Joined Cases T-27/03, T-46/03, T-58/03, T-79/03, T-80/03, T-97/03 and T-98/03

SP SpA and Others

v

Commission of the European Communities

(Agreements, decisions and concerted practices – Producers of reinforcing bars – Decision establishing an infringement of Article 65 CS – Decision based on the ECSC Treaty after expiry of that treaty – Lack of competence of the Commission)

Summary of the Judgment

1.      ECSC – Agreements, decisions and concerted practices – Commission decision finding an infringement of Article 65 CS after the expiry of that treaty

(Art. 65(1), (4) and (5) CS; Council Regulation No 17, Arts 3 and 15(2))

2.      ECSC – Agreements, decisions and concerted practices – Competence of the Commission under Article 65(4) and (5) CS to determine and penalise an infringement of Article 65(1) CS – Disappearance on the expiry of the ECSC Treaty

(Arts 65(1), (4) and (5) CS, and 97 CS; Art. 305(1) EC; Merger Treaty)

1.      A Commission decision finding an infringement of Article 65(1) CS and imposing a fine on undertakings alleged to have participated in a cartel in breach of that provision has its legal basis solely in Article 65(4) and (5) where it refers expressly to that legal basis and contains no reference to a legal basis constituted by Article 3 and Article 15(2) of Regulation No 17. The fact that, in a second statement of objections sent to the undertakings concerned, the Commission stated that it had opened new proceedings on the basis of Regulation No 17 and referred explicitly to Article 3 of that regulation is not in itself sufficient to justify a finding that the legal basis of the decision is constituted by Article 3 and Article 15(2) of Regulation No 17.

(see paras 76, 78, 93-94, 101)

2.      Although the principles governing the succession of legal rules may lead to the application of substantive provisions which are no longer in force at the time of the adoption of a measure by a Community institution, the Commission is no longer able, after the expiry of the ECSC Treaty on 23 July 2002, to derive competence from Article 65(4) and (5) CS in order to establish an infringement of Article 65(1) CS and to impose fines on the undertakings which had participated in the infringement, since the provision constituting the legal basis of a measure must be in force at the time that it is adopted.

The Commission’s competence in that respect is not affected either by the fact that the ECSC Treaty constituted a lex specialis in relation to the EC Treaty in accordance with Article 305(1) EC, or by the indivisibility of the Community legal order resulting from the Merger Treaty and the need for coherence in the interpretation of the substantive provisions contained in the various Community treaties, or by the principles governing the succession of substantive and procedural legal rules.

(see paras 113-116, 118, 120)