Authority [1957 and 1958] ECR 3('Geitling I‘), the Court of Justice (at p. 17) indicated, moreover, that, in order toreach the finding that an agreement distorts or restricts competition, it is notnecessary to examine its practical effects, since that finding emerges in abstractofrom Article 65(1).

261.

    It follows that the applicant's argument that, in substance, the concerted practicesin question did not have any anti-competitive effect must be rejected.

262.

    The same also applies in particular with regard to the argument based on Article60 of the Treaty. That article has no bearing whatever on the interpretation of theterm 'concerted practice‘ within the meaning of Article 65(1) (see above).

263.

    In any event, even assuming that the applicant's interpretation should be accepted,to the effect that the concept of a concerted practice presupposes an effect on themarket in conformity with the result of the concertation, that condition is satisfiedin the present case with regard to the three price movements on the UnitedKingdom market. It has been established that the undertakings complied in largemeasure with the calls made by the applicant, which made it possible effectively to

impose the new prices. Moreover, the applicant's prices being, at the time, higherthan those of the continental producers, it errs in arguing that the provisions ofArticle 60 of the Treaty obliged those producers to align themselves to those priceswhen selling their products in the United Kingdom.

264.

    Nor can the fact that, at the time, the continental producers' price lists did notrefer to dimensions expressed in inches have any relevance in the legalcharacterisation of the applicant's conduct. In any event, the applicant has failedentirely to establish that this fact deprived the continental producers in question oftheir autonomy of action on the United Kingdom market.

265.

    It follows from all of the foregoing that the applicant has not established that therewas an error of law in the analysis of the conduct in question in relation to theconcepts of 'agreements‘ or 'concerted practices‘ covered by Article 65(1) of theTreaty.

(b)    The purpose and effect of the agreements and concerted practices inquestion

266.

    According to recital 238 of the Decision, the agreements and concerted practicesin question in recitals 223 to 237 'tended to‘ restrict competition within themeaning of Article 65(1) of the Treaty. In recital 221 of the Decision, theCommission identifies the 'purpose‘ of the conduct in question as being, inter alia,'to increase and harmonise prices‘. In recital 222, after stating that the analysisof that purpose makes it unnecessary to demonstrate that there was an adverseeffect on competition, the Commission none the less forms the view that this effectwas far from negligible.

267.

    The applicant maintains that the Commission infringed Article 65 of the ECSCTreaty by basing its conclusions primarily on the object of the alleged agreementsand concerted practices, without carrying out any adequate analysis of their effects. Prohibited agreements under Article 65 of the ECSC Treaty are solely those whichtend to have a restrictive effect on normal competition in the market concerned,without there being any need, at that stage, to have regard to the intention of theparties to the agreement or to its object.

268.

    The applicant further states, with reference to recitals 225, 229, 230, 236, 237, 293and 302 to 304 of the Decision, that even where the Commission goes on to analysethe effects of the alleged agreements or concerted practices, its analysis isinadequate and for the most part based on bare assertions or presumptions withoutfurther substantiation.

269.

    Finally, the applicant submits that even if the object of the alleged agreements andconcerted practices were the relevant test for determining whether Article 65 of the

ECSC Treaty has been infringed, the Commission has in any event failed to showthat the applicant's object in participating in a number of the practices of which itis accused was to restrict competition. The applicant maintains that this caseinvolved exchanges of information on future prices and actual market pricescharged, in furtherance of the consultation between the steel industry and theCommission, and to enable prices to be aligned under Article 60 of the Treaty.

270.

    The Court has already found that this case involves agreements and concertedpractices on price-fixing, not exchanges of information on prices or future prices. Such agreements and concerted practices tend, by their very nature, to prevent,restrict or distort normal competition within the meaning of Article 65(1) of theTreaty.

271.

    Having regard to the evidence adduced by the Commission, the Court cannotaccept the applicant's claim that this case involved an exchange of informationdesigned to facilitate price alignment within the framework of Article 60 of theTreaty. In any event, the provisions of Article 60 do not affect the anti-competitivepurpose of the agreements and concerted practices at issue in this case (see below).

272.

    Nor can the Court accept the claim that what was involved was an exchange ofinformation in furtherance of the consultation between the steel industry and theCommission. As is clear from the Court's findings in Part D below, there is nothingin the evidence to support the assertion that this consultation required or evenprovoked such agreements or concerted practices, of whose existence theCommission was, moreover, unaware.

273.

    In so far as Article 65(1) of the Treaty refers to agreements 'tending‘ to distortnormal competition, the Court holds that this expression includes the formula 'haveas their object‘ found in Article 85(1) of the EC Treaty. The Commission wastherefore correct in holding, in recital 222 of the Decision, that it was not obliged,in order to establish an infringement of Article 65(1) of the Treaty, to demonstratethat there was an adverse effect on competition.

274.

    In any event, given the abundant evidence that the price increases agreed on in thiscase were achieved, it must be concluded that the conduct in question, involving themain Community producers of beams, necessarily had on the market an effectwhich was far from negligible, as the Commission found in recital 222 of theDecision.

(c)    Analysis of the conduct in question in relation to the criterion of 'normalcompetition‘

275.

    According to the applicant, the Commission infringed the ECSC Treaty by basingthe Decision to a large degree on the principles applicable under the EC Treaty,in disregard of the fundamental differences between those two Treaties.

276.

    Referring to the fundamental objectives laid down in Articles 2 to 5 of the ECSCTreaty, as interpreted in the case-law of the Court of Justice (see, in particular, thejudgments in Case 8/57 Aciéries Belges v High Authority [1957-58] ECR 245, JoinedCases 154/78, 205/78, 206/78, 226/78 to 228/78, 263/78 and 264/78, 31/79, 39/79,83/79 and 85/79 Valsabbia and Others v Commission [1980] ECR 907 (paragraphs53 to 55 and 80 to 84) and Case 119/81 Klöckner-Werke v Commission [1982]ECR 2627 (paragraph 14)), and to the provisions of Articles 46, 48, 58, 60, 61 and74 of that Treaty, the applicant maintains that the ECSC Treaty isuncompromisingly dirigiste in nature, in that it confers on the Communityinstitutions extensive powers of regulation and intervention in the market with aview to achieving those objectives.

277.

    In those circumstances, 'normal competition‘, as referred to in Article 65 of theECSC Treaty, is not the same as the system of 'workable competition‘ establishedby Article 85 of the EC Treaty (see the judgment of the Court of Justice inCase 26/76 Metro v Commission [1977] ECR 1875, point 20).

278.

    According to the applicant, 'normal competition‘ under Article 65 of the ECSCTreaty is — apart from the limitations placed on it by provisions such as Article 60of that Treaty — a flexible concept, the application and implementation of which atany given time will necessarily depend on industry and market conditions and onthe extent and effects of institutional intervention, as well as the resulting needpermanently to reconcile the competing objectives of the ECSC Treaty (see thejudgments in Valsabbia and Others v Commission and Klöckner-Werke vCommission, cited above). It is for that reason that Article 65 of the ECSC Treatydoes not have direct effect, since national courts or authorities could not beexpected to be able to analyse and balance the priorities relating to competition(see the judgment of the Court of Justice in Case C-128/92 Banks [1994]ECR I-1209).

279.

    The applicant maintains that until recently the Commission did recognise thefundamental differences between the Treaty of Paris and the Treaty of Rome, butthat a radical change in policy took place in 1991, when the future of the ECSCTreaty was being reviewed and an 'alignment‘ of the two Treaties was considereddesirable. The Commission, it argues, wrongly gave effect to this policy in theDecision, even though such 'alignment‘ cannot run counter to the objectives andprinciples of the ECSC Treaty and cannot be effected retroactively.

280.

    With regard to the substance, the applicant argues more specifically that thedefendant failed adequately to take into consideration the way in which the pricingrules in Article 60 of the ECSC Treaty were applied in practice during the periodof manifest crisis and thereafter. According to the applicant, communication ofmarket prices between undertakings resulted, in the present case, from the needto observe the principle of transparency enshrined in Article 60 of the ECSCTreaty and to justify, by alignment, sales made at a discount off list price at a time

when the price list system had broken down. It was normal practice at the time,in most markets, for sales to be 'aligned‘ onto the general level of prices prevailingon the market concerned, otherwise known as the 'market price‘, as establishedby the principal producers on the basis of the information obtained by theircommercial departments. The practices in question thus made it possible tosafeguard the transparency which the Commission could no longer guarantee.

281.

    The Commission, furthermore, was aware that information on intended changes inbasic prices was being exchanged between producers. The applicant refers to apaper dated 6 July 1989 addressed to Eurofer (document 1 in Appendix 5 to theapplication), in which the Commission acknowledged that 'list prices are (exceptin the present, exceptional situation) markedly above market prices‘ and that 'thecurrently applicable rules hardly correspond to market reality‘. The applicant alsorefers to the minutes, dated 31 July 1989, of a meeting held on 20 July 1989(document 2 in Appendix 5 to the application), which features a proposal for thecreation of a system of 'market‘ rebates enabling producers to exchangeinformation in order to re-establish transparency for the purposes of alignment, andto the Commission communication to the Council and the European Parliament of15 March 1991, cited above, which stated that 'the price rules — particularly pricetransparency and non-discrimination — proved impracticable from the beginning [ofthe ECSC]‘.

282.

    According to the applicant, it follows from the application of the price rules, asdescribed above, that two possibilities were open to it in making sales tocontinental ECSC markets: either to sell at list price, which, it claims, wouldnecessarily have resulted in prices higher than the market prices, or aligning ontothe prices of competing undertakings. Consequently, all its sales on the continentalECSC markets in 1989 and 1990 were aligned onto the prices of its competitorswho delivered on those markets. Referring to recital 226 of the Decision, theapplicant maintains that, in those circumstances, its presence at PoutrellesCommittee meetings added nothing to its competitors' knowledge of its futureconduct since, as a result of the application of the pricing rules in Article 60 of theTreaty, it could not have sold on those markets at prices lower than those of itscompetitors.

283.

    Furthermore, the defendant failed to take account of the fact that exchanges ofinformation between producers had been established to meet the Commission'sown requirements for assistance in its management functions under the ECSCTreaty, particularly Articles 46 and 48 thereof. The applicant points out that fromthe end of the production quota system, in July 1988, the fragility of the recoveryof the market and the vulnerability of the steel industry to the effects of a downturnin demand, which would be likely to result in a price collapse and impair efforts torestructure the industry, meant that accurate and up-to-date information had to bemade available to determine consumption trends on the Community and nationalmarkets. The Commission, which, according to the applicant, wished to avoid pricedestabilisation necessitating a new crisis regime, was not in a position to obtain that

information within the framework of Decision No 2448/88/ECSC and expectedproducers to assist it in establishing the forward programmes and to give it theirviews on the development of trends in quantities and prices. In order to estimateprice developments, producers needed to obtain each other's views on expectedtrends in the different ECSC countries.

284.

    The applicant adds that, contrary to what is stated in recital 240 of the Decision,the information on its intention to increase basis prices which was given to otherproducers at meetings of the Poutrelles Committee was not a business secret. Itsubmits that giving customers advance notice of price changes has, since 1973 atleast, been an established characteristic of the United Kingdom market, and pricetransparency has thus benefited customers as well as producers. Trade associationsand principal customers in the United Kingdom were informed by it of its proposedprice increases at quarterly trade association meetings and by the publication of theprice list at least one month before the effective date of the increase.

285.

    Pointing out, finally, that the manifest crisis regime came to an end on 30 June1988, the applicant argues that conditions of competition could not move overnightfrom those where undertakings were subject to the effects of direct intervention bya Community institution to conditions corresponding to the free market model ofthe EC Treaty. In its view, those difficulties could have been avoided if theCommission had recognised the flexibility inherent in the concept of 'normalcompetition‘ in Article 65 of the ECSC Treaty and made provision for a period oftransition.

286.

    In their joint pleadings at the hearing, the applicants also stressed, inter alia, thatthe principle of the market economy inherent in the EC Treaty must be contrastedwith the principle of the managed economy under the ECSC Treaty. They cited,in this connection, the work by Professor Paul Reuter entitled 'La Communautéeuropéenne du charbon et de l'acier‘ (Paris, LGDJ, 1953), in which it is stated that'the competition established by the Treaty is not and cannot be free competitionbut merely fair and regulated competition‘ (p. 143), according to rules 'which drawan analogy between the conditions in which [undertakings] operate and those inwhich public services operate‘ (p. 205). 'Normal‘ competition under the ECSCTreaty is merely subordinate in character, as is demonstrated by the provisionsrelating to publication of price lists on the basis of specified parity points (Article60(2)), the requirement of transparency (Articles 46 to 48) and the possibility ofsuspending competition (Articles 61, 53 and 58). Under the ECSC Treaty,competition is merely one instrument among others (see Banks, cited above). Inso far as the Commission has the task of reconciling the objectives of the Treatyand thus determining the application and content of the competition rules (see theTwentieth Report on Competition Policy, point 120), it is supposed to work in closecollaboration with undertakings.

287.

    This submission was supplemented at the hearing by a statement by ProfessorSteindorff. He submitted that Article 65 had to be construed narrowly, in the lightof the ECSC Treaty as a whole, characterised as it was by certain politicalobjectives related to the specific features of the sector. Discussions betweenundertakings under the system provided for in Articles 46 to 48 of the Treaty hadnever been regarded as infringing Article 65 (see the report of the FrenchDelegation on the ECSC Treaty and the 1951 Convention on the TransitionalProvisions, as well as the above work of Professor Paul Reuter). Those discussionsform part of normal competition, provided that the Commission directs them or,in the case where the undertakings themselves take the initiative, that they act ingood faith and for the purpose of preparing their discussions with the Commission. Article 60 of the Treaty was conceived in such a manner as to limit undercuttingand to protect existing relations between producers and customers. Put in thecontext of the EC Treaty, such a system is incompatible with Article 85 thereof. Given the difficulties in implementing Article 60 of the Treaty, difficultiesrecognised by the Commission, an exchange of information on prices, which in anyevent are supposed to be published, is not contrary to Article 65(1) of the Treaty.

Findings of the Court

288.

    The applicant's argument rests on three aspects: the legislative context of Article65(1); Article 60 of the Treaty; and Articles 46 to 48 of the Treaty.

—     The context of Article 65(1) of the Treaty

289.

    It must first be borne in mind in this case that the undertakings concluded anumber of agreements on the prices to be charged during a particular quarter or,at least, which were to be considered as the objective which they endeavoured toachieve by common agreement (see the second paragraph of recital 225 of theDecision). As regards the three instances of concerted practices concerning priceson the United Kingdom market, these made it possible to ensure that the level ofthe continental producers' prices would not compromise the increases announcedby British Steel. They were not therefore mere exchanges of information on futureprice or market price 'forecasts‘ or 'estimates‘, as the applicant contends.

290.

    As regards the aim of Article 65(1) of the Treaty, which is to safeguard therequirement that undertakings should have market autonomy in order to ensurecompliance with the prohibition in Article 4(d) of 'restrictive practices which tendtowards the sharing or exploiting of markets‘, such coordination of conduct,achieved by means of an agreement or a concerted practice designed to achievespecific price objectives, must be treated as tending 'to fix ... prices‘ within themeaning of Article 65(1) and thus as being contrary to that provision.

291.

    The applicant's argument that Article 65(1) of the Treaty is 'flexible‘ in contentand should be construed according, in particular, to market conditions at a giventime cannot justify a reading of that provision which is at variance with its objectivepurpose as indicated by its wording and legislative context. Moreover, in theFrench Government Declaration of 9 May 1950, which preceded the drafting of theTreaty, it was stated that: '... unlike an international cartel designed to share andexploit national markets through restrictive practices and maintenance of highprofits, the planned organisation will ensure the merger of markets and theexpansion of production‘.

292.

    While it is true that the oligopolistic character of the markets covered by the Treatymay, to some extent, weaken the effects of competition (Case 13/60 Geitling andOthers v High Authority [1962] ECR 83 ('Geitling II‘), p. 110), that considerationalso cannot justify an interpretation of Article 65 authorising undertakings tobehave in such a way as, in this case, reduces competition even further, particularlythrough price-fixing. In view of the consequences which the oligopolistic structureof the market may have, it is all the more necessary to protect residual competition(see, in the context of the application of Article 65(2) of the Treaty, Geitling II,p. 110).

293.

    As for the planning aspects of the Treaty, the Court has already pointed out thatArticle 4(d) of the Treaty, to which effect is given in particular by Article 65(1)thereof, contains a prohibition of strict application which distinguishes the systemestablished by the Treaty (Opinion 1/61, cited above, p. 262; Banks, cited above,paragraphs 11, 12 and 16). The objective of free competition thus has, within theTreaty, an independent character and the same binding force as the other Treatyobjectives laid down in Articles 2 to 4 (see the judgments in France v HighAuthority, cited above, p. 9, and in Groupement des Hauts Fourneaux et AciériesBelges v High Authority, cited above, at p. 253).

294.

    Likewise, the need permanently to reconcile the different objectives of Article 3 ofthe Treaty (Valsabbia, cited above, paragraphs 53 to 55) has no bearing on thescope of Article 4(d) or of Article 65(1), which lays down a general prohibition ofagreements which tend to distort normal competition (see Joined Cases 36/59,37/59, 38/59 and 40/59 Präsident Ruhrkohlen-Verkaufsgesellschaft and Others v HighAuthority [1960] ECR 423, at p. 439).

295.

    The applicant's argument based on an alleged 'alignment‘ of the ECSC Treatywith the EC Treaty since 1991 is thus irrelevant since the price-fixing agreementsand concerted practices at issue in this case are in themselves clearly prohibited byArticle 65(1), irrespective of any 'alignment‘ of the two Treaties.

296.

    Finally, regard being had to the rigid prohibition which characterises the systemestablished by the Treaty, the Commission was not entitled to provide for a

'transitional period‘ after 30 June 1988 during which Article 65(1) of the Treatywould not be fully effective.

—     Article 60 of the Treaty

297.

    As regards the applicant's arguments based on Article 60 of the Treaty, thatprovision, which gives effect to Article 4(b) of the Treaty, prohibits, in paragraph(1),

'—    unfair competitive practices, especially purely temporary or purely localprice reductions tending towards the acquisition of a monopoly positionwithin the common market;

—    discriminatory practices involving, within the common market, theapplication by a seller of dissimilar conditions to comparable transactions,especially on grounds of the nationality of the buyer.‘

298.

    Article 60(2)(a) of the Treaty makes compulsory, for the purposes set out above,the publication of the price lists and conditions of sale applied on the commonmarket. Under Article 60(2)(b), the methods of quotation used must not have theeffect that prices charged by an undertaking in the common market, when reducedto their equivalent at the point chosen for its price lists, result in increases over theprice shown in the price list in question for a comparable transaction, or inreductions below that price the amount of which exceeds, inter alia, the extentenabling the quotation to be aligned on the price list, based on another point whichsecures the buyer the most advantageous delivered terms.

299.

    According to settled case-law, the purpose of the compulsory publication of pricesunder Article 60(2) of the Treaty is, first, as far as possible to prevent prohibitedpractices; second, to enable purchasers to learn exactly what prices will be chargedand be able themselves to check whether any discrimination has taken place, and;third, to enable undertakings to have an accurate knowledge of the prices of theircompetitors so as to enable them to align their prices (see France v High Authority,cited above, p. 9, and Case 149/78 Rumi v Commission [1979] ECR 2523,paragraph 10).

300.

    It must be acknowledged that the system laid down by Article 60 of the Treaty, andin particular the prohibition on departing from the price list, even temporarily,constitutes a significant restriction on competition.

301.

    However, in the present case, Article 60 of the Treaty is irrelevant for the purposeof assessing, in light of Article 65(1), the conduct of which the applicant standsaccused.

302.

    First, in so far as the applicant's arguments are based on the idea that this caseinvolves mere exchanges of information on future price 'estimates‘ or on marketprices, they are to no avail since, as the Court has just found, the applicantparticipated in agreements and concerted practices designed to fix prices.

303.

    Second, it is settled case-law that the prices which appear in the price lists must befixed by each undertaking independently, without any agreement, even a tacitagreement, between them (see France v High Authority, cited above, p. 14, andNetherlands v High Authority, cited above, p. 549). In particular, the fact that theprovisions of Article 60 tend to restrict competition does not prevent applicationof the prohibition of agreements under Article 65(1) of the Treaty (Netherlands vHigh Authority, cited above).

304.

    Third, Article 60 of the Treaty does not provide for any contact betweenundertakings, prior to publication of the price lists, for the purpose of exchanginginformation on their future prices. In so far as such contacts prevent those pricelists being fixed independently, they are liable to distort normal competition withinthe meaning of Article 65(1) of the Treaty.

305.

    Finally, as regards the argument that the applicant was entitled to enter into acommitment to comply with the provisions of Article 60 of the Treaty, by excludingcovert competition incompatible with that article, suffice it to recall that the presentcase involves agreements and concerted practices designed to coordinate prices,generally upwards, and not exchanges of information for ensuring compliance withArticle 60 of the Treaty.

306.

    Furthermore, even assuming that at that time the system of Article 60 of the Treatywas not functioning in the manner envisaged by the Treaty (see, in particular, theCommission's working document attached as Appendix 5, Document 2, to theapplication), it is clear from the objectives of Articles 4, 60 and 65 that the Treatyprotects both the interest in having non-discriminatory and public prices appliedand the interest in ensuring that competition is not distorted by collusivearrangements. The Court cannot therefore accept that the non-observance by theundertakings in question of the rules protecting the former interest can renderinapplicable the rules protecting the latter interest. The onus, in any event, was onthe undertakings themselves to comply with Article 60 of the Treaty, rather thanestablishing private price coordination between themselves, ostensibly in place ofthat provision, implementation of which is the responsibility of the Commission.

307.

    In any event, agreements between producers cannot be treated as falling under thesystem of Article 60 of the Treaty, if only because they do not enable purchasersto learn exactly what prices will be charged or to check whether discrimination hastaken place (see France v High Authority, cited above, p. 9, and Rumi vCommission, cited above, paragraph 10).

308.

    Furthermore, the applicant's claim that it had no option but to sell at the pricescharged by local producers on the continent has not been shown to have any basis. As the Commission submits, the applicant has failed to show that it was preventedfrom publishing a realistic price list for common metric sizes for its sales on thecontinent and from adhering to those prices, modifying its list as necessary. So faras sales by continental producers on the British market are concerned, there wasno question of the 'alignment‘ envisaged by Article 60(2)(b) of the Treaty since,at that period, the levels of the applicant's prices on the British market were higherthan the price-levels on the continental markets.

309.

    Finally, the applicant's assertion that a number of customers were informed inadvance of price increases remains entirely unproven. In any event, the provisionof such information to customers does not in any way alter the fact that theapplicant colluded with its competitors in order to fix the prices in question.

—     Articles 46 to 48 of the Treaty

310.

    As regards the arguments based on Articles 5 and 46 to 48 of the Treaty, it shouldbe borne in mind that, under the first indent of the second paragraph of Article 5of the Treaty, the Community must provide guidance and assistance for the partiesconcerned, by obtaining information, organising consultations and laying downgeneral objectives. Under the third indent of the second paragraph of Article 5 ofthe Treaty, the Community must ensure the establishment, maintenance andobservance of normal competitive conditions and exert direct influence onproduction or on the market only when circumstances so require. Article 46 of theTreaty provides, inter alia, that the Commission must, when consultingundertakings, conduct a continuous study of market and price trends andperiodically draw up programmes indicating foreseeable developments inproduction, consumption, exports and imports. Article 47 of the Treaty providesthat the Commission may obtain the information which it requires to carry out itstasks, while complying with the obligation of professional secrecy. Under Article48 of the Treaty, associations of undertakings, inter alia, may engage in any activitywhich is not contrary to the provisions of the Treaty, have the right to submit to theCommission the comments of their members in cases where the Treaty providesfor consultation with the Consultative Committee established under Article 18 ofthe Treaty, and are required to provide the Commission with any information whichthe latter considers that it requires in regard to their activities.

311.

    None of the above provisions allows undertakings to infringe the prohibition laiddown in Article 65(1) of the Treaty by concluding agreements or engaging inconcerted price-fixing practices of the kind here in question.

312.

    The applicant's arguments concerning the alleged need for undertakings toexchange information with each other within the framework of their cooperationwith DG III after 1 July 1988 will be examined in detail in Part D below.

313.

    Subject to that reservation, it follows from the foregoing that the Commission didnot misconstrue the scope of Article 65(1) of the Treaty or wrongly apply theprovisions of Article 85(1) of the EC Treaty to the facts of the present case. Similarly, the explanations which the Commission gave in recitals 239 to 241 of theDecision constitute an adequate statement of reasons for that aspect of theDecision.

314.

    It follows that, subject to that same reservation, the arguments againstcharacterising the conduct of which the applicant is accused as agreements orconcerted practices to fix target prices, as the Commission does in recitals 224 to237 of the Decision, must be rejected in their entirety.

The agreements to harmonise extras

315.

    In Article 1 of the Decision, the Commission found that the applicant hadparticipated in a practice described as 'harmonisation of extras‘. According torecitals 122 to 142 (regarding the facts) and recitals 244 to 252 (regarding the legalassessment) of the Decision, the undertakings in question adopted, at the PoutrellesCommittee meetings of 15 November 1988, 19 April 1989, 6 June 1989, 16 May1990 and 4 December 1990, five successive agreements to harmonise extras.

316.

    The applicant maintains that the Commission was estopped from finding that it hadinfringed Article 65 of the Treaty by agreeing to apply harmonised extras, onaccount of the Commission's own conduct in actively encouraging the continentalECSC producers to harmonise not only the structure but also the amounts of extrasduring the period of manifest crisis, and by reason of the Commission's failure toinform the applicant that its view on the legality of the harmonisation of levels ofextras had changed.

317.

    The applicant refers to its reply to the statement of objections in the Stainless Steelcase (document 2 in Appendix 2 to the application), and to a number of otherdocuments mentioned in that reply (Appendix 8 to the application), and also to ameeting which it had with Commission representatives on 13 July 1989 (Appendix 9to the application). Those documents clearly show that, contrary to what is statedin recital 250 of the Decision, the Commission did not regard harmonisation of thestructure of extras as sufficient to achieve the Community's aim of transparency,and that it encouraged producers to harmonise their actual levels, including thoserelating to beams.

318.

    The Stainless Steel decision does not mention harmonisation of extras, and theapplicant did not subsequently receive any formal or informal communicationwhatever in that regard from the Commission indicating a change of attitude untilit received the statement of objections in relation to beams in May 1992.

319.

    In any event, the fact that the applicant stated that it would apply the harmonisedextras appearing on continental ECSC producers' price lists in its deliveries to thosemarkets was consistent with the alignment rules under Article 60 of the Treaty anddid not have a restrictive effect on competition. In agreeing to respect localproducers' extras, the applicant merely confirmed that it would respect thealignment rules and comply with customers' requirements. Consequently, it did notlimit its own freedom of action as, even in the absence of such an agreement, itcould not have done otherwise than align onto local prices.

320.

    The Court observes that the applicant is not challenging any of the findings orinferences of fact set out in recitals 122 to 142 and 244 to 252 of the Decisionconcerning the conclusion of the agreements objected to therein and theidentification of their purpose, which was not only to harmonise but also to increasethe prices of extras. The applicant is merely asserting that the Commission activelyencouraged continental producers to harmonise not only the structure but also theamount of extras and that it was therefore itself entitled to conclude that theagreements in question were not contrary to Article 65(1) of the Treaty.

321.

    It must be concluded that the documents which the applicant has produced inAppendix 8 to the application do not establish that the Commission tolerated price-fixing agreements in the form of harmonisation of the amounts of extras. At anyrate, those documents, which date from 1979 to 1981 and from 1986, date back tothe crisis regime and have no relevance in the determination of the infringementswith which the applicant is charged in relation to the period after 30 June 1988. Furthermore, the Court finds that nothing in those documents allowed the applicantto take the view that the agreements on fixing the prices of extras covered by theDecision did not infringe Article 65(1) of the Treaty.

322.

    The same applies with regard to the note of 13 July 1989 (Appendix 9 to theapplication), which merely confirms that work on harmonising the price structurewas under way, with DG III encouragement, under the framework of Article 60 ofthe Treaty ('WLR said that certain collaborative work on the harmonisation ofprice structure was proceeding. He enquired where DG IV stood on the matteras such work was encouraged by DG III. [Riviere Marti] confirmed that DG III isrethinking the Article 60 price rules ...‘). Nor do the documents in Appendix 2 tothe application, which relate to the Stainless Steel case, establish that theCommission encouraged or tolerated the agreements at issue in this case.

323.

    Even if it is assumed that harmonisation of the structure of extras (dimensions,qualities, etc.) might be of some use for publishing price lists under Article 60 ofthe Treaty, the unavoidable conclusion is that this case involved agreements relatingnot only to the structure but also to the prices of extras, and in particular to theincrease in those prices on five occasions between 15 November 1988 and4 December 1990. Given that Article 60 of the Treaty does not under anycircumstances authorise agreements on pricing, the applicant's arguments based onthat provision are to no avail.

324.

    Consequently, and subject to the arguments examined in Part D below, theapplicant's heads of complaint directed at the Commission's finding, in recitals 122to 142 and 244 to 252 of the Decision, that agreements on harmonisation of extrashad been concluded, contrary to Article 65(1) of the Treaty, must be dismissed intheir entirety.

Market sharing under the 'Traverso methodology‘

325.

    In Article 1 of the Decision, the Commission found that the applicant had takenpart in market sharing which it calls the 'Traverso system‘. The period taken intoaccount for the purposes of the fine imposed by reason of that participation wastwo periods of three months. The grounds on which that charge is based are setout in recitals 72 to 79 (as regards the facts) and 254 to 259 (as regards the legalassessment) of the Decision.

326.

    In recitals 254 to 259 of the Decision, the Commission points out, inter alia, thatthe system in question 'was set up shortly before 19 July 1988‘ and that it 'was inoperation for the fourth quarter of 1988 and the first quarter of 1990‘. With thehelp of that system, the participating undertakings, that is to say, Peine-Salzgitter,Thyssen, Klöckner, Saarstahl, Unimétal, Ferdofin, Cockerill-Sambre, TradeARBEDand the applicant, 'strove to match supply and demand‘ (recital 254).

327.

    According to the Commission, the undertakings notified their delivery plans toMr Traverso, who at the time was chairman of the CDE (see recital 31 of theDecision). He was in a position to approach any of those undertakings and suggestmodifications if he thought fit to do so (recital 256). Distributed subsequently tothe participating undertakings, those figures took the form of 'delivery plans‘ foreach company and for each of the markets concerned (recitals 256 and 257). TheCommission also confirms that the chairman of the CDE and Eurofer approachedcompanies which disregarded those figures and requested them to respect thetraditional pattern of trade. Participating undertakings thus engaged in a concertedpractice prohibited by Article 65(1) of the Treaty '[by] disclosing their deliveryplans to each other and by putting into effect the recommendations of thechairman of the CDE‘ (recital 258 of the Decision).

328.

    The applicant submits that the Commission's finding that the 'Traversomethodology‘ was in effect a market-sharing arrangement between producers,whereby each agreed to limit its deliveries to Community markets in order tobalance supply and demand, is incorrect. The purpose of the reporting of deliveryintentions to Mr Traverso was solely to enable the producers and the Commissionto detect at an early stage whether supply was likely to outstrip demand by aconsiderable margin, at a time when there were fears that a downturn in demandmight lead to a collapse in prices. Mr Traverso never requested the applicant to

modify its delivery plans, and at no time did the applicant adjust its deliveries asa consequence of its discussions with him.

Findings of the Court

—     The first phase of the Traverso system (fourth quarter of 1988)

329.

    The Commission's finding that the applicant took part, during the fourth quarterof 1988, in a concerted practice known as the 'Traverso system‘ is based on thefollowing evidence:

—    an extract from the minutes of the Poutrelles Committee meeting of 19 July1988 (see recital 72 of the Decision, document no 2207);

—    a fax from Eurofer to ARBED/TradeARBED, the applicant, Cockerill-Sambre, Usinor Sacilor, Ferdofin, Klöckner, Saarstahl, Thyssen andPeine-Salzgitter, received by the latter on 4 August 1988 and referring to a'table showing the final delivery intentions collected at the end of the lastCDE meeting of 27 and 28 July 1988 in Paris‘ (recital 74 of the Decision,document no 3380);

—    an (undated) internal Peine-Salzgitter memo comparing the deliveryintentions of Peine-Salzgitter, Thyssen, Klöckner, Saarstahl, Unimétal,Ferdofin, Cockerill-Sambre, TradeARBED and the applicant for the fourthquarter of 1988 as compared with actual deliveries (recital 75 of theDecision);

—    a telex of 28 November 1988 from Unimétal to the applicant and theapplicant's reply of 6 December 1988 (recital 77 of the Decision, documentsnos 1989 and 1986).

330.

    The Court finds that the abovementioned pieces of evidence prove that theundertakings in question engaged in a concerted practice during the fourth quarterof 1988 by revealing to each other their delivery plans with the intention of givingeffect to the recommendations of the chairman of the CDE in such a way as toadjust supply to demand. The communication of the 'sales intentions‘ to Euroferwas expressly provided for in the scheme set out in the minutes of the meeting of19 July 1988, in the same way as the examination of those figures in regard to themarket estimates and subsequent amendments, to be proposed by Mr Traverso, inthe event that the intentions as communicated should 'diverge significantly frompast figures‘ (recital 72, document no 2207). In accordance with this idea, 'finaldelivery intentions‘ were 'collected‘ during the CDE meeting of 27 and 28 July1988 in Paris (fax of 4 August 1988, recital 74 of the Decision, document no 3380). Furthermore, in the table mentioned in that fax (see recital 75 of the Decision,

documents nos 3383 and 3384), the sum of the 'delivery intentions‘ for eachmarket corresponds to the figure indicated as a 'new market estimate‘. In the faxitself it is explained that 'in addition to the figures considered in Paris, some minoradjustments have been brought in for the English and Danish markets‘.

331.

    The Court further notes that, during the meeting on 19 July 1988, reference wasmade to 'the necessary equilibrium‘ (see recital 72 of the Decision). Along thesame lines, the fax of 4 August 1988 refers to the CDE chairman's expectation thatthe companies in question would not exceed the limit of the 'intentions‘communicated at that time and which, as stated therein, 'are related to the pricestability‘. Those indications show that the undertakings concerned accepted thoseintentions and that the objective of the system was indeed to ensure that therewould be a coincidence between 'delivery intentions‘ and 'market estimates‘ (seerecital 72 and the table cited in recital 75 of the Decision).

332.

    That objective could scarcely have been achieved if the undertakings, unaware ofthe definitive figures for their competitors, had been unable to monitor whether itwas being followed. Such monitoring, moreover, was carried out, once the tablein question had been distributed, by Peine-Salzgitter (see its internal memo citedin recital 75 of the Decision) and by the applicant and Unimétal (see the telexescited in recital 77 of the Decision). In addition, there is nothing to suggest thatthose undertakings treated this distribution of individual data among competitorsas abnormal.

333.

    Likewise, the exchange of correspondence between Unimétal and the applicant(recital 77 of the Decision) constitutes solid evidence of the objective of theTraverso system. That correspondence shows that the figures distributed weremeant to be complied with.

334.

    So far as the applicant is concerned, it is to be noted that it attended the PoutrellesCommittee meeting of 19 July 1988 (recital 38(c) of the Decision), that the fax of4 August 1988 was addressed to it, and that its own delivery intentions were set outin the table annexed thereto. Moreover, it was a party to the abovementionedexchange of correspondence with Unimétal. Its participation in the concertedpractice in question has thus been proved.

335.

    The fact that, at the time, the undertakings in question feared that a downturn indemand might lead to a collapse in prices cannot in any way alter the unlawfulcharacter of the agreement in question. Likewise, the fact that the applicantexceeded the figures agreed under that system (see recitals 75 and 76 of theDecision) did not prevent the Commission from finding that an infringement hadoccurred.

—     The second phase of the Traverso system (first quarter of 1990)

336.

    The Court finds that the resumption of the system in the first quarter of 1990 isproved by the two documents referred to in recital 78 of the Decision, that is to saythe letter of 31 January 1990 from Peine-Salzgitter to the chairman of the CDE(documents nos 3422 and 3423) and the applicant's briefing note of 20 July 1990(documents nos 1964 to 1966).

337.

    The content of the letter of 31 January 1990 from Peine-Salzgitter coincides withthe characteristics of the Traverso methodology. Addressed to the chairman of theCDE, it contains 'delivery intentions‘ for the first two quarters of 1990, justified,in principle, by the figures for earlier periods, that is to say, by 'past figures‘ withinthe meaning of the terminology used in the minutes of the meeting of 19 July 1988(see recital 72 of the Decision). Specific justification is provided for the firstquarter of 1990, in the sense of a rescheduling of deliveries which could not bemade previously.

338.

    The applicant's internal memo of 20 July 1990 concerning the PoutrellesCommittee meeting of 10 July 1990 refers to attacks led by other producers byreason of the way in which the applicant's continental sales had developed. In itsdefence, the applicant states that its sales for the previous quarter had remained'within the Traverso guidelines‘.

339.

    As for the applicant's file note on the meeting of 21 March 1990, according towhich a Unimétal representative had revealed that the system had broken down(see recital 79 of the Decision), that document demonstrates at most that, towardsthe end of the first quarter of 1990, to which the Commission's charge is confined,it could no longer be expected that the undertakings would comply with the figureswhich had been distributed. That, however, does not prevent the conclusion beingdrawn that the method had functioned well until that 'breakdown‘.

340.

    It follows from all of the foregoing that the establishment and operation of thecontested system for the fourth quarter of 1988 and the first quarter of 1990, asdescribed in the Decision, have been proved for the purposes of these proceedings. The same applies with regard to the applicant's participation in that system duringthose two periods.

341.

    Subject to the considerations examined in Part D below, all of the applicant'sarguments relating to the Traverso system must therefore be rejected.

Agreement to share the French market during the fourth quarter of 1989

342.

    Article 1 of the Decision charges the applicant with engaging in sharing of theFrench market and lays down, as a reference period for purposes of the fine, aperiod of three months.

343.

    In support of its charge, the Commission refers, in recitals 63 to 71 (facts) and 260to 262 (law) of the Decision, to an agreement to share deliveries on the Frenchmarket in respect of the fourth quarter of 1989. That agreement, it claims, wasconcluded during the meeting of the Poutrelles Committee held on or about21 September 1989 between Peine-Salzgitter, Thyssen, Saarstahl, Ferdofin,Cockerill-Sambre, TradeARBED, Ensidesa, Unimétal and the applicant. Accordingto the Commission, Ensidesa did not play an active role in drawing up the systembut did comply with it.

344.

    According to the applicant, the Commission made a number of errors of fact orinterpretation in relation to the documents on which it relies as evidence that theapplicant participated in the agreement in question. None of the documents reliedon by the Commission proves with any reasonable degree of certainty that anyagreement whatever was reached in relation to the sharing of the French market;even less do they show that the applicant, by expressly or impliedly agreeing toabide by certain quotas, was a party to any such agreement in the last quarter of1989. The applicant's deliveries to France (which far exceeded the estimatesapparently attributed to it: see recital 69 of the Decision) and the complaints madein December 1989 on that subject (see recital 53 of the Decision) cast doubt on thereliability of the inferences drawn by the Commission from those documents. Thecircumstantial evidence on which it relies is therefore contradicted by contrarycircumstantial evidence.

345.

    The Court notes that the Commission relies, in support of its findings, on thefollowing:

(a)    a meeting of 13 September 1989 between the representatives of Peine-Salzgitter, Thyssen, Saarstahl, the applicant, Unimétal, TradeARBED andCockerill-Sambre/Steelinter dealing with the question of deliveries of beamsto the French market in the fourth quarter of 1989 (recital 63 of theDecision);

(b)    a document drafted by the Walzstahl-Vereinigung and discovered in theoffices of Peine-Salzgitter (recital 63 of the Decision, documents nos 3140and 3141), and a manuscript note (document no 3138) attached to thatdocument by Peine-Salzgitter;

(c)    an internal memo dated 19 September 1989 prepared by Peine-Salzgitter(recital 64 of the Decision, document no 3139);

(d)    the minutes of the Poutrelles Committee meeting of 21 September 1989(recital 65 of the Decision, documents nos 211 to 217);

(e)    a note dated 25 September 1989 prepared by the Walzstahl-Vereinigungand recording the conclusions of the meeting of 21 September 1989 (recital66 of the Decision, documents nos 207 to 210);

(f)    a telex of 26 September 1989 sent by the Walzstahl-Vereinigung to Peine-Salzgitter, Thyssen, Saarstahl, Ferdofin, TradeARBED, the applicant,Ensidesa and Unimétal (recitals 67 and 261 of the Decision, documentno 3136);

(g)    the summary of the conclusions reached at the Poutrelles Committeemeeting of 7 November 1989, referring to a 'desire that the ”system ofdeliveries for the French market in the fourth quarter of 1989” should beextended to the first quarter of 1990 and to all ECSC markets‘ (recitals 68and 261, final indent, of the Decision, documents nos 224 to 229), and theminutes of that meeting (recital 71 of the Decision, documents nos 230 to235).

346.

    The Commission also found, on the basis of the data resulting from the monitoringof the deliveries made during the fourth quarter of 1989, that most of theparticipating companies either complied with the delivery plan drawn up ordelivered quantities below those envisaged. Only three undertakings (Thyssen,Ferdofin and the applicant) substantially exceeded those quantities (recitals 262 and69 of the Decision).

347.

    The Court holds that the findings set out in recitals 261 and 262 of the Decision,on the basis of the evidence listed in recitals 63 to 71, support the Commission'sconclusion that an agreement to share the French market was concluded, byreference to the quantities set out in the telex of 26 September 1989 cited in recital67, for the fourth quarter of 1989.

348.

    First, it is clear from the evidence discussed in recitals 63 and 64 of the Decisionthat, following the Poutrelles Committee meeting of 13 September 1989 dealing,in particular, with deliveries on the French market, and prior to the meeting of21 September 1989, the undertakings concerned were endeavouring to reach suchan agreement.

349.

    The internal Peine-Salzgitter memo of 19 September 1989 (recital 64, documentno 3139) reveals that those undertakings had started negotiations to find anallocation formula, on the basis of two proposals. The document prepared by theWalzstahl-Vereinigung (document no 3141), to which the author of that memorefers, sets out the previous deliveries of the undertakings concerned and, on thatbasis, two separate allocation formulas. The first comes under the heading 'Frenchmarket — Beams — Fourth quarter of 1989‘, the second under the heading 'Gaillardalternative‘. According to the Peine-Salzgitter memo, Peine-Salzgitter 'agreed‘that the percentage corresponding to previous delivery figures should be appliedto it, on the basis of the 'document drawn up by the [Walzstahl-Vereinigung]‘,

which it recognised as a 'basis for the allocation to Eurofer suppliers‘. Taking theview that 'the basis must, however, be 33 000 tonnes‘, it stated that it was infavour of the first allocation formula, to the exclusion of the second (that is to say,the 'Gaillard alternative‘), proposed by a Unimétal representative. This point ofview is also expressed in Peine-Salzgitter's manuscript note cited in the finalparagraph of recital 63 of the Decision (document no 3138). It appears from thosetwo documents that the other companies concerned also rejected the 'Gaillardalternative‘.

350.

    With regard, second, to the documents concerning the meeting held on21 September 1989, that is to say two days after the date of the Peine-Salzgittermemo of 19 September 1989, while it is true that the minutes of that meeting referonly to the deliveries to be made by Unimétal, it appears nevertheless that all ofthe plants concerned, whether or not belonging to Eurofer, had 'notified plans toreduce deliveries‘ (see the Walzstahl-Vereinigung note, recital 66 of the Decision,documents nos 207 to 210). The Court takes the view that this latter reference canonly be reasonably construed as evidence of the completion of efforts made onlya few days previously to reach an agreement on the quantities to be delivered onthe French market. Having regard to the context of those preliminary discussions,it can be excluded with sufficient certainty that the announcements made by theundertakings concerned about their deliveries reflected decisions which they hadtaken independently.

351.

    The Court finds, third, that the Walzstahl-Vereinigung telex of 26 September 1989(recital 67 of the Decision, document no 3136) informed the parties of the detailsof the agreement thus reached. The undertakings for which a delivery quantity isindicated are those for which such a quantity had been envisaged in thepreparatory documents drawn up by the Walzstahl-Vereinigung, with the singleexception of Klöckner, which (with an insignificant quantity) features only in thesepreparatory documents (recital 63 of the Decision). Close examination of thosefigures also suggests that the two historical percentage figures used in the latterdocuments for seven of the undertakings concerned (Peine-Salzgitter, Thyssen,Saarstahl, Ferdofin, Cockerill-Sambre, ARBED and the applicant) served as a basisfor determining the definitive share for each of them in the total quantity allocated. Thus, the previous percentage figures amounted, in the applicant's case, to 5.5%and 5.9%, and its definitive share, notified by telex of 26 September 1989, to 5.7%.

352.

    The fact that the quantities indicated in the telex in question were described thereas 'approximate‘ does not alter the conclusion that those quantities were thesubject of an agreement between the undertakings concerned.

353.

    It also appears that, during the meeting of 7 November 1989, the undertakings tookthe view that the figures for delivery orders during the material quarter were at a'reasonable‘ level (see the short account cited in recital 68 of the Decision, andthe minutes cited in recital 71, documents nos 230 to 235), and expressed the

'desire that the ”system of deliveries for the French market in the fourth quarterof 1989” should be extended to the first quarter of 1990 and to all ECSC markets‘. Read in its context, this reference implies that such a system for the allocation ofdeliveries for the market and quarter in question had indeed been put into place.

354.

    The existence of the agreement to which the Commission objects has thus beenproved.

355.

    For the reasons given in the judgment being delivered today in Case T-148/94Preussag v Commission, this conclusion is not affected by the testimony given at thehearing by Mr Mette and Mr Kröll of Preussag.

356.

    So far as the applicant's participation in that agreement is concerned, it must benoted that it attended the meeting of 13 September 1989 (recital 63 of theDecision) and that delivery figures relating to it were contained in the preparatorydocuments drawn up by the Walzstahl-Vereinigung. The applicant also took partin the meeting of 21 September 1989. The table sent by the Walzstahl-Vereinigungon 26 September 1989 (recital 67 of the Decision) was addressed to the applicant,among others, and its name is included there with a delivery figure. In view of allthat corroborative evidence, the Court concludes that the applicant was a party tothe disputed agreement. Finally, even though the applicant's deliveries during therelevant quarter may have exceeded the quantities allocated to it, that cannot provethat it did not conclude the agreement, but only that it did not observe it.

357.

    It follows from all of the foregoing that it has been proved for the purposes ofthese proceedings that the applicant entered into and participated in the agreementin question. That agreement was intended to share markets within the meaning ofArticle 65(1)(c) of the Treaty and was thus prohibited under that provision, subjectto the considerations which will be examined in Part D below.

Exchanges of information within the Poutrelles Committee (monitoring of orders anddeliveries)

358.

    According to Article 1 of the Decision, the applicant took part, during a 25-monthperiod, in an 'exchange of confidential information through the PoutrellesCommittee‘. The Commission sets out the details of that system in recitals 39 to60 of the Decision, as regards the facts, and in recitals 263 to 271 in regard to theissues of law.

359.

    The exchange of information through the Poutrelles Committee, commonly knownas 'monitoring‘, involved two stages relating to orders and deliveries of theparticipating undertakings (recital 263). It was organised by the secretariat of thePoutrelles Committee (recital 47), at that time provided by Usinor Sacilor (recital33), which collected the figures and redistributed them in the form of statistics(recital 40).

360.

    The monitoring of orders, established in 1984, allowed participating undertakingsto be informed by each other on a regular basis as to the orders they had receivedfor delivery in a specific quarter (recital 39) in the following countries: France,Germany, Belgium/Luxembourg, Netherlands, the United Kingdom, Italy, Spain,Portugal, and Greece/Ireland/Denmark. Since the beginning of 1989 at least, thosestatistics were collected and distributed each week by the secretariat of thePoutrelles Committee (recital 40).

361.

    The monitoring of deliveries, which operated from the beginning of 1989 for thestatistics relating to the fourth quarter of 1988, related to the quarterly deliveriesof participants on the markets of the ECSC (recital 41). Statistics broken down foreach undertaking were exchanged for the following markets: the ECSC as a whole,Germany, France, the United Kingdom, the Benelux area, Italy,Greece/Ireland/Denmark, Portugal and Spain. Those statistics were distributed amonth or two after the end of the relevant quarter (recital 42).

362.

    According to the Decision, these monitoring systems were suspended at the end ofJuly 1990 (recitals 43 to 46) following the adoption of the Stainless Steel decision,but were subsequently resumed, albeit without the applicant's participation (recital45).

363.

    In recitals 49 to 60 and 268 of the Decision, the Commission alleges that theseexchanges of information were frequently accompanied by discussions within thePoutrelles Committee, during which the undertakings complained about the conductof their competitors in relation to orders or exports, as well as about discrepanciesbetween the orders announced and deliveries actually made.

Summary of the parties' arguments

364.

    While not denying the facts alleged by the Commission, the applicant argues thatthe exchanges of information on orders and deliveries were not anti-competitive intheir objective but formed an integral part of the process of cooperation andconsultation between operators in the sector and the Commission under Article 46of the Treaty.

365.

    During the period of manifest crisis, from October 1980 to June 1988, the systemof Community-wide quotas set up by the Commission under Article 58 of theTreaty was entirely dependent on exchanges of information of an individual naturebetween producers, particularly within the framework of the Eurofer agreements. According to the applicant, those exchanges did not have the object of restrictingcompetition beyond what was considered necessary by the Commission to resolvethe manifest crisis situation.

366.

    Likewise, after the end of the quota regime, the Commission requested producersto provide it with information on developments in market trends so as to enableit to meet its obligations under the Treaty and the mandate which the Council hadconferred on it. According to the applicant, a consensus regarding the informationto be provided to the Commission could only be formed by producers on the basisof discussions between them concerning demand, supply and prices. In particular,in order to reach a joint view on development of quantities, the producers neededinformation on the situation regarding individual deliveries and orders.

367.

    According to the applicant, the Commission's finding concerning the object ofinformation exchanges on orders and deliveries (see recital 59 of the Decision,which refers to an internal Peine-Salzgitter note of 10 September 1990) is based onan incorrect assumption arising from a document drafted by another producer ata time when, following the collapse of the discussions on a restructuring planinitiated by Eurofer with the support of the Commission, and following theadoption on 18 July 1990 of the Stainless Steel decision, the applicant hadwithdrawn from the information exchanges on beams through the PoutrellesCommittee and/or Eurofer.

368.

    The applicant also challenges the defendant's finding, in recital 271 of the Decision,that the exchanges of information had an anti-competitive effect in that theyremoved all uncertainty as to the behaviour that competitors proposed to adopt onthe market. There were significant divergences throughout the period in questionbetween the orders booked and the deliveries made by most producers, and in thedetail provided by them, with the result that the information exchanges representedno more than an approximate indication of market trends. In addition, the levelof cross-border sales increased substantially, since producers seized everyopportunity to make further sales notwithstanding the indication of market trendsprovided by the exchanges of information.

369.

    With more specific regard to the exchanges of information on producers' individualdeliveries, the applicant also contends that such information was not 'normallyregarded as strictly confidential by undertakings‘ (recital 267 of the Decision)inasmuch as it was already in the public domain at the time when it was exchangedwith other producers.

370.

    Until 1992, detailed information on imports and exports of beams was publishedeach month by the United Kingdom Customs and Excise. In practice, the data thuspublished essentially concerned the applicant, other producers representing anegligible proportion of United Kingdom production and exports. Those statisticsare considerably more detailed than the information which was sent to Eurofer orthe Poutrelles Committee. Moreover, they were generally available several daysbefore the statistics on deliveries were sent by the applicant to Eurofer.

371.

    In those circumstances, the data on deliveries sent to Eurofer or the PoutrellesCommittee and subsequently circulated to other producers cannot, in the

applicant's submission, be regarded as a business secret. The same applies to datareceived by the applicant from Eurofer on imports from countries with a singleproducer, such as France, Portugal and Ireland. Moreover, it would have beeneasy to reconstitute the information relating to the applicant's deliveries in theUnited Kingdom on the basis of other publicly available information; the exchangeof such information cannot therefore have had an anti-competitive effect.

372.

    Finally, the applicant maintains that the period of 25 months, commencing in July1988 and ending in August 1990, during which, according to the table in Article 1of the Decision, it participated in exchanges of information on orders and deliveriesthrough the Poutrelles Committee has been incorrectly calculated. It ceased toprovide individual items of information on orders and deliveries for Communitymarkets in June 1990, when Eurofer decided henceforth to circulate onlyaggregated data. The information which the applicant provided in August 1990 tothe secretariat of the Poutrelles Committee was given on the understanding thatsuch data would be communicated to the other producers in an aggregate, globalform (see the note quoted at point 73 of the statement of objections). The factthat the secretariat of the Poutrelles Committee may have sent out individualinformation on the third quarter of 1990 to the German trade association, in breachof the agreed procedures and without the applicant's agreement, does not justifya finding that the applicant continued to participate in a system of exchanges ofindividual information until August 1990.

373.

    The Commission takes the view that the exchange by the undertakings ofinformation in this case was incompatible with Article 65 of the Treaty for thereasons set out in recitals 263 to 272 of the Decision.

374.

    However, in its reply of 19 January 1998 to a written question put by the Court, theCommission stated that the disputed information systems did not constitute aseparate infringement of Article 65(1) of the Treaty but formed part of widerinfringements consisting, in particular, in price-fixing and market-sharingagreements. Those agreements, the Commission argues, thus infringed Article65(1) of the Treaty in so far as they made it easier for those other infringementsto be committed. During the hearing the Commission, while doubtful as to whetherthe judgments of the Community Courts in the 'Tractor‘ cases (Case C-7/95 P JohnDeere v Commission [1998] ECR I-3111, paragraphs 88 to 90, and Case T-35/92John Deere v Commission, cited above, paragraph 51) are directly transposable tothe ECSC Treaty, stressed that the present case involved not only an exchange ofinformation but also the use of that information for collusive purposes, as is evidentfrom recitals 49 to 60 of the Decision.

Findings of the Court

—     The nature of the infringement of which the applicant is accused

375.

    Regard being had to the arguments set out by the Commission in its written replyof 19 January 1998 and during the hearing, it is necessary first of all to determinewhether the infringement of which the applicant is accused in recitals 263 to 271of the Decision constitutes a separate infringement of Article 65(1) of the Treatyor whether, on the contrary, the illegality of the information exchange systems inquestion lies in the fact that they made it easier to commit the other infringementsconfirmed in the Decision. This question is important not only for the legalanalysis of the conduct at issue but also for determining whether the imposition ofa separate fine for that conduct was justified (see below).

376.

    In recital 267 of the Decision, the Commission took the view that the undertakingsin question had gone beyond what was admissible in the exchange of informationinasmuch as, first, the information exchanged concerning the deliveries and ordersreceived by each individual company for delivery to the respective markets isnormally regarded as strictly confidential, and, second, the figures on orders wereupdated every week and circulated rapidly among the participants, while thedelivery figures were circulated shortly after the end of the quarter concerned. From this the Commission inferred that 'Each of the participating companies hadthus a comprehensive and detailed knowledge about the deliveries which theircompetitors intended to carry out and their actual deliveries. These companieswere consequently in a position to ascertain the behaviour which their competitorsproposed to adopt or had adopted on the market and act accordingly.‘

377.

    Next, the Commission states, in recitals 267 and 268 of the Decision, that this wasthe very reason for the exchange, since the information exchanged formed the basisfor the discussions on trade flows described in recitals 49 to 60 of the Decision. According to the Commission, the undertakings closely followed those figures andchecked whether deliveries matched the orders announced. During thosediscussions, the parties managed to bring about a 'remarkable degree oftransparency as between themselves‘. The Commission adds that, had theexchange been limited to figures of a merely historical value with no possibleimpact on competition, such discussions would have been inexplicable.

378.

    The Commission concludes, at recital 269 of the Decision, that the parties thusestablished a 'system of solidarity and cooperation designed to coordinate [their]business activities‘ and that they thereby 'replaced the normal risks of competitionby practical cooperation, resulting in conditions of competition differing from thoseobtaining in a normal market situation‘.

379.

    In recitals 270 and 271 of the Decision, the Commission points out that theexchange of individual information capable of influencing the conduct ofundertakings on the market is not covered by its communication on agreements,decisions and concerted practices relating to cooperation between undertakings (JO1968 C 75, p. 3) ('the 1968 communication‘). Invoking its Decision 87/1/EEC of2 December 1986 relating to a proceeding under Article 85 of the EEC Treaty(IV/31.128 — Fatty Acids) (OJ 1987 L 3, p. 17, hereinafter 'the Fatty Acids

Decision‘) and Decision 92/157/EEC of 17 February 1992 relating to a proceedingpursuant to Article 85 of the EEC Treaty (IV/31.370 and 31.446 — UK AgriculturalTractor Registration Exchange) (OJ 1992 L 68, p. 19, hereinafter 'the UnitedKingdom Agricultural Tractor Registration Exchange Decision‘), adopted underthe EEC Treaty, it takes the view that the exchange of information in the presentcase, which included accurate and up-to-date information on manufacturers' ordersand deliveries making it possible to determine the conduct of different undertakingsin a narrow oligopoly, was contrary to Article 65(1) of the Treaty.

380.

    It follows from the foregoing that the Commission based its legal assessment, inrecitals 263 to 271 of the Decision, on the specific characteristics of the monitoring,including the discussions on trade flows which took place on the basis of theinformation received, set out in recitals 49 to 60 of the Decision.

381.

    Even if it is also clear from the Decision that the monitoring did facilitate certainother infringements which the undertakings in question were found to havecommitted, in particular the 'Traverso methodology‘ and the agreement relatingto the French market for the fourth quarter of 1989, there is nothing in theDecision to indicate that this fact was taken into account in the legal assessmentof the system of information exchange in question in the light of Article 65(1) ofthe Treaty.

382.

    It must therefore be concluded that, in recitals 263 to 271 of the Decision, theinformation exchange systems in question were regarded as being separateinfringements of Article 65(1) of the Treaty. In so far as they seek to alter thislegal assessment, the arguments submitted by the Commission in its reply of19 January 1998 and at the hearing must therefore be rejected.

—     Anti-competitive nature of the monitoring

383.

    Article 65(1) of the Treaty is based on the principle that every trader mustdetermine independently the policy which he intends to follow on the commonmarket.

384.

    The Court finds, in this case, that the information distributed, relating toparticipants' orders and deliveries on the main Community markets, was brokendown by undertaking and Member State. The distribution of that information thusmade it possible to identify the position occupied by each undertaking in relationto the total sales by the participants on all of the geographical markets in question.

385.

    Since the information distributed was updated and sent out frequently, undertakingswere in a position to follow closely each change in market share held by theparticipants on the markets in question.

386.

    Thus, the figures relating to orders to be met during a particular quarter(monitoring of orders) were collected and distributed each week by the PoutrellesCommittee secretariat (recital 40 of the Decision). It is also clear from thedocuments identified in Annex I to the Decision that the time elapsing between thereference date of a table and that on which it was drawn up or made available tothe undertakings was normally less than three weeks. Likewise, the orders tableslisted in Annex I to the Decision were, with one single exception (namely the tablecited in point 26 of that Annex, the date of which is approximately two monthsafter the reference quarter), distributed either before the end of the referencequarter, sometimes even several weeks before, or a few days after the end.

387.

    As for the delivery figures, they were distributed in any event less than threemonths after the end of the relevant quarter.

388.

    All of the cooperation thus described was limited exclusively to those manufacturerswhich were parties to the arrangement, to the exclusion of consumers and othercompetitors.

389.

    Nor is it disputed that the exchange related to homogenous products (see recital269 of the Decision), so that competition based on product characteristics playedonly a limited role.

390.

    As regards the structure of the market, the Court finds that, in 1989, ten of theundertakings engaged in the Poutrelles Committee monitoring accounted for two-thirds of apparent consumption (recital 19 of the Decision). Given such anoligopolistic market structure, which can reduce competition ipso facto, it is all themore necessary to protect the decision-making independence of undertakings aswell as residual competition.

391.

    The matters set out in recitals 49 to 60 of the Decision confirm that, having regardto all the circumstances of the case, in particular the fact that the informationdistributed was up-to-date, broken down and intended only for producers, theproduct characteristics, and the degree of market concentration, the arrangementsin question clearly affected the participants' decision-making independence.

392.

    In general, the information distributed was the subject of regular discussions withinthe Poutrelles Committee. It appears, particularly from the evidence summarisedin recital 268 of the Decision, that criticism was expressed in regard to levels oforders considered to be too high (recital 51) and the deliveries of partiesconcerned, in particular to other Member States (recitals 51, 53 and 60), on thebasis that, in certain cases, deliveries between two countries or two areas wereanalysed (recitals 53, 55 and 57). In that context, the undertakings referredregularly to past figures (recitals 51, 53, 57 and 58), employing in that connectionthe term 'traditional delivery flows‘ (recital 57). During those discussions, threatswere voiced in regard to what was regarded as excessive conduct (recital 58) and,on several occasions, the undertakings criticised attempted to explain their conduct

(recitals 52 and 56). Finally, it appears that the distribution of the delivery figuresalso served to detect possible discrepancies in relation to the orders announced(recital 54). In this way, the monitoring of deliveries reinforced the effectivenessof the monitoring of orders (see recital 268 of the Decision).

393.

    It follows that the information which the undertakings received under thearrangements in question was capable of appreciably influencing their conduct, byreason of the fact that each undertaking knew that it was being kept under closesurveillance by its competitors and that it could, if necessary, react to the conductof its competitors, on the basis of considerably more recent and accurate data thanthose available by other means.

394.

    Contrary to what the applicant claims, there is nothing to indicate that possibleinaccuracies in the data exchanged could have deprived such exchange of its anti-competitive character. This is confirmed by Peine-Salzgitter's briefing note of10 September 1990 quoted in recital 59 of the Decision, stating that: 'An exchangeof only aggregated figures is (almost) useless for our purposes (opinion expressedby the German-Luxembourg group on 30 August 1990) because the marketbehaviour of individual suppliers can no longer be traced‘.

395.

    The Commission could also legitimately take the view, in recital 267 of theDecision, that the information here in issue is normally regarded as strictlyconfidential. Even if it were to be assumed that certain information on theapplicant's deliveries on continental markets could have been derived from customsstatistics, that did not apply to its deliveries on the United Kingdom market, to thedeliveries of most of the other members of the Poutrelles Committee, or to theinformation on orders. The data exchanged within the context of the monitoringcould not therefore be reconstituted on the basis of information available to thepublic. In those circumstances, the Court finds that such data, indicating the veryrecent market shares of participants and not publicly available, are by their verynature confidential data, as confirmed by the fact that interested undertakings couldreceive the data distributed by the secretariat only on a reciprocal basis (see recital45 of the Decision).

396.

    The Court also finds that this mutual control operated, at least implicitly, byreference to past figures, in a context in which, until January 1987, theCommission's policy tended towards the maintenance of 'traditional flows‘ oftrade, a term expressly used by the participants. The exchange thus tended topartition markets by reference to those traditional flows of trade.

397.

    It follows that the information exchange systems in question appreciably reducedthe decision-making independence of the participating producers by substitutingpractical cooperation between them for the normal risks of competition. Suchsystems tend, by their nature, to prevent, restrict or distort normal competitionwithin the meaning of Article 65(1) of the Treaty.

398.

    It also follows that the conduct of which the applicant stands accused is not coveredby point II.1 of the 1968 communication, which, according to its actual wording,does not apply to exchanges of information which reduce the decision-makingindependence of participants or is liable to facilitate coordinated conduct on themarket. Furthermore, the present case involves an exchange of individualised data,in the context of an oligopolistic market of homogenous products, which tended tocompartmentalise markets by reference to traditional flows.

399.

    With regard to the applicant's arguments on the need to exchange informationwithin the context of cooperation with the Commission, based on Articles 5 and 46to 48 of the ECSC Treaty and on Decision No 2448/88, there is nothing in thoseprovisions which expressly allows an exchange of information between undertakingssuch as that in question in this case. The question whether such an exchange wasimplicitly authorised by the conduct of DG III will be examined in Part D below.

400.

    Subject to that reservation, and regard being had in particular to the fundamentalprinciple of the Treaty that the competition to which it refers consists in theinterplay on the market of the strengths and strategies of independent and opposedeconomic units (Netherlands v High Authority, cited above), the Court finds that theCommission did not err in law in referring, at recital 271 of the Decision, to certaindecisions it had adopted under the EC Treaty in cases involving oligopolisticmarkets. With particular regard to the United Kingdom Agricultural TractorRegistration Exchange Decision, cited above, it must be pointed out that both thisCourt and the Court of Justice have ruled that, on a highly concentratedoligopolistic market, the exchange of information on the market is such as toenable traders to know the market positions and strategies of their competitors andthus to impair appreciably the competition which exists between traders (T-35/92John Deere v Commission, cited above, paragraph 51, and C-7/95 P John Deere vCommission, cited above, paragraphs 88 to 90). The Court considers that the sameapplies a fortiori where, as here, the information exchanged was the subject ofregular discussions between the participating undertakings.

401.

    The Court observes, finally, that, having regard to the nature of the discussionsconducted within the Poutrelles Committee and the information exchanged there,as well as to the wording of the 1968 communication, the undertakings in questioncould not have had any reasonable doubt that the exchanges in question prevented,restricted or distorted normal competition and that they were consequentlyprohibited under Article 65(1) of the Treaty. The same conclusion follows fromthe considerations set out by the Court in Part D below. In any event, the allegeddifficulties which might exist in assessing the prohibited nature of a course ofconduct cannot affect the prohibition itself, which is objective in nature. The Courtalso takes the view that, in recitals 266 to 271 of the Decision, the Commission hasprovided adequate legal grounds to support its view that the arrangements inquestion were contrary to the normal operation of competition.

402.

    In conclusion, the applicant's argument that the duration of the infringement wasless than 25 months, on the ground that the Poutrelles Committee secretariatdistributed individualised data in August 1990 without its agreement, must berejected. It is clear from Article 1 of the Decision, read in the light of recital 311,that this infringement lasted, according to the Commission, up to the end of July1990, so far as the applicant was concerned. According to Annex I to the Decision,the figures for Monitoring No 18b, dated 19 July 1990, were sent to the applicanton 20 July 1990 and those for Monitoring No 6, also dated 19 July 1990, werediscovered on the applicant's premises. The figures for Monitoring No 7, relatingto orders for delivery in the third quarter of 1990, dated 20 July 1990, were sent tothe applicant by Usinor Sacilor on 3 August 1990. Furthermore, the applicant hasfailed to establish that it instructed the Poutrelles Committee secretariat not todistribute the individualised data which it provided in June 1990. The Commissionwas thus entitled to take a 25-month period into account as the duration of theinfringement.

403.

    It follows from all of the foregoing that the applicant's arguments relating to theexchange of information within the Poutrelles Committee must be rejected in theirentirety, subject to the Court's findings in Part D below.

The practices relating to the various markets

1. Price-fixing on the Italian market

404.

    In recital 275, seventh indent, of the Decision, the Commission states that, at ameeting on 3 October 1988, target prices were adopted by TradeARBED, theapplicant, Unimétal, Preusssag and Ferdofin.

405.

    The Commission points out in recital 169 of the Decision that Ferdofin presentedthe results of this meeting at the meeting of the Poutrelles Committee on18 October 1988 (see document no 3552). The Commission also refers to a faxfrom TradeARBED to Norsk Jernverk dated 5 October 1988 (document no 2502).

406.

    The applicant denies the existence of the agreement in question, without puttingforward specific arguments.

407.

    The Court infers from the two incriminating documents that the prices for the firstquarter of 1989 were fixed by common agreement among the undertakingsconcerned.

408.

    The fax of 5 October 1988 from TradeARBED to Norsk Jernverk (documentno 2502) reads as follows (see recital 169 of the Decision):

'Re: HE sections for the Italian market

Further to our telephone conversation, I enclose details of the prices for HEsections on the Italian market which were set in Milan on Monday, 3 October‘.

409.

    Similarly, the fixing of those prices is presented, in the minutes of the PoutrellesCommittee meeting of 18 October 1988 (document no 3552) as being one of the'results of the discussion on the Italian beams market held in Milan on 3 October1988‘.

410.

    The evidence presented by Mr Mette, to the effect that this involved simply anotification of prices fixed independently by Ferdofin, does not call in question theCourt's construction of those documents.

411.

    The Court accordingly finds that the existence of the disputed agreement, designedto fix prices within the meaning of Article 65(1) of the Treaty, has been proved.

2. Sharing of the Italian market

412.

    In Article 1 of the Decision, the Commission accuses the applicant of havingparticipated in sharing the Italian market. The period taken into account forpurposes of the fine was three months.

413.

    The Commission points out in this regard, in recital 275, sixth indent, of theDecision, that a decision was taken on 21 June 1988 to renew, for the third quarterof 1988, the market-sharing arrangement previously agreed for the second quarterof 1988. That agreement was entered into by Ferdofin, TradeARBED, Cockerill-Sambre, the applicant, Peine-Salzgitter, Saarstahl, Thyssen and Unimétal. TheCommission refers to recitals 167 and 168 of the Decision.

414.

    According to the applicant, the Decision (see recital 167) does not specify whatdocuments are relied on to support the allegation that market-sharing agreementswere concluded in respect of the Italian market for the second and third quartersof 1988. Moreover, the documents referred to by the Commission (see recitals 167and 275 of the Decision) do not establish that the applicant was party to suchagreements.

415.

    The fact that a quota may have been attributed to the applicant at the meeting on13 March 1988 was a direct result of the quota system operated by the Commissionunder Article 58 of the Treaty. Furthermore, the fact that at that meeting a quotamay have been attributed to the applicant does not prove that the applicant agreedto the extension of that quota for a subsequent quarter. Thereafter, particularlyin June 1988, the applicant did not attend any meeting relating to the Italianmarket or reach any agreement with other producers regarding its sales in Italy. The documents which are relied on by the Commission in support of such anassumption were not written by or communicated to the applicant.

416.

    The finding concerning the existence of the agreement in question is based on thefollowing documents:

—    the fax of 21 June 1988 from Saarstahl to the Walzstahl-Vereinigung(document no 4);

—    the fax of 22 June 1988 from the Walzstahl-Vereinigung to the PoutrellesCommittee secretariat (document no 5);

—    the telex of 28 June 1988 from Ferdofin to Peine-Salzgitter (documentno 4084); and

—    the telex of 4 August 1988 from Ferdofin to Peine-Salzgitter (documentno 4085).

417.

    According to the fax of 21 June 1988 from Saarstahl to the Walzstahl-Vereinigung(recital 167 of the Decision, document no 4), the Eurofer undertakings declaredthat they were prepared to continue for the third quarter of 1988 the 'agreementson quantities‘ reached in regard to the Italian market for the previous quarter. Inthe absence of indications to the contrary, this must be construed as a reference tothe market-sharing agreement concluded for the previous quarter (see recitals 275,fourth indent, 163 and 164 of the Decision), the existence of which has not beendisputed by the applicant. Similarly, the fax of 22 June 1988 from the Walzstahl-Vereinigung to the Poutrelles Committee secretariat (recital 167 of the Decision,document no 5) states that a 'decision‘ had been adopted the previous day. Thatfax refers to certain order figures for Peine-Salzgitter, Thyssen and Saarstahl for thethird quarter of 1988.

418.

    The conclusion of the agreement is also confirmed by the telex of 28 June 1988from Ferdofin to Peine-Salzgitter (recital 167 of the Decision, document no 4084),in which Ferdofin states that 'the third quarter quotas must on no account beincreased‘. Finally, the telex of 4 August 1988 from Ferdofin to Peine-Salzgitter(document no 4085, point 8) allows the conclusion to be drawn that there was aquota in excess of 2 000 tonnes in favour of Saarstahl for the quarter in question.

419.

    Although the abovementioned documents prove the existence of the disputedagreement concerning the quotas applicable to the Italian market for the thirdquarter of 1988, the Court finds that the evidence of the applicant's participationin that agreement is insufficient. The Commission has not challenged the claimthat the applicant did not attend any meeting concerning the Italian market in June1988. Furthermore, the documents relied on by the Commission do not refer tothe applicant. In those circumstances, the sole fact that the applicant was party toan earlier agreement concerning the second quarter of 1988 and that the Saarstahltelex of 21 June 1988 refers to 'Eurofer plants‘ cannot suffice to establish that the

applicant participated in the agreement in question. Article 1 of the Decision musttherefore be annulled to that extent.

3. Market-sharing agreement between British Steel, Ensidesa and Aristrain

420.

    In recitals 172 to 174 (facts) and recital 276 (law) of the Decision, the Commissionrefers to an agreement concluded on an unspecified date in early 1990, by whichthe applicant undertook to limit its sales in Spain, and to price increases agreedbetween the applicant, Ensidesa and Aristrain for the first quarter of 1991. Article 1 of the Decision takes into account, for the purpose of calculating thefines, a market-sharing agreement lasting eight months in regard to those threeundertakings.

Arguments of the applicant

421.

    The applicant does not deny that in the spring of 1990 it decided to limit its salesto Spain to 18 000 tonnes and that it informed Ensidesa to that effect. Itmaintains, however, that this was a unilateral business decision.

422.

    The reasons for that decision were twofold. First, the applicant was aware that,throughout the period in question, the Spanish Government was concerned aboutthe danger to the indigenous steel industry arising from the increase in importsfrom the rest of the Community and proposed acquisitions in Spain by producersfrom other countries, particularly as regards Aristrain (see document 3 in Appendix5 to the application). Thus the applicant was concerned that, if it did not appearto limit its sales to Spain, its activities in that market, particularly as regards itspossible acquisition of Aristrain, would be blocked at political level. It thereforeused the Spanish State-owned producer Ensidesa as a conduit through which itindicated to the Spanish Government its willingness to limit its deliveries to anacceptable level. Second, the applicant was faced with production constraints asa result of the modernisation of its Teesside mill. In the spring of 1990, thinkingthat it would be unable to meet demand in all its markets, it decided to cut backon its sales in markets where prices were low, such as Spain. Once those technicalproduction constraints disappeared, the applicant reviewed that decision, and in thelast two quarters of 1990 its sales in Spain in fact amounted to 32 000 tonnes.

423.

    According to the applicant, neither the fact that, for political reasons, itcommunicated its decision to the Spanish producers nor the fact that a confidentialnote from the Poutrelles Committee secretariat states that there was an agreementchanges the unilateral nature of that business decision.

424.

    In the alternative, should there be grounds for considering that there was indeedan agreement between it and the Spanish producers, the applicant maintains thatthat agreement did not tend to restrict competition, since its production constraints

would in any event have prevented it from delivering more than the 18 000 tonneswhich it intended to deliver.

Findings of the Court

425.

    The documents referred to in recitals 172 and 173 of the Decision deal with theconclusion of an agreement between the applicant, Ensidesa and Aristrain at a datebetween 25 April and 16 May 1990 designed to limit interpenetration of Spanishand United Kingdom producers on their respective national markets and to raiseprices in Spain and the United Kingdom. The object of that agreement and itscontext are set out clearly in the applicant's two internal notes mentioned in recital172 of the Decision.

426.

    The first of those notes (documents nos 1993 and 1994 on the file), draftedfollowing a meeting in Madrid on 14 September 1988 between the principalcommercial representatives of Ensidesa, Aristrain and the applicant (the names ofwhom it includes), refers, in the first place, to 'major disruptions‘ on the UnitedKingdom market, occasioned primarily by the increase in Aristrain's sales on thatmarket since 1985, and the applicant's retaliatory sales on the Spanish market, and,second, to mutual complaints concerning the level of the applicant's prices in Spainand Spanish producers' prices in the United Kingdom. Reference is also made toa proposal by the applicant that the three undertakings 'should agree‘ to 'startafresh for 1989‘ by fixing equal tonnages (20 000 tonnes per annum) from theUnited Kingdom to Spain and from Spain to the United Kingdom. According tothe note, Ensidesa favoured the agreement but Aristrain was not yet ready for it.

427.

    The applicant's second internal note (documents nos 1973 and 1974 on the file)comprises the minutes of the meeting held in Madrid on 25 April 1990. Althoughit does not include a list of participants, it is clear that it concerned the threeundertakings in question. The name of Mr Zabalegui, Aristrain's commercialdirector (see document no 1993) is also mentioned there. This note gives anaccount of the continuation of the negotiations started in September 1988. Itsauthor states that he pointed out to his interlocutors that 'the ”battle” between[the applicant] and Spain was well known by other Eurofer producers and causedsome anxiety in case it spread to their markets — there was a possibility that if wesaid to other Eurofer producers we are looking to establish peace, if they undertakenot to enter Spain and disturb the process, they would agree‘. The author of thenote indicates that the applicant could use its influence with Eurofer to that end. He also sets out the technical details of an agreement to limit quantities which heproposed to his interlocutors, stressing to them the advantages for the two sides,particularly in terms of price rises on their respective national markets (estimatedat PTA 2/kg, or UK £10/tonne in Spain, and UK £1/tonne in the United Kingdom). He indicates that this proposal was unable to find acceptance, adding that 'bothsides are to review position. I pointed out, however, that if we wanted to persuade

the rest of Eurofer to underwrite and support any ”peace” deal, it would be neededsooner, rather than later. This they accepted, and proposed a further discussionbefore the 16th May, when [the Poutrelles Committee] meets‘.

428.

    The note of 18 May 1990 from Usinor Sacilor, drawn up by the PoutrellesCommittee secretariat following the Committee's meeting in Milan on 16 May 1990(document no 2266 on the file) reveals that an agreement was indeed concludedbetween the applicant and the Spanish producers between 25 April and 16 May1990. In the minutes of the meeting, it states that:

'Interpenetrations have been noted. Each side is calling for a return to traditionaltrade flows.

It was pointed out during the meeting that [the applicant] and the Spaniards hadconcluded an agreement under which ”each was to stay on his home patch”, theobjective being to raise prices in Spain and the United Kingdom.

Ensidesa suggested extending this agreement to all Eurofer companies. Participants are asked not to take advantage of this ”Anglo-Hispanic” truce byincreasing their deliveries to Spain‘.

429.

    The Court finds that these documents prove that the applicant participated in theinfringement in question and that they suffice to dispel all alternative explanationsof an economic or political nature put forward by the applicant. Not only do thoseexplanations not figure in the documents in question, which were drafted in temporenon suspecto, but those documents show clearly that the parties' sole objective wasto bring an end to the commercial war which had been continuing between themfor several years by limiting interpenetrations on their respective markets andthereby making it possible to raise prices. The Court notes that those documentsrefer to a 'peace deal‘ and to an 'Anglo-Hispanic truce‘, and that Ensidesaproposed that the agreement be extended to all Eurofer companies in theframework of a discussion on a 'return to traditional trade flows‘ within thePoutrelles Committee.

430.

    The abovementioned documents also establish that what was involved was notunilateral and independent conduct on the applicant's part but an agreementbetween the three undertakings concerned.

431.

    It follows that the Commission has duly proved that a tripartite agreement wasconcluded between the applicant, Aristrain and Ensidesa between 25 April and16 May 1990 for the purpose of limiting interpenetration of Spanish and UnitedKingdom producers on their respective national markets and to raise prices inSpain and the United Kingdom.

432.

    It is also established that this agreement was applied and maintained in force, bythe three undertakings which were parties to it, until at least the end of 1990. The

proof that the agreement applied for that period derives from the exchange oftelexes of 17 September and 3 October 1990 between Ensidesa and the applicant(see documents nos 2175 and 2176 on the file, mentioned in recital 174 of theDecision), which reveals that, under the terms of the 'agreement‘, the applicanthad accepted a limitation on its sales on the Spanish market to 18 000 tonnes untilthe end of 1990, and that it confirmed to Ensidesa that it would abide by thatlimitation.

433.

    The Commission thus rightly found that the undertakings in question had infringedArticle 65(1) of the Treaty and rightly imposed on them a fine for having beenparties to a market-sharing agreement for a period of eight months, from May 1990to December 1990.

4. Market-sharing agreement between British Steel and Ferdofin

434.

    In recitals 175 to 176 (facts) and recital 277 (law) of the Decision, the Commissionrefers to an agreement between the applicant and Ferdofin by which the latterundertook not to sell on the United Kingdom market. Article 1 of the Decisiontakes into account, for the purpose of calculating the fine, a market-sharingagreement lasting 30 months.

435.

    The applicant maintains that the evidence relied on by the Commission does notbear out the existence of any such agreement. Furthermore, the Commission hasfailed to take into account evidence adduced by the applicant which explains thedocuments relied on in context.

436.

    The 'relationship‘ mentioned in the applicant's internal note of 11 November 1987is not an agreement concerning sales of beams by Ferdofin in the United Kingdombut refers to the business relationship between the applicant and Ferdofin. Theapplicant states that, at the time, it was assisting Ferdofin in a number of ways, inparticular by purchasing from it quotas for the Italian market, and that it wasconsidering the possibility of cooperation in areas such as the acquisition of ashareholding in Ferdofin. Discussions on those issues were continuing throughoutthe period from 1988 to 1990. In that context, the note of 11 November 1987relied on by the Commission is not evidence of any arrangement or agreementwhatever between the two companies, but merely an expression of the view thattheir business relationship had an effect on Ferdofin's unilateral business decisionregarding sales in the United Kingdom.

437.

    Nor, it is argued, does the Commission have any evidence to support its contentionthat the arrangement continued until 1990. In that regard, the opinion expressedin the applicant's letter to Ferdofin of 4 January 1991, stating that, in thecircumstances, it would not be a good time to enter the United Kingdom market,is not evidence that an agreement was concluded. Ferdofin remained free to make

its own decisions in that regard, and its decision not to sell to the United Kingdomin 1990 was in fact based on a number of technical and economic factors, inparticular the prospect of having to make substantial investments in order topenetrate that market, at a time when demand was low.

438.

    The defendant finds the applicant's arguments neither convincing nor plausible. The applicant's internal memorandum of 11 November 1987 shows that theapplicant attributed the lack of sales by Ferdofin in the United Kingdom exclusivelyto the relationship between the two undertakings, and does not in any way provethat Ferdofin had taken a unilateral decision to stay out of the United Kingdommarket. The Commission asserts that there is no point in an undertakingestablishing a relationship which influences the sales decisions of anotherundertaking if the latter undertaking is in fact incapable of selling in the former'smarket.

Findings of the Court

439.

    The finding concerning the existence of the agreement in question is based on thefollowing documents:

—    an internal note of the applicant of 11 November 1987 (document no 1916),which states that 'so far we have succeeded in forming a relationship with... Ferdofin, which has enabled us to establish BSC sales in Italy withoutretaliation in UK ...‘;

—    a letter of 4 January 1991 from the applicant to Ferdofin (documents nos1894 and 1895) summarising the main points discussed at a meeting held inVenice on 6 and 7 December 1990 between representatives of those twocompanies, which states, with regard to beams: 'Whilst British Steel hasused its good offices where appropriate to assist Ferdofin increase its shareof the Italian beam market and other markets, it was agreed that it was amost inappropriate time for Ferdofin to supply these to the UK market. This matter will be kept under review and would be on the agenda for ournext meeting‘;

—    an internal note of the applicant of 14 December 1990 concerning theVenice meeting of 6 and 7 December 1990, accompanied by the draft of itsabovementioned letter of 4 January 1991 to Ferdofin (documents nos 1896to 1900).

In recital 175 of the Decision, the Commission also relies on the fact that Ferdofindid not export to the United Kingdom between the fourth quarter of 1987 and thethird quarter of 1990.

440.

    According to the wording of the applicant's note of 11 November 1987, there wasat that time a 'relationship‘ between Ferdofin and the applicant which had allowedthe latter to sell its products in Italy 'without retaliation in UK‘. In the Court'sview, that note proves that there was an agreement between the parties underwhich Ferdofin would not sell its products on the United Kingdom market, at leastnot in an aggressive manner.

441.

    The existence, during the period in question, of commercial relations between theparties, under which the applicant assisted Ferdofin, does not in itself suffice toestablish that there was a 'unilateral‘ decision by Ferdofin to limit its sales on theUnited Kingdom market, as the applicant contends, but tends rather to confirmthat there was, within the context of a wider commercial relationship, an agreementbetween them. Apart from mere assertions, the applicant has not adduced anyconcrete evidence that this was an independent and unilateral decision onFerdofin's part not to sell in the United Kingdom, or that Ferdofin had anylegitimate commercial interest in adopting such a decision.

442.

    Given that, according to the applicant itself, this commercial relationship betweenthe parties lasted throughout the period from 1988 to 1990, it must, in the absenceof evidence to the contrary, be assumed that the agreement in question existedduring that same period.

443.

    This analysis is corroborated by the applicant's letter of 4 January 1991, whichshows that there was a consensus between it and Ferdofin, expressed at themeeting between the two undertakings on 6 and 7 December 1990, that it wouldbe 'inappropriate‘ for the latter to sell, on the domestic market of the former,products in respect of which they were potential competitors. Whatever may havebeen the extent and the legality of their cooperation in other respects, relied on bythe applicant, such an exchange of views between competitors, pushed to the pointof consensus, must be considered an agreement between undertakings within themeaning of Article 65(1) of the Treaty.

444.

    Moreover, the applicant's explanations that various technical and economic factorsin any case prevented Ferdofin from selling beams in the United Kingdom duringthe period in question are entirely unsupported. If this contention of the applicantwere well founded, the two undertakings would have had no need whatever todiscuss the question whether such sales would be 'appropriate‘, and even less needto re-enter this issue in the agenda for one of their forthcoming meetings.

445.

    The Court's conclusion is corroborated by the different wording of the draft of theletter of 4 January 1991, annexed to the applicant's internal note of 14 December1990 (documents nos 1898 and 1899): 'Whilst British Steel has used its good officeswhere appropriate to assist Ferdofin increase its share of the Italian beam marketand others, it was agreed that it was not yet prepared for Ferdofin to supply theseto the UK market. This matter will be kept under review and would be on the

agenda for our next meeting‘. Apart from the fact that it confirms themaintenance of an anti-competitive agreement, this document indicates that themain obstacle to Ferdofin's entry to the United Kingdom market was not theeconomic cost or technical difficulty of such an operation for Ferdofin, but ratherthe applicant's state of 'unpreparedness‘ for such a prospect.

446.

    Regarding the statistics on the Court's file relating to Ferdofin's sales in the UnitedKingdom, a table dated 5 December 1989 drawn up by Peine-Salzgitter and settingout the percentages of eight undertakings, including Ferdofin, of the quantitieshandled by undertakings belonging to Eurofer on the basis of the monitoring oforders registered during the various quarters of 1987, 1988 and 1989 (documentsnos 3436 and 3437) indicates that Ferdofin's share of orders relating to the UnitedKingdom market was at all times equivalent to zero, except for the third quarterof 1987, when its share came to 0.1% of orders received by Eurofer membersrelating to the United Kingdom market.

447.

    Likewise, a table detailing exports prepared by Peine-Salzgitter on the basis of themonitorings for 1988 and the first three quarters of 1989 (document no 3375) showsthat Ferdofin did not export to the United Kingdom during that period. A tableof 1 March 1990, prepared by the Poutrelles Committee secretariat (documentno 3403) similarly indicates that Ferdofin did not export to the United Kingdommarket in 1989 (see also, for example, documents nos 3467, 3468, 3473 and 3474). Several tables of this kind demonstrate that the same applies with regard to thefirst three quarters of 1990 (see documents nos 1729, 1730, 2708, 2709, 3327, 3329,3331, 3338, 3339 and 3353).

448.

    A Eurofer table found on the premises of Usinor-Sacilor, setting out Eurofercompany deliveries to the United Kingdom market from 1986 to the second quarterof 1990 (document no 2614) indicates that Ferdofin delivered to that market 248tonnes/month in 1986, 62 tonnes/month in 1987, nothing in 1988 or for the first twoquarters of 1989, 215 tonnes/month for the third quarter of 1989, 24 tonnes/monthfor the fourth quarter of 1989, and once again nothing for the first half of 1990.

449.

    A table entitled 'Eurofer deliveries — UK‘ discovered on the applicant's premises,which sets out Eurofer company deliveries to the United Kingdom market from1986 to 1989 (document no 1874) indicates that Ferdofin delivered to that market742 tonnes/quarter in 1986, 187 tonnes/quarter in 1987, nothing in 1988 or for thefirst two quarters of 1989, 644 tonnes/quarter for the third quarter of 1989, and 72tonnes/quarter for the fourth quarter of 1989.

450.

    It follows from those documents that Ferdofin did not export beams to the UnitedKingdom in 1988, during the first two quarters of 1989, or in 1990. Even were ittrue that, contrary to what appears from the monitoring figures, Ferdofin exportedapproximately 720 tonnes to the United Kingdom during the third and fourthquarters of 1989, these quantities represented less than 0.1% of the UnitedKingdom market in that period (see table 10 of the Decision).

451.

    The statistics, considered in their entirety, thus corroborate the Commission'sargument that there was an agreement between the applicant and Ferdofin underwhich the latter was to limit its exports to the United Kingdom.

452.

    It follows that the agreement with Ferdofin of which the applicant is accused inrecital 277 of the Decision has been proved.

Price-fixing on the Danish market, within the framework of the activities of theEurofer/Scandinavia group

453.

    Article 1 of the Decision alleges participation by the applicant in an infringementinvolving price-fixing on the Danish market. A 30-month period was taken intoaccount for the purpose of imposing the fine.

454.

    The grounds on which this charge is based are set out in recitals 177 to 209 (inregard to the facts) and recitals 284 to 296 (in regard to the law) of the Decision. Basing its charge primarily on the minutes of meetings, the Commission describesa course of conduct which it characterises as agreements to fix target prices for theScandinavian markets, allegedly concluded from one quarter to the next duringmeetings of the Eurofer/Scandinavia group, on the basis of a single continuingframework agreement (recitals 288, 289, 291 and 294). In so far as thoseagreements concern the Danish market, the Commission takes the view that theycome within Article 65(1) of the Treaty (recitals 286, 287, 292 and 293).

455.

    Referring to recitals 284, 286 and 287 of the Decision, the applicant denies that theevidence relied on by the Commission in support of its argument that prices werefixed in 1989 and 1990 has any probative value. The documents on which theCommission relies merely indicate that discussions took place concerning priceforecasts, which remained constant in 1989 and 1990.

456.

    Furthermore, there is no evidence that the Danish market was discussed at themeeting on 31 October 1990 (see recital 209 of the Decision); consequently, theCommission's finding that the 'agreement‘ continued after that date is completelyunsupported. There is no evidence in that regard that the undated table referredto in recital 209 of the Decision was circulated to the producers; this is consistentwith the fact that the situation in the Danish market was not discussed during themeeting in question.

457.

    The applicant also takes issue with the Commission's conclusion, set out inparticular in recital 292 of the Decision, that the parties which attended themeetings of the Eurofer/Scandinavia group had as their 'basic purpose ... to agreeon prices to be charged for deliveries to the Danish market‘. According to theapplicant, the purpose of those meetings was to inform the Scandinavian companies

of the prices in force on the ECSC markets, with a view to ensuring that theywould comply with those prices when selling in the Community and vice versa.

458.

    The applicant points out in this regard that, from the 1970s, the Communityconcluded a series of bilateral agreements with Sweden, Finland and Norwaydesigned to stabilise imports at their traditional levels while incorporating themwithin Community price discipline. Under those agreements, the ScandinavianGovernments undertook to apply on their territory and to their exports to theCommunity the price rules in force within the ECSC pursuant to Article 60 of theTreaty; likewise, the Community undertook to extend application of the regulationsbased on Article 60 to transactions by ECSC steel producers on the Scandinavianmarkets.

459.

    In order to facilitate the application of those agreements and ensure pricetransparency, having regard to the way in which alignment rules operated inpractice, Community and Scandinavian producers needed to collect and exchangeinformation on market prices and future price intentions on their respectivemarkets. The applicant adds that, for historical reasons, Denmark continued to beregarded as belonging to the Scandinavian market, even after its accession to theECSC.

460.

    Furthermore, in a joint submission at the hearing, the applicants argued, referringto a number of documents concerning the contacts established between theCommission's DG I and the Scandinavian authorities, forwarded to the Court underArticle 23 and placed on the case-file following the order of 10 December 1997, aswell as to the documents lodged at the hearing relating to the 'arrangements‘between the Community, on the one hand, and Norway, Sweden and Finland, onthe other (paragraph 15 above), that both the Commission and the Scandinavianauthorities were aware of the activities of the Eurofer/Scandinavia group and evenencouraged them, since those activities were essential for implementation of those'arrangements‘. In those circumstances, according to the applicant, there cannothave been any infringement of Article 65(1) of the Treaty in that regard.

461.

    The Court finds, in the first place, that the documents cited in recitals 184 to 209of the Decision, that is to say the minutes and other documents relating to themeetings of 5 February 1986, 22 April 1986, 30 July 1986, 28 October 1986,3 February 1987, 28 April 1987, 4 August 1987, 4 November 1987, 2 February 1988,25 July 1988, 3 November 1988, 1 February 1989, 25 April 1989, 31 July 1989,30 October 1989, 31 January 1990, 24 April 1990, 31 July 1990 and 31 October1990, prove that there was a system of meetings at which agreements on the targetprices applicable in Denmark between 5 February 1986 and 31 October 1990 wereconcluded.

462.

    In particular, the Court observes that there are several documents which refer tothe 'programmation‘ of prices (recitals 184, 192, 193 and 195), to the 'fixing‘ ofprices or to prices which have been 'fixed‘, 'decided‘ or 'agreed‘ (recitals 184,

186, 187, 189, 190, 191, 192, 200, 201 and 204). The Court also observes that thereare several documents which refer to the prices which were to 'remain the same‘or 'remain unchanged‘ (recitals 204, 205, 207 and 208), proposals to be discussedduring a forthcoming meeting (recital 199), requests made to undertakings torefrain from quoting prices to customers prior to a forthcoming meeting (recitals198 and 201), information on pricing decisions taken during certain meetings(recitals 187, 188, 189, 190, 191, 197 and 205), and information on the attainmentof the prices decided on during an earlier meeting (recitals 184, 193, 195, 200, 202,203 and 204 of the Decision).

463.

    By way of illustration, the Court takes the view that the tenor of the meetings heldby the Eurofer/Scandinavian group is amply confirmed by the note of 1 February1990 from the chairman of that group, quoted in recital 206 of the Decision:

'(...) To date, we have had positive reactions to our meetings and a number ofrepresentatives for other products are even envious of our club's results andunderstanding.

I am not saying this for nothing, for during the first quarter not everyone played thegame, especially in the merchant bar sector. In view of this I am asking you, asrepresentatives of the Eurofer/Scandinavia club, and for the good of ourcompanies, to do your utmost so that we can leave this room with the firm resolveto stabilise the market and thereby save the honour of our club.‘

464.

    In light of the foregoing, the applicant's argument that, in 1989 and 1990, theundertakings confined themselves to discussing the market situation and priceforecasts and, more generally, exchanging information, cannot be accepted.

465.

    The Court considers that the applicant's participation in the agreements concludedwithin the Eurofer/Scandinavia group is sufficiently established in recitals 285, 180and 181 of the Decision. It is clear from those recitals that the applicant took partin all the meetings of that group, except for those held on 4 November 1987 and2 February 1988. According to the grounds of the Decision, all of the participatingundertakings stand accused of the activities of that group (recitals 287 and 289 ofthe Decision). The only distinction relates to the degree to which the undertakingsaffiliated to Eurofer and the Scandinavian producers were responsible (recitals 294and 295 of the Decision).

466.

    The applicant has not denied that it attended the Eurofer/Scandinavia meeting heldin Milan on 31 October 1990. It appears from document no 2728 that the pricesof beams featured on the agenda for that meeting. It also appears from documentno 2697 that the secretariat of the Eurofer/Scandinavia group drew up a detailedtable entitled 'Calculation of prices for the first quarter of 1991 (ECSC mills)‘,which provides, inter alia, the prices for the Danish market. In those circumstances,

the Court takes the view that the Commission has proved that theEurofer/Scandinavia agreements lasted until the end of 1990.

467.

    The agreements in question related to the fixing of prices, within the meaning ofArticle 65(1)(a) of the Treaty, and were thus prohibited by that provision.

468.

    The fact that the free-trade agreements between the Community and theScandinavian countries contained provisions similar to those of Article 60 of theTreaty is irrelevant for the reasons already set out above.

469.

    As for the applicant's submissions based on the knowledge which DG I had, orought to have had, of the activities of the Eurofer/Scandinavia group within thecontext of the 'arrangements‘ then in force between the Community and Norway,Sweden and Finland, the Court notes, at the outset, that documents nos 9773 to9787, which were placed on the file pursuant to the order of 10 December 1997,are matters which came to light in the course of the procedure, with the result thatArticle 48(2) of the Court's Rules of Procedure does not prevent the applicantfrom introducing new pleas in law based on those documents.

470.

    With regard first, in this connection, to the period from 1986 to 1988, it followsfrom the letters and memoranda between the Community and the Norwegian,Swedish and Finnish authorities that, during that period, certain 'arrangements‘designed to maintain traditional trade flows were in force between the partiesconcerned (see point (c) of the letters exchanged with Norway on 4 March 1986,11 March 1987 and 10 February 1988; point (c) of the letters exchanged withFinland on 4 March 1986, 10 April 1987 and 12 February 1988; points 13 to 15 ofthe letter of 4 March 1986 and points 8 to 10 of the letters of 13 February 1987and 5 February 1988 exchanged with Sweden). According to recital V.10 of theStainless Steel decision, this meant in practice that exports from the Scandinaviansteel producers to the Community had to be maintained at previous levels and thatno variations were allowed in regional distribution, product-mix or timing ('tripleclause‘).

471.

    The Court has more particularly examined the following: the Commission'scommunication to the Council of 13 November 1986 on external commercial policyin the steel sector (COM(86) 585 final, lodged by the applicants at the hearing); afile note of 30 May 1985 (document no 9774) detailing a meeting of 29 May 1985with the Swedish authorities concerning certain Swedish deliveries of iron and steelbars to Denmark, and indicating that a representative of DG I had used theoccasion to draw the Swedish authorities' attention to the Community's interest inmaintaining the 'gentlemen's agreement‘ between Eurofer and the Swedish forgeassociation in order to guarantee the smooth development of trade in steelproducts between the Community and Sweden; the memorandum of 30 May 1985produced during the administrative procedure by the Swedish undertakings OvakoProfiler AB and SSAB Svenskt Stål AB, contained in the file submitted to theCourt under Article 23 and to which the parties were granted access by the order

of 10 June 1996; the manuscript note of a meeting between DG I and the Swedishauthorities which apparently took place on 4 December 1985 or 1986; the note ofa consultation meeting between the Community and Swedish authorities held on20 November 1986 (documents nos 9777 to 9784); and the note of a meeting of the'Contact Group ECSC-Sweden‘ held on 11 and 12 June 1987.

472.

    In view of what is revealed by those documents, the Court concludes, first, that itcannot be excluded that the Eurofer/Scandinavia group's activities had their originin the preoccupation shared by the Community and Scandinavian authorities tolimit exports of steel products to their traditional level, within the context of theabovementioned 'arrangements‘. It is clear from the file that this objective couldnot have been achieved without the cooperation of the undertakings concerned,particularly within the context of the 'gentlemen's agreements‘ concluded betweenthe undertakings belonging to Eurofer and the Scandinavian steel undertakings.

473.

    Second, it is also evident from the file that both the Community authorities and theScandinavian authorities encouraged the conclusion of such 'gentlemen'sagreements‘ or, at the very least, direct contacts between the undertakingsconcerned, with a view to resolving the problems arising under those arrangements. Moreover, in recital X.12(a) of the Stainless Steel decision, the Commissionexpressly admitted that those arrangements had limited the freedom of theundertakings in question to sell the desired tonnages and that DG I had, throughan exchange of correspondence, indirectly encouraged the Scandinavianundertakings to conclude a number of bilateral agreements with the Communityundertakings.

474.

    The arrangements in question admittedly did not constitute pricing agreements butsimply limited tonnages. However, in view of the fact that, in the first place, theDanish market was at the time regarded as traditionally forming part of theScandinavian steel market and, second, that undercutting of prices had the effectof increasing the tonnages sold, the possibility cannot be discounted that the priceagreements for the Danish market concluded within the Eurofer/Scandinavia groupwere conceived, at least in part, as an appropriate support for the arrangementsconcluded between the Commission and the Scandinavian countries in question forthe years 1986, 1987 and 1988, for the purpose of maintaining traditional tradeflows.

475.

    It must, however, be borne in mind that there is no provision in the Treaty whichauthorises such pricing agreements and that neither the Council, the Commissionnor the undertakings may ignore the provisions of Article 65(1) of the Treaty orexempt themselves from their obligation to comply with them.

476.

    It follows that, even on the assumption that the price agreements concluded withinthe Eurofer/Scandinavia group during 1986, 1987 and 1988 were concluded underthe arrangements limiting trade between the Community and the Scandinavian

countries and that the Commission and/or the Scandinavian authorities encouragedor tolerated them, at least indirectly, those agreements none the less infringedArticle 65(1) of the Treaty in so far as they fixed prices on the Danish market.

477.

    However, since the arrangements in question between the Community and theScandinavian countries were maintained in force up to 31 December 1988, themisunderstandings which, according to the Decision (recital 311), may have existedprior to 30 June 1988, could have lasted, so far as the Eurofer/Scandinaviaagreements are concerned, up to at least 31 December 1988. This matter will betaken into consideration by the Court when fixing the fine.

478.

    So far as the period after 31 December 1988 is concerned, it appears from theCommission's letters of 5 April 1989 to the Norwegian authorities and of 4 April1989 and 28 May 1990 to the Swedish authorities, which were produced by thedefendant, at the Court's request, under cover of a letter of 11 May 1998, that after1 January 1989 there was no longer any measure designed to maintain traditionaltrade flows between the Community and the countries concerned. It follows that,in any event, there was no justification, from 1 January 1989, for the undertakingsin question to conclude between themselves private agreements to fix prices on theDanish market. The fact that the abovementioned arrangements between theCommunity and the Scandinavian countries for 1989 and 1990 contained provisionsunder which the parties were to consult each other in the event of marketdisturbances cannot invalidate that conclusion.

479.

    Finally, with regard to document no 9323 of 17 June 1989, relied on by theapplicants at the hearing, the Court finds that this relates to a complaint by theBelgian authorities in regard to an alleged infringement by certain Norwegianundertakings of Article 60 of the Treaty, applicable to the products in question byvirtue of Article 20 of the free-trade agreement between Norway and theCommunity, and that it therefore has nothing to do with the infringement of whichthe applicant stands accused within the context of the Eurofer/Scandinaviaagreements.

480.

    In those circumstances, the applicant's arguments concerning the finding, in theDecision, that there were agreements to fix prices on the Danish market must berejected.

Conclusions

481.

    Subject to the Court's findings set out in paragraphs 170, 419, 452 and 477 above,and the argument examined in Part D below, examination of the arguments alleginginfringement of Article 65(1) of the Treaty has failed to show that the Commissioncommitted any error of fact or law in finding that the infringements of that articleset out in the Decision and disputed by the applicant had been committed. Likewise, the Court's examination has not revealed any deficient statement of

reasons, in particular with regard to the role which the applicant played in theinfringements.

482.

    It follows that those arguments must be rejected in their entirety.

D —    The Commission's involvement in the infringements of which the applicant isaccused

Summary of the applicant's arguments

483.

    The applicant submits in its application that, during the whole of the periodcovered by the Decision, DG III had requested and obtained from the undertakingsinformation which those undertakings could collate only through exchanginginformation within the Poutrelles Committee and their associations. TheCommission, it claims, was aware of these activities, which, ultimately, wereattributable to its own initiative. The applicant accordingly takes the view thatthose activities cannot constitute infringements of Article 65(1) of the Treaty.

484.

    In view of the fact that similar pleas were raised by other applicants, the roleplayed by DG III in the present context was the subject of joint submissions at thehearing. The applicant thus adopted the argument on this point set out on behalfof the applicants concerned. It is for that reason necessary to regroup those pleasand arguments in order to examine them together for the purposes of the presentjudgment.

485.

    After going through the Commission's involvement in managing the crisis in thesteel industry since the 1970s and its interventions after the end of the crisis period,the applicants advance an argument that the Commission itself initiated and thenencouraged, or at least had knowledge of and tolerated, the conduct impugned inthe Decision.

486.

    The applicants plead, in varying degrees, that the Decision breaches the principlesof legal certainty and the protection of legitimate expectations, the doctrine ofestoppel or the maxim nemo auditur turpitudinem suam allegans, and submit that,in those circumstances, the Commission was not entitled to penalise the conductof the undertakings referred to in the Decision.

487.

    As regards the crisis period, the applicants first refer to the various measuresadopted by the Commission from 1974 pursuant to Articles 46, 47 and 58 et seq.of the Treaty for coping with the crisis in the European steel industry. They referin particular to the 1977 Simonet Plan, the 1978 Davignon Plan, and later DecisionNo 2794/80 imposing a mandatory system of production quotas, as well as itsvarious accompanying measures (see paragraph 5 et seq. above).

488.

    More particularly, they argue that the quota system introduced by DecisionNo 2794/80 was conceived from the outset as part of a much larger whole, basedon horizontal collaboration between undertakings, particularly with regard to theintroduction of national 'i‘ quotas which the Commission wished to see applied bythe producers in order to implement its own 'I‘ quota system envisaged atCommunity level.

489.

    The Eurofer association was, on that occasion, the main interface between theCommission and the producers, particularly within the context of the Eurofer II toEurofer V agreements, which, during the entire manifest crisis regime and until July1988, consisted essentially in establishing and managing the system of 'i‘ deliveryquotas on the national markets, as well as in the provision of production anddelivery data. The Eurofer agreements also provided for the participants toundertake to comply with the price objectives fixed in coordination with theCommission.

490.

    The applicants also point out that exchanges of information were currentthroughout the steel sector since the onset of the crisis, and they refer to thecircumstances underlying Case 27/84 Wirtschaftsvereinigung Eisen- und Stahlindustriev Commission [1985] ECR 2385, in which the Commission acknowledged that sometransparency was already current among the major steel undertakings belonging toEurofer, with the result that some of the information deriving from the latter wasnot covered by professional secrecy within the meaning of Article 47 of the Treaty.

491.

    So far as the crisis period is concerned, the applicants base their case morespecifically on extracts from the following documents, some of which are cited inparagraph 5 et seq. above: the Commission request for the Council's assent to theestablishment of a system of production quotas for the steel industry (COM(80) 586final, application, appendix 3, document 3); the Council resolution of 3 March 1981on the steel recovery policy (see the Council's press release of 26 and 27 March1981, application, appendix 3, document 4); annex IV to Commission DocumentIII/534/85/FR approving the Eurofer agreements (application, appendix 3,document 5); the letter sent to Eurofer on 17 January 1983 by Mr Andriessen andMr Davignon (application, appendix 3, document 6); the reply of 8 February 1983from Mr Etchegaray, the chairman of Eurofer, to Mr Andriessen and Mr Davignon(application, appendix 3, document 7); above Decision No 3483/82; point 302 of theXIXth General Report on the Activities of the Communities; above DecisionNo 234/84; the minutes of a meeting held in Brussels on 27 June 1984 between theCommission and Eurofer experts (application, appendix 3, document 8); a notedrafted by Eurofer following a meeting between Commission Member Narjes andthe chairmen of Eurofer held in Düsseldorf on 26 September 1985 (application,appendix 3, document 9); the minutes of a meeting held on 16 December 1985between Mr Narjes and Eurofer (application, appendix 3, document 10); variousletters highlighting the Commission's involvement in resolving disputes betweenproducers concerning the system of 'i‘ quotas (application, appendix 3, documents11 and 12); the minutes of the meeting of 10 March 1986 between Mr Narjes and

Eurofer (application, appendix 3, document 13); the report of the 'Three WiseMen‘, cited above; the minutes of the meeting held on 16 May 1986 between MrNarjes and Eurofer management (application, appendix 3, document 14); and theCommission's abovementioned communication of 16 June 1988 to the Council onsteel policy.

492.

    Although the manifest crisis regime came to an end on 30 June 1988, the XXIstGeneral Report on the Activities of the Communities indicates, at point 278, that theCommission was prepared to envisage, for three years as from 1 January 1988, anextension of the quota system and the implementation of a concerted plan toreduce capacities, suggested by Eurofer at the end of 1986. However, since theCommission did not receive the minimum commitments on closures laid down inDecember 1987 as a precondition for any extension of the system, it did notpropose to the Council that it be extended. From this the applicants infer that thequota system was terminated in July 1988 not because the Commission consideredthat there was no longer any manifest crisis but in order to penalise theundertakings for their lack of collaboration. Those facts also show that in mid-1988the Commission took the view that it was not contrary to Article 65 of the Treatyto request undertakings to conclude an agreement relating to a concerted reductionin their capacities, which none the less was every bit as prohibited as measuresrelating to prices, if the rigid interpretation of that article advocated in the Decisionwere followed. The Commission thus accepted that Article 65(1) of the Treatycould be flexibly applied.

493.

    So far as the period after 30 June 1988 is concerned, the Commission maintained,up to November 1988, the system for monitoring deliveries established by DecisionNo 3483/82. It also adopted the surveillance system established by DecisionNo 2448/88, by which undertakings were required to make a monthly declarationof the production and delivery of certain of their products. The validity of thatdecision expired in June 1990, but the situation in real terms was not amended, asdemonstrated by two letters of 10 and 12 September 1990 sent to Eurofer by twoCommission officials (annexes 7 and 8 to the application in Case T-137/94). All ofthose measures had the objective of increasing market transparency in order tomake it easier for undertakings to adapt to possible alterations in demand, and thistransparency was not perceived as being contrary to Article 65 of the Treaty.

494.

    In that context, particularly that of Articles 46 to 48 of the Treaty and thesurveillance system established by Decision No 2448/88, the contacts betweenDG III and beam producers even intensified during the period after the manifestcrisis regime, with 'restricted‘ and 'consultation‘ meetings, as well as 'steellunches‘, supplementing the official quarterly meetings during which forwardprogrammes were discussed in accordance with Articles 46 to 48 of the Treaty.

495.

    Relying on various extracts from the 'speaking notes‘ and other minutes ofmeetings held after the end of the crisis regime (see appendix 3 to the application),

and on the internal notes of DG III produced by the Commission following theorder of 10 December 1997, the applicants argue that the Commission knew andeven encouraged the collection and exchange of information on orders, deliveries,actual price levels and estimated future price levels, led by Eurofer and thePoutrelles Committee, as well as the harmonisation of extras and the otherpractices which the Decision found that the undertakings had engaged in.

496.

    In this context, the applicants argue, the various agreements and practices of whichthey are accused, assuming that they have been established, ought to be consideredas lawful activities, particularly in light of Articles 46 to 48 of the Treaty and thesurveillance system established by Decision No 2448/88.

497.

    It appears from those documents that the Commission, and in particular DG III,attached considerable value to its discussions with the producers and theinformation provided to it at that time; under cover of fairly general exchanges, theCommission encouraged or, at least, approved the frequent initiatives of producersaimed at stabilising prices and production; in the same way as the practice followedduring the manifest crisis period for the allocation of 'I‘ quotas, on a quarterlybasis, among the national markets ('i‘ quotas), the Commission informedproducers of its views on how it wished to see the market develop and left it toEurofer to regulate the practical details of the market action which it wasadvocating; the Commission itself, within the framework of its marketrationalisation, played a determinant role in the attempts to control price andproduction fluctuations effected by producers; nothing could be attempted by thoseproducers without the assistance or, at the very least, the approval of theCommission. While acknowledging that the 'speaking notes‘ do not reveal thedetailed information exchanged within the Poutrelles Committee and used for thepurpose of establishing price tendencies and quantity forecasts, the applicantssubmit that the Commission knew, or ought to have known, that such exchanges ofinformation between producers were vital for preparing the discussions with it, ashad been the case in the recent past, and that it ought therefore to have advisedproducers to amend the method by which they prepared their forecasts. The'speaking notes‘ also contain many very clear references to the discussions onprices and to the wish to maintain their level shared by the Commission and theproducers. The Commission even attempted directly to reinforce price discipline,for instance by considering the introduction, in 1989, of a system requiringproducers to notify each other of discounts being applied (see the application,appendix 5).

498.

    Although a full set of the minutes and notes relating to the many meetings betweenthe Commission and the steel undertakings during this period was forwarded to theHearing Officer, it is clear from recital 312 of the Decision that the Commissionavoided carrying out any detailed examination of those documents, the relevanceof which it denies en bloc.

499.

    The applicants do not deny that the Commission periodically referred to Article 65of the Treaty, in particular for the purpose of pointing out that it remainedapplicable in full during the crisis period. However, in the absence of practicalguidelines from it, those simple references were meaningless.

500.

    Thus, for instance, the declaration that the Commission could not accept concertedaction on prices or quantities contrary to Article 65 of the Treaty, included atMr Kutscher's request in the minutes of the 'consultation meeting‘ of 26 January1989 (application, appendix 3, document 16), did not provide producers with anyguidelines as to how they were to draw up the market forecasts which theCommission required, while refraining from carrying out 'surveillance‘ of ordersand deliveries or exchanging information on price changes.

501.

    The Decision itself recognises, in recital 311, that there may have been'misunderstandings‘ as to the operation of Article 65 during the crisis period. According to the applicants, the confusion was not allayed after 30 June 1988. Onthe contrary, it increased as a result of the Commission's interventions in the sector,in conjunction with the latter's declarations affirming, without further explanation,that the provisions of Article 65 of the Treaty were applicable.

502.

    In those circumstances, the Commission's press release of 4 May 1988 at theopening of the 'Stainless Steel‘ procedure, indicating that it 'would not tolerateillegal arrangements‘ (see recital 305 of the Decision), had no practical use. Commission Member Van Miert, moreover, conceded, during the press briefing of16 February 1994, that there may have been some ambiguity during the periodwhich followed the period of manifest crisis. Clear guidelines should therefore havebeen published to dispel any misunderstanding (see, for an example within thecontext of the EC Treaty, the Guidelines on the application of EEC competitionrules in the telecommunications sector, OJ 1991 C 233, p. 2).

503.

    It was only in its Stainless Steel decision, adopted on 18 July 1990, that theCommission demonstrated, for the first time, its disapproval of the conduct of theundertakings during the period in question, by condemning practices similar tothose which it had accepted and even encouraged. That condemnation was thusat variance with the Commission's previous attitude, which had induced theundertakings to believe that their practices were consistent with Article 65 of theTreaty.

504.

    The applicants submit that the Commission amended its interpretation of theECSC Treaty competition rules at the end of 1990 (see paragraphs 37 and 38above). They take the view, however, that the Commission cannot, withoutinfringing the principle of the protection of legitimate expectations, retroactivelyapply Article 65 of the Treaty to the undertakings, whereas, during the period inquestion, it had accepted that it would not apply it to the practices in question and

had, on the contrary, encouraged such practices or at least developed similarpractices with the undertakings.

505.

    In reply to the Commission's fundamental argument that administrative tolerancecan never legitimise or justify an infringement, the applicants rely on the judgmentsin Case 344/85 Ferriere San Carlo v Commission [1987] ECR 4435 and Case 223/85RSV v Commission [1987] ECR 4617.

506.

    The applicants criticise, however, the application to the present context of the lineof decisions resulting from Case 1252/79 Lucchini v Commission [1980] ECR 3753,paragraph 9, and Case 8/83 Bertoli v Commission [1984] ECR 1649, paragraph 21,according to which Commission laxity in prosecuting cases cannot justify aninfringement. In the present context, the Commission did not simply demonstratelaxity in regard to the beam producers but actually tolerated, if not encouraged, theconduct impugned in the Decision, in full knowledge of the circumstances.

507.

    At the hearing, the applicants also presented a detailed analysis of the 'speakingnotes‘ and the documents from DG III produced at the Court's request. They alsorelied on the evidence taken by the Court, in particular that of Mr Kutscher.

Summary of the hearing of witnesses

508.

    By order of 23 March 1998, the Court ordered that Mr Pedro Ortún, Mr GuidoVanderseypen and Mr Hans Kutscher, officials and a former official of DG IIIrespectively, be heard as witnesses in regard to the contacts established betweenDG III and the iron and steel industry during the infringement period taken intoaccount in the Decision for the purpose of fixing the amounts of the fines, that isto say, from July 1988 to the end of 1990. The witnesses presented their evidenceto the Court at the hearing on 23 March 1998 and took the oath provided forunder Article 68(5) of the Rules of Procedure.

509.

    In his deposition and replies to the Court's questions, Mr Ortún, who at the timewas the director of Directorate E 'Steel‘ (subsequently called 'Internal market andindustrial affairs III‘) of DG III, stated that the consultation meetings with theentire iron and steel industry, arranged after 30 June 1988, in accordance with themandate which the Council gave to the Commission on 24 June 1988, as well as themeetings confined to Eurofer members, were designed to give the Commission asclear a picture as possible of the market situation and trends for various productsin order to make surveillance of them possible under Decision No 2448/88 and tofacilitate preparation of forward programmes, and supplemented the informationreceived from other sources, such as producers not belonging to Eurofer,consumers, traders and independent experts instructed by the Commission. Duringthose meetings, a representative of the industry normally intervened as sectoralspokesperson for each group of products and provided information on trends indemand, production, deliveries, stocks, prices, exports, imports and other market

parameters for the months to come. According to Mr Ortún, these permanentexchanges of views with the industry on the main market parameters meant thatthe producers convened prior to their meetings with DG III for an exchange ofviews and opinions on future market tendencies of various products, includingprices, but DG III, which did not receive any minutes of these internal meetings,was unaware of what information was exchanged on those occasions, just as it wasunaware of the use to which producers put that information, and was, moreover,not especially worried about it. In reply to the Court's questions, Mr Ortún statedthat, after June 1988, the Commission pursued neither a policy of stability oftraditional trade flows between Member States nor an objective of increasing ormaintaining prices, but sought only to prevent market fluctuations resulting insudden and significant price variations without any direct link to trends in demand. He also stressed that DG III, while not having the objective or main responsibilityof verifying or ensuring that the practices linked to the exchanges of informationbetween producers prior to their meetings with it should comply with the Treatyrules on competition, pointed out to them on various occasions that they wererequired to comply with Article 65 and consequently assumed that they were doingso.

510.

    In his deposition and answers to the questions put by the Court, Mr Kutscher, whoat the time was principal adviser in Directorate E of DG III, stated inter alia thatit was at the request of Mr Narjes, at the time Commission Member responsiblefor industrial affairs, that he included in the minutes of the consultation meetingof 26 January 1989 (application, appendix 3, document 16) the warning that 'theCommission could not accept concertations on prices or on tonnages which wouldbe in conflict with Art. 65 of the Treaty. If such concertations existed, theCommission would have to intervene‘. That warning, which Mr Kutscherconfirmed that he had already phrased in more or less identical terms before theECSC Consultative Committee on 1 June and 20 June 1988 and in October 1988,was intended to show clearly to the industry that free competition had to be fullyapplied at the end of the quota system, in strict compliance with Article 65 of theTreaty, and to avoid repetition of an agreement such as that which the StainlessSteel decision found had existed.

511.

    Mr Kutscher also acknowledged that DG III knew that the undertakings whichbelonged to Eurofer convened prior to their meetings with the Commission andthat on these occasions they discussed developments in various market parametersuntil they reached some form of consensus on future market tendencies, thecontent of which was then the subject of their discussions with DG III. Accordingto his evidence, it would have been practically impossible for the Commission ora trade association such as Eurofer to question each producer individually. Inorder to provide the Commission with the information which it required, theproducers thus had to meet to exchange their opinions and their forecasts on howprices, stocks, imports and so on would develop. It was then a matter for the

chairman of the meeting concerned to collate the information exchanged and toforward it to the Commission during the consultation meetings.

512.

    Mr Kutscher expressly accepted in particular that, during their meetings, theundertakings exchanged their forecasts as to the future prices of various productsor their individual intentions in that regard. In his opinion, an exchange of viewsbetween producers as to their individual future intentions in regard to prices doesnot fall within the prohibition of concerted practices under Article 65(1) of theTreaty, even if it is in fact followed by a general movement in prices consistent withthe forecasts exchanged, provided that this exchange of views remains within thelimits of market-related findings and does not result in any agreement, concertationor collusion as to that movement. Mr Kutscher stressed in that regard that, on amarket such as that of steel, when market trends are positive, as was the case in1988-1989, a price increase decided on independently by one producer will veryquickly become known and followed almost automatically and independently bymost of his competitors, without there being any need for an agreement betweenthem if that increase is consistent with the market trends, since each undertakingwill wish to profit from the favourable situation.

513.

    Mr Kutscher did, however, stress that DG III had no knowledge of agreements orconcerted practices going beyond such an exchange of information betweenundertakings, and that any personal misgivings which he may from time to timehave had in that regard were dispelled by the persons with whom he spoke. Onthis point, Mr Kutscher referred more specifically to the consultation meeting heldon 27 July 1989 (see the summarised minutes of that meeting, dated 3 August 1989,produced by the defendant pursuant to the order of 10 December 1997), duringwhich, in a reaction to an announcement by Mr Meyer, the chairman of thePoutrelles Committee, according to whom the market was 'balanced and wouldeven still allow slight price increases from 1 October 1989‘, he 'pointed out thatthe Commission was concerned to ensure full compliance with the price rules inArticle 65 of the Treaty.‘ Mr Kutscher confirmed that he had been reassured bythe reply of the industry representative, to the effect that 'in this particular case,the undertakings concerned confined themselves to informing trade circles andcustomers of their respective intentions to increase prices‘. It was also currentpractice at the time for steel producers to inform their major customers in advanceof individual future intentions in regard to prices. Mr Kutscher also stressed that,in this case, the modest price increases announced by producers during meetingsin 1988 and 1989 were in line with the favourable market trends and that they didnot therefore allow DG III to suspect that they resulted from concerted action. Healso added that, during his numerous discussions with representatives of the ironand steel industry, with the exception of the abovementioned incident withMr Meyer, those representatives had never given the slightest indication to suggestthat the industry was acting in concert on prices or quantities, whether in regardto beams or in regard to other iron and steel products.

514.

    In his deposition and replies to the questions put by the Court, Mr Vanderseypen,who at the time was on secondment to Directorate E of DG III, stated inter aliathat DG III had knowledge, as shown by its file note of 7 April 1989, produced bythe defendant pursuant to the order of 10 December 1997, of the collection byEurofer from its members of rapid statistics consisting of aggregate monthly dataon orders and deliveries available 10 to 20 days after month's end, but did not haveknowledge of the system for monitoring individual orders and deliveries ofparticipating undertakings which had been established within Eurofer atapproximately the same time. He confirmed that the rapid statistics in question,aggregated at company level, were broken down according to product and nationalmarket of destination, with the result that no declaring undertaking could calculateits competitors' market shares. He pointed out that the Commission never receivedfrom Eurofer statistics broken down according to individual undertakings, that theCommission did not know whether such figures were circulated within Eurofer andthat, in reply to the question whether Eurofer carried out such exchanges, hisinterlocutors were still replying in the negative in July 1990.

515.

    With regard to the figures indicating price tendencies given during the meetings inquestion, Mr Vanderseypen stated that, in general, orders for iron and steel goodsare met within three months. Those indications may thus often have been basedon the first orders returned for the following quarter. The references to pricescontained in the 'speaking notes‘ did not therefore necessarily reflect intentions,but perhaps an initial realistic picture, that is to say, the prices set out in the firstorders which were beginning to come in.

Findings of the Court

Preliminary observations

516.

    By their very nature, the applicants' arguments can relate only to the infringementsof which they are accused within the context of the Poutrelles Committee'sactivities. In this regard, their line of argument consists in substance of four mainlimbs:

(a)    during the manifest crisis period, the Commission encouraged closehorizontal cooperation between undertakings, particularly under themanagement of the system of 'i‘ quotas on national markets, pricingagreements and efforts to achieve voluntary agreements on capacityreduction. It thus gave the impression either that such conduct is notcontrary to Article 65(1) of the Treaty or that Article 65(1) is flexible incontent depending on the Commission's policy at any given time. At thevery least, the Commission placed the undertakings in a state of uncertaintyas to which types of conduct were prohibited under Article 65(1) of theTreaty;

(b)    at the end of the crisis period, the Commission failed to give any practicaladvice or guidelines to dispel the misunderstandings in question, with theresult that the undertakings could not know the precise scope of Article65(1) of the Treaty. In addition, the Commission did not adopt transitionalmeasures but, on the contrary, retroactively aligned the competition rulesof the ECSC Treaty with those of the EC Treaty without any prior warning;

(c)    in any event, after the end of the crisis period, the Commission knew about,and even encouraged, the collection and exchange of information,particularly with regard to orders, deliveries, actual price levels and futureprice-level estimates, within the framework of the numerous meetings heldbetween the undertakings and DG III to ensure implementation of Articles46 to 48 of the Treaty and the surveillance system established by DecisionNo 2448/88. The Commission thus knew about, and even tolerated, thepractices of which the undertakings stand accused in the Decision;

(d)    it follows that the practices in question were lawful in view, in particular, ofArticles 46 to 48 of the Treaty.

The Commission's conduct during the crisis period

517.

    As is clear from paragraph 6 et seq. above, the Commission has, since thebeginning of the crisis in the iron and steel industry in the mid-1970s, activelypursued a policy of adjusting supply to demand, maintaining the stability oftraditional trade flows, both within and outside the Community, and of supportingprices in order to make possible the necessary restructuring, in terms of capacityreduction, while ensuring that as many undertakings as possible remain afloat. Since supply far outstripped demand, the Commission was constrained to deal withthe shortage of orders by imposing quotas on the basis of the principles of 'burden-sharing‘ and 'equality of sacrifice‘, reflecting a degree of solidarity amongundertakings in the face of the crisis, which was supposed to encourage structuraladaptations in an orderly manner.

518.

    This policy was implemented in close collaboration with the industry, in particularthrough Eurofer, whether by way of voluntary commitments which the undertakingsgave to the Commission, which were characteristic of the period 1977 to 1980, orthrough the system of 'I‘ and 'i‘ quotas and the Eurofer agreements from 1980to 1988.

519.

    On that occasion, the undertakings developed, with the support and in any eventwith the knowledge of DG III, practices which were similar, in several respects, tosome of those to which objection is taken in the Decision. In particular, theyengaged in surveillance of traditional trade flows, the maintenance of which,involving the division of markets along national lines, was moreover expresslyauthorised, until 1986, by Article 15B of Decision No 234/84. They also established

arrangements for detecting and preventing disruptive conduct by surveillance oforders and deliveries, as well as systems for adjusting supply to demand andsupporting prices.

520.

    The Commission was thus led to authorise, guarantee or encourage conduct whichappeared to be contrary to the normal rules governing the working of the commonmarket, which are based on the principle of the market economy (Valsabbia andOthers v Commission, cited above, paragraph 80), and therefore liable to comewithin the prohibition of agreements under Article 65 of the Treaty. Thus, at atime when the Commission wanted harmonisation and a general price increase inthe Community, it did not voice any objection to the call by representatives of theFrench iron and steel industry for the conclusion of an agreement to fix prices onthe French market (see the minutes of the abovementioned meeting of 16 May1986 between Commission Member Narjes and Eurofer representatives). It is alsoclear from a number of official documents (see, for example, Commission DecisionNo 1831/81/ECSC of 24 June 1981 establishing for undertakings in the iron andsteel industry a monitoring system and a new system of production quotas inrespect of certain products (OJ 1981 L 180, p. 1) and the minutes of theabovementioned meeting of 10 March 1986 between Mr Narjes and Eurofer) thatthe Commission was openly in favour of certain 'private arrangements‘,'concertations‘, 'internal agreements‘ and 'voluntary systems‘ drawn up by theundertakings.

521.

    During this period, the Commission apparently took the view that thoseagreements, practices and private systems did not come within the prohibition ofArticle 65 of the Treaty in so far as they merely constituted implementing oraccompanying measures adopted by the undertakings in accordance with its generalpolicy. The Commission's thinking in this connection had already been set out inthe letter sent by Mr Davignon and Mr Andriessen on 17 January 1983 to thechairman of Eurofer (see paragraph 10 above). The system of supplementary 'I‘and 'i‘ quotas under the Eurofer agreements is the most obvious example of this.

522.

    Recital VIII.13 of the Stainless Steel decision confirms that, in the Commission'sopinion, there is 'a fundamental difference between agreements betweencompanies made after consultation with the Commission and designed essentiallyto make measures taken by the Commission more effective and easier to supervise,on the one hand, and agreements made on the companies' own initiative, withoutconsultation with the Commission (which was merely informed informally aboutthem) and which were designed not to support existing restrictions but to createnew restrictions with additional economic effects, on the other.‘

523.

    Likewise, the Commission indicates in recital 309 of the Decision that 'the fact thatcompetition has been limited in certain respects by the action of the Communitydoes not permit undertakings to impose additional restrictions or restrict

competition in other respects. It is essential, in such circumstances, that theundertakings and their associations do nothing further to reduce competition.‘

524.

    It is, however, necessary to point out that the Commission has failed to establishthat the applicant is guilty of any infringement connected with the activities of thePoutrelles Committee prior to 1 July 1988. It is clear from the Decision that theagreements within the Poutrelles Committee, proved by the Commission, on price-fixing, the harmonisation of extras, the Traverso methodology and the Frenchmarket were made after 30 June 1988. Likewise, it appears from the Decision thatthe infringements linked to the monitoring of orders and deliveries and to theexchange of information through the Walzstahl-Vereinigung relate to the periodafter 30 June 1988, particularly in view of the fact that the monitoring of deliveriesdid not begin until after 18 October 1988 (recital 41 of the Decision) and that allthe evidence relied on by the Commission to demonstrate the purpose and effectof the exchanges of information dates from after 30 June 1988 (see recitals 49 to60 of and Annex I to the Decision).

525.

    It ought, however, to be added that, despite the abovementioned letter of17 January 1983 from Mr Davignon and Mr Andriessen to Eurofer, theCommission's practice during the period of manifest crisis was such that it was noteasy to ascertain what it considered at the time to be the exact scope of Article 65of the Treaty. The Commission was therefore right to state, in recital 311 of theDecision, that 'in view of the possible misunderstandings about the operation ofArticle 65 during the period of manifest crisis and the operation of the quotasystem‘, it had 'decided not to impose fines on companies for their behaviour upto 30 June 1988‘.

Continued misunderstandings, after the period of manifest crisis, as to theinterpretation or operation of Article 65(1) of the Treaty

526.

    Even assuming that, after the end of the period of manifest crisis, some doubtcould have remained as to the actual scope of Article 65(1) of the Treaty or as tothe Commission's position in that regard, given its ambiguous attitude up to30 June 1988, this circumstance cannot prevent the actions of the applicantobjected to in regard to the period after that date from being characterised asinfringements.

527.

    In any event, the Court finds that, after the end of the period of manifest crisis, theapplicant could not have entertained any serious doubts as to the Commission'sattitude about the operation of Article 65(1) of the Treaty or as to the scope ofthat provision in relation to the infringements of which it is accused.

528.

    It should be pointed out in this regard that the Commission noticed, around themid-1980s, that, far from promoting the structural adaptations considered vital forlasting rationalisation of the sector, the quota system and its accompanying

measures had brought the undertakings into what might be described as aprotected position (on these issues, see the report of the 'Three Wise Men‘,paragraph 24 above). The Commission concluded at that time that the quotasystem, as operated since 1980, had been a failure and it decided to plan, over atwo- or three-year period, a return to a system of normal competition according tothe Treaty rules. Its hope was that market forces would make it possible to achievewhat interventionist measures had been unable to achieve, the re-establishment ofnormal competition necessarily leading, in a sector experiencing structuralovercapacity, to the disappearance of less efficient units in the short or long term(paragraphs 27 and 28 above).

529.

    The Commission was authorised to bring the manifest crisis regime to an end oncethe formal conditions laid down in Article 58(3) of the Treaty had been met. Consequently, the normal rules for the functioning of the common market in coaland steel, 'based on the principle of the market economy‘ (Valsabbia and Othersv Commission, cited above, paragraph 80) automatically re-applied once thatregime had come to an end.

530.

    The Court finds further that this change in Commission policy was brought clearlyto the attention of the parties concerned and was accompanied by appropriatetransitional measures.

531.

    The discontinuance of the quota regime was announced publicly in 1985, that is tosay several years before it became effective. It is clearly set out in numerousofficial documents dating from 1985 to 1988 and it was, moreover, specificallybrought to the attention of the sectors concerned, in particular through meetingsbetween the Commission and Eurofer (see paragraph 17 et seq. above).

532.

    In particular, the parties were aware from September 1985, if not earlier, that theyhad entered a transitional regime. The Commission thus agreed to extend thequota regime for several years to enable the industry to adapt progressively to areturn to conditions of normal competition. It commissioned a report by a groupof three experts, which confirmed its views and also the lack of awareness on thepart of industrialists as to the gravity of the crisis and the need for them to adaptto worldwide competition. The Commission was still prepared in 1988 to extendthe regime to the end of 1990, on condition that the steel undertakings gavecommitments that they would shut down at least 75% of what the Commission hadcalculated as excess plant. Finally, even after the return to a regime of normalcompetition, the Commission adopted a variety of measures designed to accompanytransition, in particular the surveillance regime introduced between 1 July 1988 and30 June 1990 by Decision No 2448/88. It cannot therefore be argued, as some ofthe applicants contend, that the Commission culpably placed the undertakings inan impossible situation by abandoning them abruptly, without preparation, to thefree market.

533.

    For the rest, the Court finds that Eurofer itself examined how it might cope withthe Commission's new policy, as is clear from the minutes of the meeting of 16 May1986, extracts of which are cited in paragraph 20 above.

534.

    Furthermore, the attention of the undertakings was drawn on several occasions tothe need to comply with the Treaty rules on competition, in particular themandatory requirement in Article 65. Very clear signals were sent to them, interalia at the time of the press briefing of 4 May 1988 and during the administrativeprocedure in the Stainless Steel case. In addition, formal statements of notice wereofficially mentioned in the minutes of certain meetings between Commissionrepresentatives and representatives of the industry, at the express request of theCommission officials (see below).

535.

    Moreover, as the Court has just found, the present case concerns agreements orconcerted practices relating to price-fixing, market allocation and exchanges ofinformation on the orders and deliveries of the participating undertakings, brokendown according to country and undertaking, designed to coordinate theircommercial activities and to influence trade flows after the end of the crisis period. The Court considers that the undertakings could not have had serious doubts as towhether such conduct was contrary to Article 65(1) of the Treaty.

536.

    As regards clear infringements of Article 65(1) of the Treaty, the Court also findsthat it was in no way necessary for the Commission to 'align‘ the competition rulesof the ECSC Treaty with those of the EC Treaty in order to be able to decide thatsuch infringements had taken place, so that the applicants' arguments based on thereflections which the Commission began on the future of the ECSC Treaty from1990 are spurious.

537.

    It follows that the applicants are not justified in relying on allegedmisunderstandings as to the application or scope of Article 65(1) of the Treatyafter the end of the manifest crisis regime.

Involvement of DG III in the infringements found after the end of the manifestcrisis regime

538.

    In order to examine more carefully this aspect of the action, the Court, by orderof 10 December 1997, ordered production of the notes, memos or minutes draftedby DG III officials in connection with their meetings with the steel industryrepresentatives during the period in which the surveillance system established byDecision No 2448/88 applied. The Court also heard evidence from Mr Ortún,Mr Vanderseypen and Mr Kutscher on the contacts established between DG IIIand the steel industry during the infringement period taken into account in theDecision for the purpose of fixing the amount of the fine.

539.

    Neither the documentary evidence which the parties have submitted to the Courtnor the measures of inquiry and organisation of procedure which it ordered havemade it possible to establish that DG III was aware of the infringements of Article65 of the Treaty of which the applicant is accused, or, a fortiori, that DG IIIinitiated, encouraged or tolerated such infringements.

540.

    In particular, there is nothing to show that the Commission was aware of theagreements and concerted practices concerning the fixing of target prices and thesharing of markets objected to in the Decision, or of information-exchange systemsgoing beyond those which it itself organised within the context of the meetings toprepare forward programmes and, more specifically, the system for monitoringorders and deliveries described in recitals 39 to 60 and 263 to 272 of the Decision,or the system for the exchange of individual statistics organised through Eurofer,described in recitals 143 and 144 of the Decision.

541.

    It should be recalled in this regard that, at its 1255th meeting, held in Luxembourgon 24 June 1988 (see annex 3 to the statement in defence), the Council:

—    noted that the Commission intended to bring the quota system to an end,in respect of all steel products, on 30 June 1988;

—    advocated certain measures to enable undertakings to adapt more easily tochanges in demand, namely: the collection of monthly statistics relating toproduction and deliveries on the basis of Article 47 of the Treaty; regularmonitoring, as part of the forward programmes referred to in Article 46 ofthe Treaty, of market developments; and regular consultation of interestedparties on the situation and tendencies of the market;

—    stressed, at the same time, that no-one should use the monitoring system inorder to circumvent Article 65 of the ECSC Treaty.

542.

    The Commission accordingly established a system for monitoring the market, inassociation with Eurofer, pursuant to Decision No 2448/88.

543.

    It is true that, within that context, the Commission was pursuing a general objectiveof preserving a balance between supply and demand, and consequently of stabilityin the general level of prices, intended to allow steel undertakings to becomeprofitable again (see, for instance, the internal DG III note of 24 October 1988concerning the meeting with the industry on 27 October 1988, DG III's summaryof 10 May 1989 of the consultation meeting of 27 April 1989, DG III's summary of28 October 1989 of the consultation meeting of 26 October 1989, and the internalDG III note of 8 November 1989 concerning a meeting with producers on7 November 1989).

544.

    The Commission thus supported consultation of producers on the market, with aview to obtaining direct information on market trends and thus creating improvedtransparency of the available information (see the internal DG III note of24 October 1988), in such a way as to make it easier for undertakings to adapt toany changes in demand.

545.

    These extensive and detailed exchanges of information, involving those withresponsibility for sales within the undertakings, who were considered to be morein touch with commercial reality (see the internal note of 24 October 1988), relatedinter alia to the parameters of supply and demand, as well as to the level and pastand future development of the prices of various steel products on the differentnational markets. The Commission also made regular appeals to producers' senseof moderation and self-control, for instance by encouraging them to limit supplywhere market trends were unfavourable.

546.

    However, as the following analysis makes clear, there is no evidence before theCourt to suggest that the Commission encouraged or tolerated, on this occasion,the various forms of collusion of which the applicant is accused in the Decision.

—     Price-fixing agreements

547.

    With regard, first, to the price-fixing agreements of which the applicant is accused,the Court has already found that what was involved in this case was not, as theapplicant claims, mere exchanges of information on price 'forecasts‘ butagreements to fix prices. Nothing in the evidence before the Court justifies theconclusion that the Commission was aware of such agreements.

548.

    It is true that many of the documents relating to the meetings between the industryand DG III refer to price forecasts.

549.

    Equally, it is clear, a posteriori, from all of the documents produced before theCourt that some of the information given to DG III concerning future prices ofbeams was derived from the agreements reached within the Poutrelles Committee(see, in particular, the minutes of the Poutrelles Committee meetings of 18 October1988, 10 January 1989, 19 April 1989, 6 June 1989 and 11 July 1989 in conjunctionwith the minutes and speaking notes relating to the consultation meetings of27 October 1988, 26 January 1989, 27 April 1989 and 27 July 1989).

550.

    However, the Court finds that, at that time, the officials of DG III were not in aposition to tell that, among the extensive information which Eurofer provided tothem concerning, in particular, the general market situation, stocks, imports andexports and demand trends, the information on prices came from agreementsbetween undertakings.

551.

    It must be pointed out in this regard that, notwithstanding the very large numberof meetings and contacts between the undertakings and DG III, none of theapplicants has claimed that it had informed DG III, even unofficially, of itsparticipation in the actions found by the Decision to constitute infringements. Likewise, no minutes of the Poutrelles Committee meetings were notified toDG III, even though the undertakings must have known that DG III would havebeen greatly appreciative of the detailed information contained in those minutes.

552.

    At most, it emerges from the documentary evidence before the Court and inparticular from the speaking notes relating to the meetings between theCommission and the industry, as well as from the measures of inquiry andprocedural organisation ordered by the Court, that DG III was aware that theundertakings belonging to Eurofer were holding meetings, prior to their meetingswith the Commission, at which they discussed developments in a variety of marketparameters until some form of consensus was reached as to future markettendencies, the content of which was then the subject-matter of the discussions withDG III.

553.

    While it is true that DG III was aware that, in those meetings, the undertakingsexchanged their respective forecasts on future prices and even their individualintentions in that regard, as Mr Kutscher expressly acknowledged when giving histestimony, the latter also expressed the opinion that such an exchange of viewsbetween producers did not fall foul of Article 65(1) of the Treaty, even if it was infact followed by a general price movement in line with the forecasts exchanged,provided that this exchange of views was confined to determining the economicsituation and did not result in any agreement or collusion as to that movement.

554.

    Moreover, the minutes of the consultation meeting of 26 January 1989 (application,appendix 3, document 16) include an express warning by Mr Kutscher to the effectthat if the Commission were to discover that there was an agreement within theindustry concerning quantities and prices, contrary to Article 65 of the Treaty, itwould not hesitate to take appropriate measures. While giving his testimony,Mr Kutscher explained that he had his statement entered in the minutes at theexpress request of Commission Member Narjes in order to indicate clearly to theindustry that free competition had to apply in full at the end of the quota regime,in strict compliance with Article 65 of the Treaty, and in order to avoid repetitionof an agreement such as the Stainless Steel agreement.

555.

    Mr Kutscher also stated, without being challenged by the applicants on this point,that he had made three similar statements before the ECSC ConsultativeCommittee on 1 June and 20 June 1988 and in October 1988.

556.

    It also appears from the DG III summary of the consultation meeting of 27 July1989 that, in reference to an announcement of a price increase which appeared tohim suspect, Mr Kutscher had 'reiterated the importance which the Commission

attaches to full compliance with the rules in Article 65 of the Treaty‘. The replyby the representative of the Poutrelles Committee that the undertakings concernedby that increase had 'confined themselves to informing trade circles and customersof their respective intentions to raise prices‘ gave the appearance that this was anindependent course of action.

557.

    It follows that the applicants have not established that the DG III officials wereaware of the agreements and concerted practices in relation to price-fixing of whichthe applicants are accused in the Decision, or, a fortiori, that those officialstolerated or encouraged such agreements and practices.

—     Agreements on harmonisation of the prices of extras

558.

    It has already been established, in paragraph 320 et seq. above, that theCommission was unaware of the practices engaged in by the undertakings forharmonising the prices of extras. That finding cannot be affected by the fact thatEurofer's speaking note concerning the consultation meeting of 27 July 1989(application, appendix 3, document 18) indicates that 'extras for size and qualitywill, probably, increase‘ and that this prognosis apparently served as a basis for theCommission's observation, in the forward programme for steel for the third quarterof 1989 (OJ 1989 C 178, pp. 2 to 8), that 'there is no sign of any further majorupward movement [in prices for heavy sections] in the next few months, except onprice extras, which are generally being harmonised Europe-wide‘.

—     Market-sharing agreements

559.

    The evidence before the Court does not establish that the undertakings wereencouraged by the Commission to act in concert for the purpose of regulating orstabilising the market, in particular through the conclusion of agreements derivingfrom the Traverso methodology or relating to the French market in the fourthquarter of 1989.

560.

    As regards the Traverso methodology, there is no evidence to suggest that theCommission had knowledge of that system, which was first brought into effect inJuly 1988 and thus before the first consultation meetings in October 1988.

561.

    As regards the agreement on the French market for the fourth quarter of 1989, theapplicants have referred in particular to the minutes of the consultation meetingof 1 September 1989 (application, appendix 3, document 32), which indicate, inregard to the discussion of the situation on the French market, that 'an appeal hasbeen made to national producers to show moderation so as not to destabilise theother Community markets‘. However, it must be stressed that, unlike the speakingnotes forwarded to the Commission for information purposes, the minutes inquestion are a document unilaterally drafted by Eurofer of which the Commission

was not aware before these proceedings, and that the internal DG III noteconcerning that meeting makes no reference whatever to such an appeal formoderation. The Court accordingly takes the view that the document in questionhas no probative value. In any event, the appeal for moderation to which it refersis expressed in general terms which do not give reason to believe that it wasunderpinned by an agreement to share the French market.

562.

    In so far as the applicants referred, in their joint pleading, to the statement in thoseminutes that 'the chairman [of the meeting] agreed that the forward programmeought to be considered as a guideline for reasonable conduct on the market‘, theCourt observes that the same document also states, immediately before the remarkin question, that 'in the absence of a quota system, it is possible only to make acall for reasonable behaviour, without any guarantee as to results‘. This commentdemonstrates that, to the Commission's thinking, the reasonable behaviour or self-discipline which it expected from the industry was to be shown by each playerconsidered individually, and was not to be the result of any concerted actionbetween producers.

563.

    It is true that the speaking note relating to the consultation meeting of 27 April1989 (application, appendix 3, document 17) indicates, in regard to the marketsituation of reinforcing bars (p. 8), that: 'some changes of traditional trade flowsthat are currently taking place further to offers made by Italian producers on theGerman and French markets, are strongly threatening the price stability in thissector given the immediate effect of these offers on the price level. This couldeasily result in severe damage to wire rod and so must be watched carefully‘. Similarly, the speaking note relating to the consultation meeting of 27 July 1989(application, appendix 3, document 18) also cites, among a number of 'negativefactors‘ influencing pricing on the market for long products, the 'increase ofinterpenetrations‘.

564.

    Those indications, however, are not sufficient to establish that the Commission wasat that time pursuing its former policy of maintaining traditional trade flows or thatit approved, even implicitly, a similar policy being pursued by the producersthemselves. In the first place, these references in the speaking notes and minutesof a great number of meetings at that time are isolated references, andconsequently atypical. Second, they are essentially descriptive in nature, areconfined to reflecting the industry's assessment of the market situation and result,at most, in a simple exhortation to 'careful monitoring‘, without any action whatever on the market being contemplated in response to the 'threat‘ inquestion.

—     Exchanges of information on orders and deliveries

565.

    It is clear from the evidence not only that the Commission was unaware of theexchange of information on orders and deliveries carried out by the PoutrellesCommittee but also that Eurofer deliberately failed to disclose to DG III andDG IV the existence of systems for exchanging information on individualised data.

566.

    It should be pointed out in this regard that, during the restricted meeting of21 March 1989 between representatives of DG III and representatives of theindustry (see the minutes of this meeting, application, appendix 3, document 24),Mr von Hülsen, Director-General of Eurofer, informed DG III of theimplementation, within that association, of a system of accelerated statisticalinquiries concerning aggregate monthly data on orders and deliveries, but did notinform it of the establishment of monitoring of orders and deliveries, the firstresults of which had, however, been discussed among the participating undertakingsfor the first time at the Poutrelles Committee meeting of 9 February 1989.

567.

    Mr Vanderseypen, who testified at the hearing, confirmed that the rapid statisticsin question, aggregated at the level of the undertakings, were broken down for eachproduct and national market of destination, with the result that no undertakingcould calculate the market share of its competitors. He stated that the Commissionhad never received from Eurofer figures broken down for each undertaking andthat the Commission was unaware that such figures were circulated within Eurofer.

568.

    It is apparent from the documents listed in Annexes I and II to the Decision that,both in the context of the monitoring described in recitals 39 to 60 of the Decisionand in that of the exchange of information through Eurofer described in recitals143 to 146 of the Decision, individual statistics for each undertaking and eachnational market were exchanged for the orders and deliveries of, inter alia, theapplicant and Peine-Salzgitter, Thyssen, Usinor Sacilor, Cockerill-Sambre, ARBEDand Ensidesa.

569.

    By letter of 22 June 1990 (application, appendix 4, document 1), Mr Temple Lang,Director in DG IV, also raised the general problem of collection and exchange ofinformation and statistical data within Eurofer. He pointed out that, during ameeting of the Steel Statistics Committee of 11 June 1990, 'the Commission hadconsidered it necessary, in light of the unusual solution of collecting information,to warn the members of the Committee and in particular the Euroferrepresentative that Article 65 of the Treaty was applicable‘. He also referred to'the Commission's position on the question of the joint preparation of statistics andthe exchange of information between undertakings or through the offices of a thirdbody‘, stressing the difference 'between an agreement to collect statisticalinformation which is generalised and not up-to-date, on the one hand, and, on theother, the collection of statistics which are up-to-date and detailed and which wouldnot otherwise be accessible to competitors‘. He added that the members of theCommittee had already been informed at the meeting of 7 July 1989 by the sendingof a copy of the 1968 communication. He accordingly called on the Director-General of Eurofer to provide a number of items of information, 'in order to be

able to ascertain whether [its] activities in the area of joint preparation of statistics[might] have a bearing on effective competition‘, and in particular the 'descriptionof the method for collecting and distributing statistics within [his] association‘.

570.

    However, it appears from the reply of 24 July 1990 by the Director-General ofEurofer (application, appendix 4, document 1) that, its express requestnotwithstanding, DG IV was not informed of the nature and precise scope of theexchanges of information — namely, that these involved individual data on ordersand deliveries broken down according to undertaking and country — which tookplace within Eurofer, as well as between the members of its Poutrelles Committee.

571.

    At the same time, on 30 July 1990, or less than one week after Eurofer had repliedto DG IV's request for information, the administration of Eurofer sent to, interalios, the chairman and secretariat of the Poutrelles Committee a letter headed'Statistics exchange and circulation‘ (document no 1681 of the Commission's file),cited as follows in recital 44 of the Decision:

'The decision recently made by the Commission in the matter of stainless flatproducts and some contacts taken by DG IV with the general management ofEurofer, have drawn attention to the statistics exchange or circulation made by ouroffice or by the committee secretariats and to their compatibility with Article 65 ofthe ECSC Treaty.

While waiting for a thorough examination from the legal point of view, we decidedto suspend any circulation which discloses individual figures for production, deliveryor orders and we ask you to kindly abstain from any similar exchange or circulationin the framework of your Committee.

Of course, this request does not affect the collection of individual figures by oneneutral centre, namely the Eurofer office, and the circulation of aggregate results,without mention of individual elements, as we usually do. Such statistics areperfectly legal because they obviously aim at giving a global information on theeconomic and market development. They will be maintained as before by us andyou may proceed in the same way.‘

572.

    It must therefore be concluded that Eurofer, even while it was the subject of anexpress request by DG IV for information, deliberately kept the Commission in thedark about the exchange or distribution of individual statistics which it knew wastaking place within its product committees, in particular the Poutrelles Committee,while requesting those committees to refrain subsequently from so doing.

573.

    It is also established that, after initially acceding to Eurofer's request of 30 July1990, the undertakings belonging to the Poutrelles Committee, in agreement withthe Eurofer authorities, rapidly resumed the exchange of information on individual

undertakings, with the exception of the applicant, which refused to provide suchinformation (see recitals 44 to 46 of the Decision).

—     Other agreements

574.

    The applicant has not claimed, let alone demonstrated, that DG III had knowledgeof the other agreements of which the applicant is accused in the Decision, subjectto a proviso with regard to the Eurofer/Scandinavia agreements, which have beenthe subject of separate examination by the Court.

—     Conclusions

575.

    The Court concludes from all of the foregoing that, from 1988 on, the steelundertakings and their trade association Eurofer submitted to the Commissionrelatively general and imprecise information, whilst engaging, in support of theiragreements in restraint of competition, in very precise and detailed discussions,individualised at the level of the undertakings, the existence and content of whichthey hid from both DG III and DG IV. The undertakings were fully aware of thesubstantive difference between those two categories of information, and theydeliberately made sure that only one category, and not the other, was brought tothe Commission's knowledge.

576.

    The Court accordingly finds that the undertakings infringed the Treaty rules oncompetition by putting up a screen to protect them from the scrutiny of the DG IIIofficials responsible for monitoring the market. They cannot, consequently, pleadthat those officials knew, or ought to have known, of their practices in order toescape their obligation to comply with Article 65(1) of the Treaty.

577.

    In any event, the provisions of Article 65(4) of the Treaty, to the effect thatagreements or decisions prohibited under Article 65(1) are 'automatically void‘,have an objective content and are binding on both undertakings and theCommission, which cannot exempt those undertakings (see Opinion 1/61 of theCourt of Justice, cited above). In those circumstances, toleration or administrativelaxity cannot alter the fact that a breach of Article 65(1) of the Treaty is in thenature of an infringement (judgments in Lucchini v Commission and Bertoli vCommission, cited above).

578.

    That is particularly so when the toleration in question, even if assumed to havebeen established, is shown by the Directorate-General of the Commissionresponsible for industrial affairs, and not that responsible for competition matters. Had the undertakings had the slightest doubt as to whether their conduct waslawful, they should have contacted DG IV in order to clarify the situation.

579.

    The letter of 8 February 1983 from the chairman of Eurofer to Mr Davignon(paragraph 11 above) clearly cannot free them from their responsibility for conductdating from a different period and subject to a fundamentally different regime. Nor can that letter impose on the Commission an implicit obligation to reactimmediately to the slightest suspicion of anti-competitive conduct. In any event,that letter rests on the premiss that the Commission was 'meticulously informed‘of Eurofer's practices 'in full detail‘, which was not the case here.

Legality of the activities of which the applicant is accused with regard, in particular,to Articles 46 to 48 of the Treaty

580.

    The Court has already found that the provisions of Articles 46 to 48 of the Treatydid not authorise the conclusion of the agreements and concerted practices at issuein this case (see paragraphs 310 to 314 above).

581.

    Moreover, the applicants have themselves acknowledged, in particular in their jointpleadings, referring to the report prepared by Professor Reuter, that, if themeasures adopted by the Commission pursuant to those articles, in 'collaboration‘with the interested parties and with their agreement, 'patently constitute concertedpractices‘, it is only in so far as 'the High Authority is involved in the concertedaction and even directs it‘ that those measures do not come under Article 65 of theTreaty.

582.

    Likewise, in his oral submissions on behalf of the applicants at the hearing,Professor Steindorff indicated, with regard to the exchanges of information betweenundertakings preparatory to the meetings with the Commission, that such priorexchanges would escape from the prohibition of Article 65(1) of the Treaty only ifthey were conducted by the Commission. According to Professor Steindorff,undertakings must act in good faith and bear in mind that, in those exchanges, theyare merely preparing the discussions with the Commission, which, for its part,operates within the context of Article 46 of the Treaty.

583.

    The Court finds that this was not the case here. On the contrary, it is clear fromthe documents before it that, when they realised that the Commission no longerintended taking any action to maintain the stability of traditional trade flows, theundertakings covered by the Decision chose to substitute themselves for theCommission and began to act in the manner of a private cartel. Thus, followingthe expiry of the quota system on 30 June 1988, the undertakings in questionendeavoured to replace the public mechanisms established during the crisis regimeby private measures adopted jointly, particularly within the Poutrelles Committee.

584.

    This reaction was in no way required, and was in no way provoked or occasioned,by the monitoring and consultation regime introduced by DG III after July 1988.

585.

    In addition, the Court finds that the infringements, and in particular the exchangesof information objected to in the Decision, were secret and that there is nothing tosuggest that purchasers, other producers or the Commission were informed ofthem. On the contrary, the documents on the case-file which have already beenanalysed indicate that the undertakings took care to hide their activities from theCommission, to the point, inter alia, of organising a special meeting of Eurofercommittees for drafting the minutes of the meetings.

586.

    It must therefore be concluded that, at the end of the manifest crisis regime, thebeam producers in question in the Decision, acting in concert and against theexpress wishes of the Commission, as set out in particular in the press release of4 May 1988 relating to the Stainless Steel case, secretly substituted their ownsystem of collective organisation of the market for the public management of thesector, with the objective of forestalling or weakening the effects of normalcompetition. Such conduct is prohibited by Article 65(1) of the Treaty.

587.

    Furthermore, the question whether undertakings engaged in a concerted practiceprohibited by Article 65(1) of the Treaty by confining themselves to a generaldiscussion and a reciprocal exchange of intentions in regard to prices, of the kinddescribed by Mr Kutscher, for the purpose of informing the Commission of markettrends, is irrelevant for the purposes of the present judgment. First, that was notthe purpose of the agreements and concerted practices in question. Second, theCommission did not put in issue that type of conduct in the Decision. Third, in thiscase, the contacts between producers prior to the exchanges of views with theCommission on the main parameters and market trends in no way requiredcommission of the infringements which the Decision found to have taken place. Finally, in so far as the applicants did not honestly and fully reveal their activitiesto the Commission, they cannot claim that they are exempt from the prohibitionof Article 65(1) of the Treaty.

588.

    The pleas and arguments put forward by the applicants on the basis of DG III'sactions, on which they rely in support of the claims for annulment of Article 1 ofthe Decision, must therefore be rejected in their entirety.

E — Misuse of powers

589.

    In its reply, the applicant points out that the fine was fixed on the day after it hadconfirmed to the Commission, at a meeting attended by Commission MembersBangemann and Van Miert, that it would not participate in the plans to restructurethe steel industry as it had received insufficient assurances concerning theauthorisation of State aid in the future. The overwhelming impression, as relayedby press reports at the time, was that the very high fines imposed in the Decisionwere intended to penalise steel producers for not accepting the Commission'srestructuring plan, and that the large fine imposed on the applicant reflected thatanimus. The applicant accordingly requests the Court to carry out a full

examination of all the events leading up to the final determination of the level offines.

590.

    This argument is similar to the plea of misuse of powers specifically put forwardby a number of applicants alleging that, instead of carrying out its responsibilitiesunder the Treaty, in particular Article 58 thereof, the Commission sought to'force‘ producers to carry out the restructuring which the Commission regardedas vital and 'penalised‘ their refusal by imposing heavy fines in the Decision,adopted the day after the negotiations in question had been broken off.

591.

    The Court points out that, in parallel to the administrative procedure conductedby DG IV in this case, DG III conducted negotiations with the steel industry tobring about a thorough restructuring of the industry, partially financed throughCommunity funds. Those negotiations were broken off, in the absence of anyagreement between the parties, on 15 February 1994, the day before the Decisionwas adopted, during a meeting attended by representatives of the industry andCommission Members Bangemann and Van Miert.

592.

    According to settled case-law, a measure may amount to a misuse of powers onlyif it appears, on the basis of objective, relevant and consistent factors, to have beentaken with the exclusive purpose, or at any rate the main purpose, of achieving anend other than that stated or of evading a procedure specifically prescribed fordealing with the circumstances of the case (see, for example, Case C-331/88 Fedesaand Others [1990] ECR I-4023, paragraph 24, Case T-143/89 Ferriere Nord vCommission [1995] ECR II-917, paragraph 68, and Case T-57/91 NALOO vCommission [1996] ECR II-1019, paragraph 327).

593.

    The prosecution and punishment of infringements in competition matters are alegitimate objective of Community action, in accordance with the fundamentalprovisions of Articles 3 and 4 of the Treaty. If the commission of suchinfringements has actually been proved and it has been established that the fineshave been calculated in an objective and proportionate way, the decision imposingsuch fines, in accordance with Article 65(5) of the Treaty, cannot be regarded asbeing vitiated by misuse of powers except in exceptional circumstances.

594.

    In this case, neither the co-existence of parallel negotiations between theCommission and the industry on restructuring the European steel industry, datingback to the 1980s, or even the 1970s, nor the 'coincidence‘ between the failure ofthose negotiations and the adoption of the Decision, and the questions which thisraised among some members of the European Parliament or journalists, constitutesper se evidence of misuse of powers.

595.

    Nor has the Court found, in the file submitted to it under Article 23, any evidenceto establish that the procedure followed here for applying Article 65 of the Treatywas used for the purpose of forcing the steel industry to restructure itself or to

penalise its lack of cooperation in that regard. There is indeed no reason tosuspect that the procedure did not follow a normal course, from the firstinspections in January 1991 to the adoption of the Decision on 16 February 1994,and in between the statement of objections notified to the undertakings concernedon 6 May 1992, the analysis of their replies sent around August 1992, their hearingin January 1993, the internal investigation carried out at the request of theinterested parties in January/February 1993, the sending of the minutes of thehearing in two parts, on 8 July 1993 and 8 September 1993, and the preparationof the draft decision, with translations into the various languages and consultationof the various services concerned. Furthermore, the applicant has not challengedthe Commission's statement that the hearing was postponed from September 1992to January 1993, a period of approximately four months, at the actual request ofsome of the undertakings, in order to enable their lawyers to concentrate on theirdefence in the antidumping proceedings instituted against them, at that time, by theAmerican authorities.

596.

    Finally, the investigation by the Court has failed to reveal any evidence establishingthat the attitude shown by the applicant in regard to the restructuring plans for thesteel industry was taken into account when the amount of the fine imposed on itwas being calculated.

597.

    The applicant's argument alleging misuse of powers must therefore be rejected asunfounded.

The alternative claim for annulment of Article 4 of the Decision or, at least, reduction of the fine

Preliminary observations

598.

    By Article 4 of the Decision a fine of ECU 32 000 000 was imposed on theapplicant for the infringements described in Article 1. The criteria taken intoconsideration in determining the general level of the fines and the amounts of theindividual fines are set out in recitals 298 to 317 and 319 to 324 of the Decisionrespectively.

599.

    In reply to the Court's questions, the Commission provided explanations as to themethod used for calculating the fines and produced a number of tables explainingthat calculation for each of the undertakings concerned (see annex 6 to its reply of19 January 1998, its reply of 20 February 1998 and the tables produced on19 March 1998).

600.

    It follows from that information that the Commission determined the fine accordingto a 'base rate‘ representing 7.5% of Community sales during 1990 of beamsmanufactured by the undertaking concerned. That percentage was apportionedamong the three types of infringement referred to in recital 300 of the Decision,

in accordance with the following formula: price-fixing: 3%, of which 2.5% was forthe agreements on base prices and 0.5% for the agreements harmonising extras;market sharing: 3%; exchanges of information: 1.5%.

601.

    The Commission weighted those percentages on the basis, in particular, of theduration and geographic extent of each infringement.

602.

    Thus, in order to adjust the fines in light of the duration of each infringement, theCommission applied a coefficient obtained by dividing the number of monthsactually taken as the duration of the infringement by the maximum number of 30months, except with regard to the agreements on the harmonisation of the pricesof extras. Likewise, in order to adjust the fines in light of the geographic extent ofeach infringement, in so far as certain infringements related solely to one or morenational markets, the Commission applied a percentage corresponding to the shareof apparent total Community consumption represented by the relevant market(s)(Germany: 21%; France: 17%; United Kingdom: 17%; Spain: 15%; Italy: 14%;Netherlands: 7%; Belgo-Luxembourg Economic Union: 6%; Denmark: 2%).

603.

    Where appropriate, certain increasing or decreasing coefficients were applied toeach infringement in order to take account of aggravating or extenuatingcircumstances.

604.

    Finally, the total amount resulting from the calculation set out above was increasedby one third in the case of the applicant, Thyssen and Unimétal on grounds of re-offending.

605.

    According to the Commission's reply of 19 March 1998, the fine imposed on theapplicant was calculated as follows, on the basis of a relevant turnover of ECU 401million:

(a) Price-fixing agreements

								Millions ecus
PoutrellesCommittee	401	x	2.5 %			x	27/30	9.0225
Italian market	401	x	2.5 %	x	14 %	x	3/30	0.1404
Danish market	401	x	2.5 %	x	2 %	x	30/30	0.2005
Spain/UnitedKingdom	401	x	2.5 %	x	32 %	x	3/30	0.3208
Harmonisation ofextras	401	x	0.5 %					2.0050
Extenuatingcircumstance							Total	(0.2005) 11.4887
(b) Market-sharing agreements
Traversomethodology	401	x	3 %			x	6/30	2.4060
French market	401	x	3 %	x	17 %	x	3/30	0.2045
Italian market	401	x	3 %	x	21 %	x	3/30	0.2526
Italy/United Kingdom	401	x	3 %	x	31 %	x	30/30	3.7293
Spain/United Kingdom	401	x	3 %	x	32 %	x	8/30	1.0266
							Total	7.6190
(c) Exchange ofinformation	401	x	1.5 %			x	25/30	5.0125
Total(a)+(b)+(c)								24.1202
Increase of 33 % for re-offending     8.0401
							Total	32.1603
Final amount ofthe fine								32.0000

Summary of the parties' arguments

606.

    In the sixteenth to twenty-sixth pleas in law in its application, the applicant sets outa series of arguments for annulment or reduction of the fine.

607.

    The applicant first complains that the Commission relied merely on its turnover asevidence of its market position. In using that measure, the Commission failed tohave regard to several relevant factors, in particular the fall in its market share, thehigher value of the products and service which it supplied to the United Kingdommarket, the risk of penalising it for its very substantial investments, to which its turnover figure is in part attributable, the fact that about 70 % of its turnover wasachieved in the United Kingdom and thus bore no relation to the infringements

committed on continental markets, and the economic growth in the UnitedKingdom in 1988 and 1989.

608.

    Second, the applicant maintains in its reply that, in this case, the turnover to betaken into account for purposes of the fine is that in respect of the productsactually sold in accordance with the agreements or practices declared unlawfulunder Article 65(1) of the Treaty, rather than that in respect of all products of thattype sold by the undertaking, whether or not pursuant to unlawful agreements orpractices.

609.

    Third, the Commission failed, in recitals 302 to 304 of the Decision, adequately toanalyse the effects of the alleged infringements, either on consumers or oncompetitors or on the applicant itself in terms of profits or other benefits.

610.

    Fourth, the Commission failed to consider the pro-competitive effect of thearrangements in issue. In the conditions prevailing in the market at the relevanttime, the exchanges of information enabled the applicant to succeed in penetratingand expanding in the continental ECSC markets, where its presence had previouslybeen relatively negligible, and to gather the information about those markets whichit needed in order to succeed on them in the future.

611.

    Fifth, the Commission failed to examine either the economic circumstancesprevailing in the United Kingdom between 1988 and 1990 or the general state ofthe beams market after the crisis regime came to an end. There had been adecline in the volume of deliveries and price levels throughout the Community eversince 1990, and 1988 and 1989 must be regarded as having been exceptional years.

612.

    Sixth, the Commission was wrong to take the view that the applicant was fully andat all times involved in the implementation of the agreements in question, withouttaking into account the applicant's concern to act responsibly and lawfully. Theapplicant stresses in this regard that it was the party which initiated the request forclarification on the lawfulness of information exchanges (see appendix 4 to theapplication), that it alone sought guidance from the Commission, at a meeting on13 July 1989, on the harmonisation of the structure of extras (see appendix 9 to theapplication), that it was the first undertaking to cease exchanging individualinformation, and that it subsequently withdrew completely from the exchanges.

613.

    Seventh, the Commission wrongly failed in this case to take into account factorswhich, in its view, made the imposition of large fines inappropriate in the StainlessSteel decision, namely: (a) the undertakings concerned had been accustomed to aCommunity regime for other steel products in the operation of which they hadbeen requested by the Commission to enter into certain agreements to stabilisesupply and prices; (b) the undertakings had informed certain Commission officials,though no formal request for authorisation under Article 65(2) of the ECSC Treatywas ever made; (c) there could have been a misunderstanding about the effects of

Article 65 of the Treaty; and (d) manifest crisis measures had at various times beenapplicable to several other categories of steel products. The applicant stresses inparticular that, at the press briefing on 16 February 1994, Mr Van Miert recognisedthat, during the 'aftermath‘ of the crisis regime, 'there could have been someambiguity‘, and the Decision itself acknowledges, in recital 311, that there mayhave been 'misunderstandings‘ as to the operation of Article 65 of the Treatyduring the crisis regime.

614.

    Eighth, none of the three factors listed in recitals 305 to 307 of the Decision, thatis to say, the press release of 4 May 1988 in the Stainless Steel case, the StainlessSteel decision of 18 July 1990, and the alleged knowledge of some undertakingsthat their conduct was illegal, can be regarded as aggravating in the applicant'scase.

615.

    Ninth, the allegation of recidivism, which does not appear in the Decision itself (thelatter merely referring, in recital 306, to the Stainless Steel decision) and which wasfirst made against it by Commission Member Van Miert at his press briefing on16 February 1994, is not sustainable since neither the factor of recidivism nor anyother aggravating factor based on the Stainless Steel decision was mentioned in thestatement of objections as a matter which the Commission proposed to take intoaccount when assessing the amount of any fines to be imposed. Accordingly, theCommission failed to give the undertakings the necessary details to enable them todefend themselves against the imposition of a fine, thereby breaching their right toa fair hearing and violating an essential procedural requirement. According to theapplicant, the factor of recidivism and the position of the applicant under theStainless Steel decision form part of the 'main factual and legal criteria capable ofattracting a fine‘ which must be set out in the statement of objections. Theapplicant denies, in any event, that it was a recidivist.

616.

    Tenth, having regard to the uncertainty existing, both within the steel industry andin the Commission, as to the way in which Article 65 of the Treaty was to beapplied after June 1988, particularly as regards information exchanges and theharmonisation of extras, and in view of the Commission's refusal to provide anyguidance, any infringements which the applicant may have committed are notsufficiently serious to warrant a fine of the level imposed on it.

617.

    Eleventh, the applicant complains that, in recital 314 of the Decision, theCommission described the infringements as being of long duration. In particular,the undertakings were given no leeway to adapt to normal competitive conditionsafter the end of the period of manifest crisis, and no guidance was given, even afterthe Stainless Steel decision, concerning the Commission's position on how Article65 of the Treaty should be correctly applied.

618.

    Twelfth, the applicant submits that the Commission infringed the principles ofequal treatment and of proportionality, having regard to the fines imposed on the

other producers in the present context, those imposed in the Stainless Steeldecision, and the objectives which Article 65 of the Treaty is designed to achieve.

619.

    In their joint pleading at the hearing, the applicants also submitted that:

(a)    the Commission did not adequately indicate the extent to which the conductin issue had an anti-competitive effect, whereas Article 65 of the Treatyrequires evidence of such an effect. In particular, the explanations given inrecitals 302 and 303 of the Decision, concerning the additional benefitsallegedly obtained as a result of the agreed price increases, are gainsaid bythose proffered by Mr Kutscher in his testimony. According toMr Kutscher, such increases could have resulted from the market situationobtaining at the time;

(b)    the Commission ought to have taken account, in extenuation, first, of thefact that the conduct at issue was not intended to restrict production,technical development or investment, within the meaning of Article 65(5)of the Treaty, and, second, of the differences between the ECSC Treaty andthe EC Treaty;

(c)    the Commission was wrong to impose a separate fine for the information-exchange systems, since, before the Court, these had been classified asancillary to other infringements;

(d)    the Commission unjustifiably imposed fines which were generally heavierthan those imposed in its Stainless Steel decision and Decision 94/815/ECof 30 November 1994 relating to a proceeding under Article 85 of the ECTreaty (Case IV/33.126 and 33.322 — Cement) (OJ 1994 L 343, p. 1)(hereinafter 'the Cement decision‘ or 'the Cement case‘);

(e)    the Commission applied twice, first at the Community level and then at thelevel of the different national markets, the partial rates attributed to thevarious aspects of infringement relating to the price-fixing agreements andthe market-sharing agreements, with the result that the actual base rate ofthe fine was 13% and not, as the Commission submits, 7.5%.

620.

    The Commission rejects the applicant's arguments, pointing out in particular thatit was entitled to take into account, for the purposes of fixing the fine, theapplicant's earlier participation in the infringements impugned in the Stainless Steelcase. However, the Commission confirmed, in reply to the questions put by theCourt (see point 33 of its reply of 19 January 1998) and at the hearing, that theStainless Steel decision was not a decisive factor in increasing the applicant's finefor re-offending. According to the Commission, the fact that the undertakingsconcerned were the subject of the inspection referred to in recital 305 of theDecision and that they received, at the end of 1988, a statement of objections in

those proceedings ought to have served as a specific warning and distinguishes theirsituation from that of the other undertakings on which fines were imposed in thatcase.

Findings of the Court

621.

    Article 65(5) of the Treaty provides that:

'On any undertaking which has entered into an agreement which is automaticallyvoid, or has enforced or attempted to enforce ... an agreement or decision whichis automatically void ... or has engaged in practices prohibited by paragraph 1 ofthis Article, the Commission may impose fines or periodic penalty payments notexceeding twice the turnover on the products which were the subject of theagreement, decision or practice prohibited by this Article; if, however, the purposeof the agreement, decision or practice is to restrict production, technicaldevelopment or investment, this maximum may be raised to 10% of the annualturnover of the undertakings in question in the case of fines, and 20% of the dailyturnover in the case of periodic penalty payments.‘

—     The statement of reasons in the Decision explaining the fine

622.

    According to the Court's case-law, the statement of reasons required under Article15 of the Treaty must enable the person concerned to ascertain the matters reliedupon to justify the measure adopted so that, if necessary, he can defend his rightsand verify whether the decision is well founded, and, secondly, must enable theCommunity judicature to review the legality of the decision. The requirement fora statement of reasons must be considered in the light of the circumstances of thecase, in particular the content of the measure in question, the nature of the reasonsrelied on and the context in which the measure was adopted (NALOO vCommission, cited above, paragraphs 298 and 300).

623.

    So far as a decision imposing fines on several undertakings for a breach ofCommunity competition rules is concerned, the scope of the obligation to providereasons must, in particular, be assessed in light of the fact that the gravity of theinfringements must be determined by reference to a variety of factors such as theparticular circumstances of the case, its context and the dissuasive element of fines,there being no binding or exhaustive list of criteria which must be applied (orderof the Court of Justice in Case C-137/95 P SPO and Others v Commission [1996]ECR I-1611, paragraph 54). Furthermore, the Commission enjoys a margin ofdiscretion when fixing the amount of each fine and cannot be regarded as beingobliged to apply a precise mathematical formula for that purpose (judgment inCase T-150/89 Martinelli v Commission [1995] ECR II-1165, paragraph 59).

624.

    In the present case, the Court finds that the Decision contains, in recitals 300 to312, 314 and 315, an adequate and relevant statement of the factors taken intoaccount in assessing the general gravity of the various infringements found to havebeen committed. Those indications are, moreover, supplemented, with regard tothe exchange of information referred to in recital 300, by the detailed explanationsin recitals 49 to 60 and 266 to 272 of the Decision.

625.

    The Commission, furthermore, concluded in recital 314 of the Decision that therehad been an infringement of long duration. Article 1 of the Decision details theperiod taken into account for each infringement and thus expresses the principlethat partial fines corresponding to the different infringements are to be brokendown on the basis of their duration. The Court finds this reasoning adequate.

626.

    In its judgment in Case T-148/89 Tréfilunion v Commission [1995] ECR II-1063,paragraph 142, the Court stressed that it was desirable for undertakings — in orderto be able to define their position in full knowledge of the facts — to be able todetermine in detail, in accordance with any system which the Commission mightconsider appropriate, the method of calculation of the fine imposed upon them bya decision for infringement of the rules on competition, without being obliged, inorder to do so, to bring court proceedings against the Commission decision.

627.

    That applies a fortiori where, as here, the Commission has used detailedarithmetical formulas to calculate the fines. It is desirable in such a case that theundertakings concerned and, if need be, the Court should be in a position to checkthat the method employed and the steps followed by the Commission are free oferror and compatible with the provisions and principles applicable in regard tofines, and in particular with the principle of non-discrimination.

628.

    It must, however, be pointed out that such figures, provided at the request of oneparty or of the Court pursuant to Articles 64 and 65 of the Rules of Procedure, donot constitute an additional a posteriori statement of reasons for the Decision, butare rather the translation into figures of the criteria set out in the Decision wherethey are themselves capable of being quantified.

629.

    In this case, although the Decision does not contain any indications as to how thefine was calculated, the Commission provided, during the present proceedings, atthe request of the Court, figures relating, in particular, to the breakdown of the fineaccording to the various infringements with which the undertakings were charged.

630.

    It follows that, subject to examination of the increase of the fine on account of re-offending, which is considered separately below (paragraphs 631 to 642), theDecision is not vitiated by a deficient statement of reasons.

—     The increase in the fine on account of re-offending

631.

    Recitals 305 and 306 of the Decision read as follows:

'305)    The Commission press release of 2 May 1988 made at the time of theinspection in the Stainless Steel case leading to Decision 90/417/ECSC gavea clear warning that the Commission would not tolerate illegal arrangementsorganised by the industry.

306)    In addition, some of the undertakings involved (British Steel, Thyssen andUsinor Sacilor) were fined for their participation in the Stainless Steel flatproducts cartel in that Decision which was published in the Official Journalof the European Communities in August 1990 and was widely discussed inboth the specialised and general press. The attitude of the Commissiontowards illegal agreements and concerted practices had therefore been clearfrom at least May 1988.‘

632.

    It appears from the answers given by the Commission during these proceedingsthat, in the case of the three undertakings mentioned in recital 306 (the applicant,Unimétal and Thyssen), the total amount of the basic fine, obtained by adding thesub-amounts for the various infringements listed in Article 1, was increased by onethird by reason of the recidivist nature of those three undertakings' conduct, regardbeing had to the Stainless Steel case closed by decision of 18 July 1990.

633.

    The Court finds that recitals 305 and 306 of the Decision do not contain a sufficientstatement of reasons to enable the undertakings in question to ascertain that theirfine was thus increased on account of re-offending, to comprehend the size of thatincrease, or to ascertain the reasons for which the Commission considered that suchan increase was justified.

634.

    Recidivism, as understood in a number of national legal systems, implies that aperson has committed fresh infringements after having been penalised for similarinfringements. In this case, the only factor of this kind relates to the fact that theapplicant was penalised by the Stainless Steel decision of 18 July 1990. Yet thegreater part of the infringement period, from 30 June 1988 to the end of 1990,taken into account in the present case against the applicant, pre-dates the StainlessSteel decision.

635.

    It follows that, in so far as the increase in the fine imposed on the applicant, inparticular, was based on the consideration that the Commission had alreadypenalised it for similar infringements in the Stainless Steel decision, the Decisionis vitiated by an error of law, since that fact cannot be taken into account as anaggravating circumstance in relation to infringements committed before theStainless Steel decision was adopted.

636.

    Next, the Court finds that, in so far as the Commission relies on the fact that it had'warned‘ the undertakings through the press release published in the StainlessSteel case (recital 305 of the Decision), this consideration does not make it possible

to distinguish the position of the three undertakings on whom the increase wasimposed from that of the other addressees of the Decision.

637.

    The Commission explained, however, before the Court that the fact that they hadbeen the subject of an inspection in the Stainless Steel case and that they hadreceived a statement of objections in those proceedings at the end of 1988 oughtto have been a particularly clear warning to the three undertakings concerned.

638.

    The Court finds, first, that the inspection carried out in May 1988 did not, in itself,constitute a sufficiently clear warning, equivalent to a substantiated finding, in orderto be treated, in the present context, as the same as a decision upon which afinding of recidivism could be based. The checks provided for by the firstparagraph of Article 47 of the Treaty are not for declaring facts found to beincompatible with the Treaty but their sole objective is to enable the Commissionto gather the necessary information to check the actual existence and scope of agiven factual and legal situation (Case 136/79 National Panasonic v Commission[1980] ECR 2033, paragraph 21).

639.

    Second, although recital 305 of the Decision refers to the inspection carried out atthat time, there is no mention in the Decision of explanations specifically given tothe three undertakings concerned, in connection with that inspection, or, inparticular, of the reasons stated in the warrants or investigation decisions. Thereis therefore nothing to explain how the position of the three undertakingsconcerned is different from that of the other producers.

640.

    Furthermore, the Decision makes no reference to the statement of objections in theStainless Steel case. The reasons for a decision must appear in the actual body ofthe decision and, save in exceptional circumstances, explanations given ex post factocannot be taken into account (see, most recently, Case T-334/94 Sarrió vCommission [1998] ECR II-1439, paragraph 350).

641.

    In any event, a statement of objections is, by its very nature, merely a preparatoryact not in the nature of a decision and does not require the undertaking concernedto alter or reconsider its commercial practices (Case 60/81 IBM v Commission[1981] ECR 2639, paragraphs 17 to 19; see also 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 34). Furthermore, the Commission has indicated beforethe Court neither the date nor the content of the statement of objections on whichit relies.

642.

    It follows that Article 4 of the Decision must be annulled to the extent to which itimposed on the applicant an increase in the fine for the recidivist nature of itsconduct.

—    The criterion of turnover used in calculating the fine

643.

    As regards the applicant's argument that, in using the criterion of turnover for thepurpose of calculating the fine, the Commission did not take account of a numberof factors which might have exaggerated the scale of its turnover in relation to thatof its competitors, it must be remembered that under Article 65(5) of the Treatythe Commission is required to take into account the turnover of the undertakingconcerned as the basic criterion for calculating the fine. The Treaty is based on theprinciple that the turnover in the products which were the subject of a restrictivepractice constitutes an objective criterion giving a proper measure of the harmwhich that practice does to normal competition.

644.

    In the present case, the applicant has failed to establish that the Commission's useof the same percentage figure for turnover in calculating the fine for undertakingsinvolved in the same infringement resulted in any discrimination whatever to itsdetriment. On the contrary, in the absence of extenuating or aggravatingcircumstances, or other duly established exceptional circumstances, the Commissionis required, by virtue of the principle of equal treatment, to apply, for the purposeof calculating the fine, the same reference rate to undertakings which took part inthe same infringement.

645.

    As regards the applicant's argument that the relevant turnover is the turnover inproducts actually sold pursuant to the agreements in question and not the turnoverin all products of the same type sold by the undertaking, whether or not pursuantto unlawful practices, Article 65(5) of the Treaty provides that the Commission mayimpose fines equal to 200% of the turnover in the products which were the subjectof the agreement, except where the purpose of the agreement is to restrictproduction, technical development or investment, in which case the fine may beincreased to up to 10% of the annual turnover of the undertaking in question.

646.

    Since the applicant fully participated in agreements and concerted practices whichaffected the entire ECSC market, the Commission was entitled to take account ofall of its beams sales within the Community, adjusting the fines according to thegeographic extent of each particular infringement.

—     The economic impact of the infringements

647.

    The applicant's argument that the Commission exaggerated, in recitals 302 to 304of the Decision, the economic impact of the infringements must be considered inconjunction with the argument of other applicants in the parallel cases, which alsocriticise the Commission essentially for not having seriously studied the economiceffects of the cartel on the market and of having based its findings on mereconjectures, whereas the Commission is under an obligation to examine theeconomic implications of the infringements in order to assess their seriousness andto take into account, if appropriate, the limited nature of those implications (Joined

Cases 6/73 and 7/73 Istituto Chemioterapico Italiano and Commercial Solvents vCommission [1974] ECR 223, paragraph 51 et seq., and Joined Cases 40/73 to48/73, 50/73, 54/73, 55/73, 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Othersv Commission [1975] ECR 1663, paragraph 614 et seq.), particularly within thecontext of a regulated market such as that of the ECSC.

648.

    In their joint pleading on this aspect of the case, the applicants combined thisargument with the contention that Article 65(5) of the Treaty covers only conductwhich has an anti-competitive effect, and not conduct which merely has thatobjective.

649.

    The applicants also referred to the testimony of Mr Kutscher, according to which,during a favourable economic period, as was the case between 1988 and 1990, itis normal to see undertakings' prices increase, and that this occurs almostautomatically, since each will seek to profit from the rises decided on by itscompetitors, so that it could not be inferred from the profits achieved at the timeby the undertakings that they were acting in concert on prices. According to theapplicants, that testimony controverts the scenario depicted in recitals 302 to 304of the Decision.

650.

    As the Court has already indicated, it is not necessary, in order to find that therehas been an infringement of Article 65(1) of the Treaty, for it to be established thatthe conduct in question actually had an anti-competitive effect. The same applieswith regard to the imposition of a fine under Article 65(5) of the Treaty.

651.

    It follows that the effect which an agreement or concerted practice may have hadon normal competition is not a conclusive criterion in assessing the proper amountof the fine. As the Commission has correctly pointed out, factors relating to theintentional aspect, and thus to the object of a course of conduct, may be moresignificant than those relating to its effects (see the Opinion of Judge Vesterdorf,acting as Advocate General in the Polypropylene cases, cited above, at [1991]ECR II-1022 et seq.), particularly where they relate to infringements which areintrinsically serious, such as price-fixing and market-sharing. The Court takes theview that those factors are present here.

652.

    The defendant, however, acknowledges that the assessment of the effects of aninfringement may be relevant, in regard to fines, where the Commission bases itsdecision expressly on an effect and is unable to prove it or to provide good reasonswhy it should be taken into account (see, also in this regard, the Opinion of JudgeVesterdorf, acting as Advocate General in the Polypropylene cases, cited above, at[1991] ECR II-1023).

653.

    On this point the Commission explained, at recitals 222 and 293 of the Decision,that the undertakings in question represented a large part of the Community beammarket, all the major producers being involved, and that the effect of the

infringements was thus far from negligible. The Commission also referred, inparticular in recital 222, to the producers' own documents, reflecting their opinionthat the price increases in question had been accepted by customers. In recital 303of the Decision, the Commission calculated the total increase in revenue thusobtained at not less than ECU 20 million for the first two quarters of 1989.

654.

    In those circumstances, the Court takes the view that the Commission was quiteentitled, when calculating the fine, to take account of the appreciable economicimpact which the infringements had on the market.

655.

    It must, however, be pointed out that, in his testimony at the hearing, Mr Kutscher,who acquired considerable experience in the steel sector while an official withDG III, expressed the view that price increases on the scale of those seen on themarket in this case, at the material time, were normally to be expected, given thefavourable economic trend at the time. Mr Kutscher indicated that this situationof fact was one of the reasons why he had not suspected that a cartel had beenorganised by producers.

656.

    Also, the working method adopted by the Commission when preparing forwardprogrammes and in the context of the monitoring system under DecisionNo 2448/88 meant that the undertakings had to convene prior to their meetingswith DG III and exchange their views on the economic situation of the market andfuture tendencies, particularly in regard to prices, in order to be able to present asynthesis of those views to DG III. Preparatory meetings of this kind, involving thesenior commercial managers of the undertakings concerned, were, moreover,necessary to the success of the monitoring system, since the Commission was notitself in a position to collect the individual data provided by the undertakings andhave it analysed timeously, as Mr Kutscher confirmed at the hearing. It is alsocommon ground that the data provided by the undertakings during those meetingswere useful to DG III, particularly in preparing the forward programmes.

657.

    It is also clear from Mr Kutscher's testimony that, at the time, DG III wasreasonably well disposed to seeing the steel industry — still fragile after a longperiod of losses — once again making profits, thus reducing the risk of a return tothe manifest crisis regime.

658.

    The Court finds that, by behaving in this way within the context of the system ofmonitoring, between mid-1988 and the end of 1990, DG III introduced a degree ofambiguity into the meaning of the concept of 'normal competition‘ as used in theECSC Treaty. Although it is unnecessary, for purposes of the present judgment,to rule on the extent to which undertakings could exchange individual data for thepurpose of preparing for consultation meetings with the Commission withoutthereby acting contrary to Article 65(1) of the Treaty, since that was not theobjective of the meetings of the Poutrelles Committee, it none the less remains afact that the effects of the infringements committed in this case cannot bedetermined by simply comparing the situation resulting from the anti-competitive

agreements with that which would have existed had there been no contact whateverbetween the undertakings. In this case, it is more relevant to compare the situationresulting from the anti-competitive agreements with that which was envisaged andaccepted by DG III, in which the undertakings were supposed to meet and engagein general discussions, particularly in regard to their forecasts on future prices.

659.

    Even in the absence of agreements such as those concluded in the present casewithin the Poutrelles Committee, it cannot be excluded that exchanges of viewsbetween undertakings on their price 'forecasts‘, of the kind regarded as legitimateby DG III, would have made it easier for the undertakings concerned to adopt aconcerted course of conduct on the market. Thus, on the assumption that theundertakings confined themselves to an exchange of views which was general andnot binding in regard to their expectations in regard to prices, solely for thepurpose of preparing for the consultation meetings with the Commission, andrevealed to the Commission the precise nature of those preparatory meetings, itcannot be ruled out that such contacts between undertakings, accepted by DG III,may have reinforced some parallel conduct on the market, particularly with regardto the price increases occasioned, at least in part, by the favourable economictrends in 1989.

660.

    The Court accordingly finds that, in recital 303 of the Decision, the Commissionexaggerated the economic impact of the price-fixing agreements found here, ascompared with the competition which would have existed had it not been for suchinfringements, having regard to the favourable economic climate and the latitudegiven to undertakings to conduct general discussions on price forecasts, betweenthemselves and with DG III, in the context of meetings organised by DG III on aregular basis.

661.

    Taking those matters into account, the Court holds, in the exercise of its unlimitedjurisdiction, that the fine imposed on the applicant for the various price-fixingagreements and concerted practices should be reduced by 15%. On the otherhand, it finds that there are no grounds for granting such a reduction in relation toeither the market-sharing agreements or the exchanges of information on ordersand deliveries, to which the same considerations do not apply.

—    The aggravating circumstances confirmed in recitals 305 to 307 of theDecision

662.

    The Court has already found, in Part D above, that the press release of 4 May 1988referred to in recital 305 of the Decision constituted a clear warning to theundertakings that they were under an obligation to comply with Article 65(1) of theTreaty. The Commission was entitled to take account of that matter for thepurpose of calculating the fine.

663.

    With regard to the Stainless Steel decision, the Court has already found that thisdid not constitute an aggravating circumstance which could legitimately be usedagainst the applicant (see paragraphs 634 and 635 above).

664.

    Finally, the Court finds that the three items of evidence specifically mentioned inrecital 307 of the Decision, that is to say the internal notes prepared by UsinorSacilor, Peine-Salzgitter and Eurofer, are not relied on as a specific aggravatingcircumstance against those three parties, but tend rather to show, in conjunctionwith recitals 305 and 306, that all of the undertakings to which the Decision wasaddressed were aware that they were infringing the prohibition set out in Article65(1) of the Treaty. For the reasons already indicated (see Part D above), theCourt finds that the applicant could not have been unaware that its conduct wasunlawful.

665.

    In those circumstances, the Court finds, in the exercise of its unlimited jurisdiction,that there is no reason to set aside the aggravating circumstance taken into accountin this regard against the applicant in recital 307 of the Decision, and it is notnecessary to determine whether the three documents mentioned in that recital maybe used against it.

—    The extenuating circumstances relied on by the applicant

666.

    The applicant has not established that it informed the Commission of itsparticipation in the infringements impugned prior to the first checks carried out inJanuary and March 1991 or that it sought clarification as to the legality of theagreements and practices in question, of the existence of which the Commissionwas unaware. On the contrary, the applicant continued throughout the entireadministrative procedure to deny that it had participated in the infringements ofArticle 65(1) of the Treaty.

667.

    The fact that the applicant withdrew from the exchanges of information on ordersand deliveries earlier than a number of other undertakings has already been takeninto account for the purpose of calculating the fine.

668.

    The Court has been unable to identify any other extenuating circumstance whichought to have been taken into account in the applicant's favour.

—    The duration of the infringement

669.

    The Court considers that unlawful conduct manifested by participation in a seriesof agreements and restrictive practices relating to price-fixing, market-sharing andthe exchange of confidential information, within the institutionalised framework ofnumerous meetings between producers, for a duration of 25 to 30 months, mayproperly be regarded as being of long duration. Furthermore, contrary to what the

applicant claims, it does not appear from the documents before the Court that theCommission took the period prior to 30 January 1988 into account for the purposeof calculating the fine.

—     The fine imposed on the applicant for its participation in the information-exchange systems

670.

    For the reasons set out in paragraph 375 et seq. above, the Court has alreadyfound that the applicant's participation in the information-exchange systemsdescribed in recitals 263 to 272 of the Decision must be regarded as a separateinfringement of Article 65(1) of the Treaty. It follows that the Commission wasentitled to take that separate infringement into account when calculating the fineimposed on the applicant.

—     Double application of the base rate used to fix the fine

671.

    At the hearing the applicants submitted that the use of the base rate of 7.5% ofturnover resulted in application of an actual base rate of 13%, consisting of 2.5%for the pricing agreements within the Poutrelles Committee, plus 0.5% forharmonisation of extras, plus 2.5% for the pricing agreements on the variousindividual national markets, plus 3% for the market-sharing agreements concludedwithin the Poutrelles Committee, plus 3% for the agreements to share the variousnational markets, plus 1.5% for information exchange.

672.

    It is indeed apparent from the information provided by the Commission duringthese proceedings that, as the applicants have pointed out, the fine could in theoryhave amounted to 13% of turnover, as a result of adding the various ratesmentioned in paragraph 600 above. However, in its calculations, the Commissionalso varied the amounts of the fines according to the duration and geographicalextent of each infringement, so that in practice the fines imposed on theundertakings are far from the base rate of 7.5% and still further from a rate of13%. Consequently, the applicants' argument has no bearing on the amount of thefines actually imposed on them.

673.

    In those circumstances, even assuming that some of the infringements overlap inpart (for example, the agreements on prices within the Poutrelles Committee andsome of the agreements on prices on the various national markets) and that therewas a relationship between certain infringements (for instance, between themonitoring of orders and deliveries and certain market-sharing agreements), theCourt finds, in the exercise of its unlimited jurisdiction, that there are no groundshere for reducing the fine imposed on the applicant, since the overall amount ofthe fine, as fixed below, represents an appropriate sanction for all of theinfringements in question.

674.

    For those reasons, the Court finds that the argument thus put forward by theapplicants at the hearing must be rejected.

—     The general level of the fines imposed in the Decision in comparison withother ECSC decisions of the Commission and with the provisions of Article65(5) of the Treaty

675.

    In its application, and in the context of the joint pleadings at the hearing, theapplicant referred to the Stainless Steel decision in challenging the general level ofthe fines. That line of argument cannot be upheld.

676.

    In the first place, all of the infringements taken into account for the fine imposedin the Stainless Steel decision had been committed during the period of manifestcrisis. Second, the undertakings have not established in the present context that theDG III officials were aware of the practices objected to in the Decision, so that thecorresponding extenuating circumstance, recognised in the Stainless Steel decision,cannot be taken into account in the present case. Third, if account is taken of thewarning represented, in particular, by the press release mentioned in recital 305 ofthe Decision, there can be no question, as there was at the time of the StainlessSteel decision, of any possible misunderstanding as to the scope of Article 65(1) ofthe Treaty.

677.

    As regards the argument that the combined effect of the Stainless Steel decisionand certain other Commission decisions in the 1970s and 1980s suggested that itspolicy was not to impose heavy fines when applying Article 65(1) of the Treaty, itsuffices to point out that the fact that the Commission penalised certain types ofinfringement in the past with fines of a particular level cannot prevent it fromraising that level within the limits indicated in Article 65(5) of the Treaty if that isnecessary to ensure the effectiveness of Community competition policy (see, byanalogy, Joined Cases 100/80, 101/80, 102/80 and 103/80 Musique DiffusionFrançaise and Others v Commission [1983] ECR 1825, paragraph 109).

678.

    Nor can the Court accept the argument, advanced at the hearing, to the effect thatthe general level of the fines is excessive having regard to the differences betweenthe EC Treaty and the ECSC Treaty. Although certain provisions of the ECSCTreaty, in particular Article 60, in themselves restrict the free operation ofcompetition, the maximum ceiling of 10% of annual turnover of the undertakingin question, provided for by Article 65(5) of that Treaty for more serious restraintsof competition, is identical to the maximum ceiling provided for by Article 15(2)of Council Regulation No 17 of 6 February 1962, the First Regulationimplementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87). The Court also points out that, in this case, Article 65(5) of theECSC Treaty allows fines up to twice the turnover in the product in question to beimposed.

679.

    While the applicants, in their joint pleadings, stressed that the infringements werenot intended to restrict production, technical development or investment, within themeaning of Article 65(5) of the Treaty, the Court finds that the Commission rightlydid not take this into account as an extenuating circumstance. Under the schemeof Article 65(5) of the Treaty, such restrictions are aggravating circumstancesallowing the normal ceiling of double the turnover in the product concerned to beexceeded. In the present case, the fine is well below that ceiling.

—     Comparison between the fines imposed by the Decision and those imposedby the Cement decision

680.

    It was also argued in the joint pleadings that, in the Cement decision, theCommission imposed fines of the order of 4% of turnover for infringementsregarded as serious and lasting ten years. From this the applicants conclude, onthe basis of a recent Commission communication (Guidelines on the method ofsetting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article65(5) of the ECSC Treaty, OJ 1998 C 9 of 14 January 1998, p. 3) ('theGuidelines‘), that in the Cement case the Commission applied a basic fine of 2%before applying increases linked to the duration of the infringements. On the basisof the same calculation, the basic rate in the present case would, they argue, cometo 6%. The amount of the fines must therefore, according to the applicants, bedivided by three.

681.

    The Court considers that no direct comparison can be made between the generallevel of the fines applied in the Decision and the level applied in the Cementdecision.

682.

    In the first place, the calculation made in the Decision, which pre-dates theGuidelines, was not carried out by having recourse to the method which is providedfor in that communication, involving a basic fine and increases in line with duration.

683.

    Second, the Cement decision also pre-dates the Guidelines and does not indicatethat it would have followed the method which they lay down.

684.

    Third, the Court considers that the factual and legal framework of the present caseis too far removed from that of the Cement case for a detailed comparison of thetwo decisions to serve any useful purpose in assessing the fine to be imposed on thepresent applicant.

685.

    It follows that, subject to what is to be said below, the applicant's argumentsrelating to the amount of the fines must be rejected in their entirety.

The Court's exercise of its unlimited jurisdiction

686.

    The Court has already annulled Article 1 of the Decision in so far as it finds thatthe applicant participated in an agreement to share the Italian market (seeparagraph 419 above). The fine imposed by the Commission for that infringementwas set at ECU 252 600.

687.

    It is necessary to point out that the market-sharing agreement between theapplicant and Ferdofin (see paragraph 434 et seq. above) concerned the UnitedKingdom market alone, not the Italian market. Contrary to the Commission'scalculations, it is thus necessary to exclude the Italian market from the factors tobe taken into account in the calculation of the fine. This involves a reduction ofECU 1 684 200, following the method used by the Commission.

688.

    For the reasons set out in paragraph 477 above, the period from 1 July 1988 to31 December 1988 must also be excluded in calculating the fine relating to theinfringement of price-fixing on the Danish market, which, in the case of theapplicant, means a reduction of the fine by ECU 40 100, following the method usedby the Commission.

689.

    The Court has also annulled the increase in the fine imposed on the applicant onaccount of the allegedly recidivist nature of its conduct, which the Commissioncalculated at ECU 8 040 100, for the reasons set out above (see paragraph 633 etseq.).

690.

    It must also be pointed out that neither Article 1 of the Decision nor the first tablesetting out the various price-fixing agreements, contained in recital 314 of theDecision, mentions the applicant as having participated in an agreement to fixprices on the Spanish market. It is clear from the detailed explanations given bythe Commission during the proceedings that a fine amounting to ECU 320 800 wasimposed on the applicant for that infringement. According to the Commission,which refers to recitals 174 and 276 of the Decision, it was apparently as the resultof a mistake that this factor was not included in recital 314 and Article 1 of theDecision.

691.

    Since the operative part of the Decision does not state that the applicantparticipated in that infringement, it cannot be taken into account in the calculationof the fine. The fine must therefore be reduced by ECU 320 800, following themethod of calculation used by the Commission.

692.

    Finally, for the reasons explained above (paragraph 652 et seq.), the Courtconsiders that the total amount of the fine imposed for the price-fixing agreementsand concerted practices should be reduced by 15% in view of the fact that theCommission exaggerated to some extent the anti-competitive effects of theinfringements which it found to have occurred. If account is taken of the reductionalready mentioned concerning the pricing agreements on the Spanish and Danishmarkets, that reduction comes to ECU 1 669 200, following the method ofcalculation used by the Commission.

693.

    Applying the Commission's method, the fine imposed on the applicant shouldtherefore be reduced by ECU 12 007 000.

694.

    By its nature, the fixing of a fine by the Court, in the exercise of its unlimitedjurisdiction, is not an arithmetically precise exercise. Moreover, the Court is notbound by the Commission's calculations, but must carry out its own assessment,taking all the circumstances of the case into account.

695.

    The Court considers that the Commission's general approach in determining thelevel of the fines (see above) is justified by the circumstances of the case. Theinfringements involving price-fixing and market-sharing, which are expresslyprohibited by Article 65(1) of the Treaty, must be treated as particularly serioussince they involve direct interference with the essential parameters of competitionon the market in question. Likewise, the systems for the exchange of confidentialinformation, in which the applicant is accused of having been involved, had apurpose similar to market-sharing according to traditional flows. All of theinfringements taken into account for the purpose of the fine were committed,following the end of the crisis regime, after the undertakings had receivedappropriate warnings. As the Court has found, the general objective of theagreements and practices in question was precisely to prevent or distort the returnto normal competition entailed by the ending of the manifest crisis regime. Theundertakings, moreover, were aware of their unlawful nature and deliberatelyconcealed them from the Commission.

696.

    Having regard to all of the foregoing and the entry into effect, on 1 January 1999,of Council Regulation (EC) No 1103/97 of 17 June 1997 laying down certainprovisions concerning the introduction of the euro (OJ 1997 L 162, p. 1), theamount of the fine must be fixed at EUR 20 000 000.

The alternative claim for repayment of the fine, plus default interest

697.

    As regards the claim for repayment of the fine, plus default interest, in the eventof its being annulled or reduced, suffice it to state that it is for the Commission totake the necessary steps to comply with the present judgment, in accordance withArticle 34 of the Treaty.

The alternative claim for annulment of the Letter

698.

    It is clear from its reply that the applicant has not maintained its claims forannulment of the Letter, following its withdrawal in Case T-151/94 R. It merelyrequests that the costs relating to that part of its action which concerns the Lettershould be borne by the defendant.

699.

    In those circumstances, the alternative claim for annulment of the Letter must bedismissed.

Costs

700.

    Under Article 87(3) of the Rules of Procedure, the Court may, where each partysucceeds on some and fails on other heads, order costs to be shared or order eachparty to bear its own costs. Since the action has been only partially successful, theCourt considers it fair in the circumstances of the case to order the applicant tobear its own costs and to pay one half of the Commission's costs, including thecosts relating to the claim for annulment of the Letter.

On those grounds,

THE COURT OF FIRST INSTANCE (Second Chamber, ExtendedComposition)

hereby:

1.    Annuls Article 1 of Commission Decision 94/215/ECSC of 16 February 1994relating to a proceeding under Article 65 of the ECSC Treaty concerningagreements and concerted practices engaged in by European producers ofbeams in so far as it finds that the applicant participated in an agreementto share the Italian market which lasted three months;

2.    Sets the amount of the fine imposed on the applicant by Article 4 ofDecision 94/215/ECSC at EUR 20 000 000;

3.    Dismisses the remainder of the action;

4.    Orders the applicant to bear its own costs and to pay half of thedefendant's costs. The defendant shall bear half of its own costs.

BellamyPotocki Pirrung

Delivered in open court in Luxembourg on 11 March 1999.

H. Jung

C.W. Bellamy

Registrar

President

Table of Contents

    The facts giving rise to the action

II - 2

    A — Preliminary observations

II - 2

    B — Relations between the steel industry and the Commission from 1970 to 1990

II - 3

        The crisis in the 1970s and the creation of Eurofer

II - 3

        The quota system established from 1980 to 1988

II - 4

        Events preceding the end of the manifest crisis regime on 30 June 1988

II - 7

        The monitoring system implemented with effect from 1 July 1988

II - 12

        The 'Stainless Steel‘ decision of 18 July 1990

II - 13

        The Commission's reflections on the future of the ECSC Treaty after 1990

II - 14

    C — The administrative procedure before the Commission

II - 14

    D — The Decision

II - 15

    Procedure before the Court of First Instance, developments following the bringing of theaction, and forms of order sought by the parties

II - 18

    The claim for annulment of the Decision

II - 23

    A — Infringement of the rights of defence

II - 23

        Summary of the applicant's arguments

II - 23

        Findings of the Court

II - 24

    B — Infringement of essential procedural requirements

II - 31

        Summary of the applicant's arguments

II - 31

        Findings of the Court

II - 33

            Admissibility

II - 33

            Absence of a quorum

II - 34

            No strict correspondence between the Decision adopted and that notified to theapplicant

II - 37

            Lack of authentication of the Decision

II - 39

            No indication as to the date on which the minutes were signed

II - 40

    C — Infringement of Article 65(1) of the Treaty

II - 41

        Fixing of prices (target prices) within the Poutrelles Committee

II - 42

            1. The facts

II - 42

                —     Preliminary observations

II - 42

                —     Agreements allegedly concluded in 1986 and 1987

II - 44

                —     Agreement on prices in Germany and France allegedly concluded priorto 2 February 1988

II - 45

                —     Target prices allegedly fixed prior to 25 July 1988

II - 45

                —     Target prices allegedly fixed on 18 October 1988

II - 46

                —     Target prices allegedly set at the meeting on 10 January 1989

II - 48

                —     Target prices for the Italian and Spanish markets allegedly set at themeeting on 7 February 1989

II - 49

                —     Target prices allegedly agreed on at the meeting of 19 April 1989

II - 50

                —     Fixing of the prices applicable in the United Kingdom from June 1989

II - 51

                —    The agreement allegedly reached at the meeting of 11 July 1989 to carryforward to the fourth quarter of 1989, on the German market, the targetprices for the third quarter of that year

II - 52

                —    The decision allegedly adopted at the meeting of 12 December 1989concerning the target prices to be achieved in the first quarter of 1990

II - 53

                —    Fixing of prices for category 2c on the French market, as revealed by theannouncement of Unimétal during the meeting on 14 February 1990

II - 53

                —    Fixing of the prices applicable in the United Kingdom in the secondquarter of 1990

II - 54

                —    Fixing of the prices applicable in the United Kingdom in the thirdquarter of 1990

II - 56

                —     The expert economic report submitted by the applicants

II - 57

                —    Conclusions

II - 57

            2. Legal analysis of the facts

II - 58

                (a)    Analysis of the incriminated conduct in relation to the categories ofagreements covered by Article 65(1) of the Treaty

II - 58

                (b)    The purpose and effect of the agreements and concerted practices inquestion

II - 63

                (c)    Analysis of the conduct in question in relation to the criterion of'normal competition‘

II - 64

                    Findings of the Court

II - 68

                    —     The context of Article 65(1) of the Treaty

II - 68

                    —     Article 60 of the Treaty

II - 70

                    —     Articles 46 to 48 of the Treaty

II - 72

        The agreements to harmonise extras

II - 73

        Market sharing under the 'Traverso methodology‘

II - 75

            Findings of the Court

II - 76

                —     The first phase of the Traverso system (fourth quarter of 1988)

II - 76

                —     The second phase of the Traverso system (first quarter of 1990)

II - 77

        Agreement to share the French market during the fourth quarter of 1989

II - 78

        Exchanges of information within the Poutrelles Committee (monitoring of orders anddeliveries)

II - 82

            Summary of the parties' arguments

II - 83

            Findings of the Court

II - 85

                —     The nature of the infringement of which the applicant is accused

II - 85

                —     Anti-competitive nature of the monitoring

II - 87

        The practices relating to the various markets

II - 91

            1. Price-fixing on the Italian market

II - 91

            2. Sharing of the Italian market

II - 92

            3. Market-sharing agreement between British Steel, Ensidesa and Aristrain

II - 94

                Arguments of the applicant

II - 94

                Findings of the Court

II - 95

            4. Market-sharing agreement between British Steel and Ferdofin

II - 97

                Findings of the Court

II - 98

        Price-fixing on the Danish market, within the framework of the activities of theEurofer/Scandinavia group

II - 101

        Conclusions

II - 106

    D —    The Commission's involvement in the infringements of which the applicant isaccused

II - 107

        Summary of the applicant's arguments

II - 107

        Summary of the hearing of witnesses

II - 112

        Findings of the Court

II - 115

            Preliminary observations

II - 115

            The Commission's conduct during the crisis period

II - 116

            Involvement of DG III in the infringements found after the end of the manifestcrisis regime

II - 120

                —     Price-fixing agreements

II - 122

                —     Agreements on harmonisation of the prices of extras

II - 124

                —     Market-sharing agreements

II - 124

                —     Exchanges of information on orders and deliveries

II - 125

                —     Other agreements

II - 128

                —     Conclusions

II - 128

    E — Misuse of powers

II - 130

    The alternative claim for annulment of Article 4 of the Decision or, at least, reduction ofthe fine

II - 132

        Preliminary observations

II - 132

    Summary of the parties' arguments

II - 134

        Findings of the Court

II - 138

            —     The statement of reasons in the Decision explaining the fine

II - 138

            —     The increase in the fine on account of re-offending

II - 139

            —    The criterion of turnover used in calculating the fine

II - 142

            —     The economic impact of the infringements

II - 142

            —    The aggravating circumstances confirmed in recitals 305 to 307 of theDecision

II - 145

            —    The extenuating circumstances relied on by the applicant

II - 146

            —    The duration of the infringement

II - 146

            —     The fine imposed on the applicant for its participation in the information-exchange systems

II - 147

            —     Double application of the base rate used to fix the fine

II - 147

            —     The general level of the fines imposed in the Decision in comparison withother ECSC decisions of the Commission and with the provisions of Article65(5) of the Treaty

II - 148

            —     Comparison between the fines imposed by the Decision and those imposedby the Cement decision

II - 149

        The Court's exercise of its unlimited jurisdiction

II - 149

    The alternative claim for repayment of the fine, plus default interest

II - 151

    The alternative claim for annulment of the Letter

II - 151

    Costs

II - 152

1: Language of the case: English.

ECR

2: —    This is the date given in the French and Spanish versions of the Decision; the German andEnglish versions give the date as 31 December 1988.