Judgments nº T-24/07 of Court of First Instance of the European Communities, July 01, 2009

• Resolution Date: July 01, 2009
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-24/07

In Case T-24/07,

ThyssenKrupp Stainless AG, established in Duisburg (Germany), represented by M. Klusmann and S. Thomas, lawyers,

applicant,

v

Commission of the European Communities, represented by F. Castillo de la Torre, R. Sauer and O. Weber, acting as Agents,

defendant,

APPLICATION for annulment, in whole or in part, of the Commission-s decision of 20 December 2006 relating to a proceeding under Article 65 [CS] (Case No COMP/F/39.234 - Alloy surcharge - readoption) and, in the alternative, an application for reduction of the fine imposed on ThyssenKrupp Stainless by that decision,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of M. Vilaras (Rapporteur), President, M. Prek and V.M. Ciuc-, Judges,

Registrar: T. Weiler, Administrator,

having regard to the written procedure and further to the hearing on 11 December 2008,

gives the following

Judgment

Legal context

1. ECSC Treaty provisions

   1 Article 65 CS provides:

   -1. All agreements between undertakings, decisions by associations of undertakings and concerted practices tending directly or indirectly to prevent, restrict or distort normal competition within the common market shall be prohibited, 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.

2. However, the Commission shall authorise specialisation agreements or joint buying or joint selling agreements in respect of particular products, if [certain requirements are met -]

3. The Commission may, as provided in Article 47, obtain any information needed for the application of this Article, either by making a special request to the parties concerned or by means of regulations stating the kinds of agreement, decision or practice which must be communicated to it.

4. Any agreement or decision prohibited by paragraph 1 of this Article shall be automatically void and may not be relied upon before any court or tribunal in the Member States.

   The Commission shall have sole jurisdiction, subject to the right to bring actions before the Court, to rule whether any such agreement or decision is compatible with this Article.

5. On any undertaking which has entered into an agreement which is automatically void, or has enforced or attempted to enforce, by arbitration, penalty, boycott or any other means, an agreement or decision which is automatically void or an agreement for which authorisation has been refused or revoked, or has obtained an authorisation by means of information which it knew to be false or misleading, or has engaged in practices prohibited by paragraph 1 of this Article, the Commission may impose fines or periodic penalty payments not exceeding twice the turnover on the products which were the subject of the agreement, decision or practice prohibited by this Article; if, however, the purpose of the agreement, decision or practice is to restrict production, technical development or investment, this maximum may be raised to 10% of the annual turnover of the undertakings in question in the case of fines, and 20% of the daily turnover in the case of periodic penalty payments.-

   2 The ECSC Treaty expired on 23 July 2002, in accordance with Article 97 CS.

2. Communication from the Commission concerning certain aspects of the treatment of competition cases resulting from the expiry of the ECSC Treaty

   3 On 18 June 2002, the Commission adopted the Communication concerning certain aspects of the treatment of competition cases resulting from the expiry of the ECSC Treaty (OJ 2002 C 152, p. 5; -Communication of 18 June 2002-).

   4 Paragraph 2 of the Communication of 18 June 2002 states that its purposes are:

   -- - to summarise for economic operators and Member States, in so far as they are concerned by the ECSC Treaty and its related secondary legislation, the most important changes with regard to the applicable substantive and procedural law arising from the transition to the EC regime,

   - - to explain how the Commission intends to deal with specific issues raised by the transition from the ECSC regime to the EC regime in the areas of antitrust -, merger control - and State aid control.-

   5 Paragraph 31 of the Communication of 18 June 2002, which appears in the section addressing specific issues raised by the transition from the ECSC regime to the EC regime, provides as follows:

   -31. If the Commission, when applying the Community competition rules to agreements, identifies an infringement in a field covered by the ECSC Treaty, the substantive law applicable will be, irrespective of when such application takes place, the law in force at the time when the facts constituting the infringement occurred. In any event, as regards procedure, the law applicable after the expiry of the ECSC Treaty will be the EC law --

3. Regulation (EC) No 1/2003

   6 Under Article 4 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), -[f]or the purpose of applying Articles 81 [EC] and 82 [EC], the Commission shall have the powers provided for by this Regulation-.

   7 Article 7(1) of Regulation No 1/2003 states:

   -Where the Commission, acting on a complaint or on its own initiative, finds that there is an infringement of Article 81 [EC] or of Article 82 [EC], it may by decision require the undertakings and associations of undertakings concerned to bring such infringement to an end. For this purpose, it may impose on them any behavioural or structural remedies which are proportionate to the infringement committed and necessary to bring the infringement effectively to an end. Structural remedies can only be imposed either where there is no equally effective behavioural remedy or where any equally effective behavioural remedy would be more burdensome for the undertaking concerned than the structural remedy. If the Commission has a legitimate interest in doing so, it may also find that an infringement has been committed in the past.-

   8 Article 23(2) of Regulation No 1/2003 provides:

   -The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:

   (a) they infringe Article 81 [EC] or Article 82 [EC]; or

   (b) they contravene a decision ordering interim measures under Article 8; or

   (c) they fail to comply with a commitment made binding by a decision pursuant to Article 9.

   For each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year.

   Where the infringement of an association relates to the activities of its members, the fine shall not exceed 10% of the sum of the total turnover of each member active on the market affected by the infringement of the association.-

   9 Article 27 of Regulation No 1/2003 states:

   -1. Before taking decisions as provided for in Articles 7, 8, 23 and Article 24(2), the Commission shall give the undertakings or associations of undertakings which are the subject of the proceedings conducted by the Commission the opportunity of being heard on the matters to which the Commission has taken objection. The Commission shall base its decisions only on objections on which the parties concerned have been able to comment. Complainants shall be associated closely with the proceedings.

2. The rights of defence of the parties concerned shall be fully respected in the proceedings. They shall be entitled to have access to the Commission-s file, subject to the legitimate interest of undertakings in the protection of their business secrets. The right of access to the file shall not extend to confidential information and internal documents of the Commission or the competition authorities of the Member States. In particular, the right of access shall not extend to correspondence between the Commission and the competition authorities of the Member States, or between the latter, including documents drawn up pursuant to Articles 11 and 14. Nothing in this paragraph shall prevent the Commission from disclosing and using information necessary to prove an infringement.

   --

   Facts

   10 Krupp Thyssen Nirosta GmbH, a company incorporated under German law, was created on 1 January 1995 following the merger of the stainless steel divisions of Thyssen Stahl AG (-Thyssen-) and Fried. Krupp AG Hoesch-Krupp which make products resistant to acids and high temperatures. Following a number of changes of name, Krupp Thyssen Nirosta became ThyssenKrupp Stainless AG (-the applicant- or -TKS-).

   11 Stainless steel is a type of special steel whose main property is resistance to corrosion. This resistance is achieved by the use of different alloying materials (chrome, nickel, molybdenum) in the production process. Stainless steel is used in the form of flat products (plates or coils; hot or cold rolled) or long products (bars, wire rod, sections; hot rolled or finished). Most of those products were covered by the ECSC Treaty in accordance with Article 81 CS.

   12 On 16 March 1995, following reports in the specialised press and complaints from several consumers, the Commission, under Article 47 CS, asked a number of stainless steel producers for information concerning the application by those producers of a general price increase known as the -alloy surcharge-.

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

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

   15 In December 1996...