Judgments nº T-80/03 of Court of First Instance of the European Communities, October 25, 2007

• Resolution Date: October 25, 2007
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-80/03

In 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, established in Brescia (Italy), represented by G. Belotti and N. Pisani, lawyers,

applicant in Case T-27/03,

Leali SpA, established in Odolo (Italy), represented by G. Vezzoli and G. Belotti, lawyers,

applicant in Case T-46/03,

Acciaierie e Ferriere Leali Luigi SpA, established in Brescia, represented by G. Vezzoli, G. Belotti, E. Piromalli and C. Carmignani, lawyers,

applicant in Case T-58/03,

Industrie Riunite Odolesi SpA (IRO), established in Odolo, represented by A. Giardina, lawyer,

applicant in Case T-79/03,

Lucchini SpA, established in Milan (Italy), represented initially by † A. Santa Maria and C. Biscaretti di Ruffia, and subsequently by M. Delfino, M. van der Woude, S. Fontanelli and P. Sorvillo, lawyers,

applicant in Case T-80/03,

Ferriera Valsabbia SpA, established in Odolo,

Valsabbia Investimenti SpA, established in Odolo,

represented by D. Fosselard and P. Fattori, lawyers,

applicants in Case T-97/03,

Alfa Acciai SpA, established in Brescia, represented by † D. Fosselard, P. Fattori and G. d-Andria, lawyers,

applicant in Case T-98/03,

supported by

Italian Republic, represented by I. Braguglia and M. Fiorilli, acting as Agents,

intervener,

v

Commission of the European Communities, represented by L. Pignataro-Nolin and A. Whelan, acting as Agents, assisted, in Cases T-27/03 and T-58/03, by M. Moretto and, in Cases T-79/03, T-97/03 and T-98/03, by P. Manzini, lawyers,

defendant,

APPLICATIONS for a declaration of the non-existence and for annulment in whole or in part of Commission Decision C†(2002)†5087 final of 17 December 2002, relating to a proceeding under Article 65 of the ECSC Treaty (COMP/37.956 - Reinforcing bars),

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

composed of M. Vilaras, President, M. E. Martins Ribeiro, F. Dehousse, D. -v·by and K. J¸rim‰e, Judges,

Registrar: J. Palacio Gonz·lez, Principal Administrator,

having regard to the written procedure and further to the hearing on 19 September 2006,

gives the following

Judgment

†Legal framework

†ECSC Treaty provisions

1 ††††††††Article 36 CS provides:

-Before imposing a pecuniary sanction or ordering a periodic penalty payment as provided for in this treaty, the Commission must give the party concerned the opportunity to submit its comments.

--

2 ††††††††Article 47 CS provides:

-The Commission may obtain the information it requires to carry out its tasks. It may have any necessary checks made.

--

3 ††††††††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 conditions are fulfilled] -

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 ... an agreement or decision which is automatically void ... 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.-

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

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

   5 ††††††††On 18 June 2002, the Commission adopted a 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-).

   6 ††††††††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.-

   7 ††††††††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:

   -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 --

   †Administrative procedure

   8 ††††††††From October to December 2000, the Commission carried out a number of checks pursuant to Article 47 CS at the offices of certain Italian undertakings engaged in the production of reinforcing bars and at the offices of an association of certain Italian steel undertakings. It also requested them to supply information pursuant to Article 47 CS.

   9 ††††††††On 26 March 2002, the Commission commenced the administrative procedure and adopted its objections under Article 36 CS. The applicants in the present proceedings feature among the addressees of the statement of objections.

   10 ††††††The applicants have lodged written comments on the statement of objections. All the applicants, with the exception of the applicant in Case T-80/03, requested the right to express their opinion orally. To this end, the Hearing Officer arranged a hearing on 13 June 2002.

   11 ††††††On 12 August 2002, the Commission adopted a supplementary statement of objections which was addressed to the same addressees as the first statement. In that supplementary statement of objections, based on Article 19(1) of Council Regulation No 17: First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962, p. 87), the Commission explained its position concerning the further proceedings following expiry of the ECSC Treaty.

   12 ††††††The applicants submitted written comments on the supplementary statement of objections. A second hearing, in the presence of representatives of the Member States, took place on 30 September 2002.

   †Contested decision

   13 ††††††On 17 December 2002, the Commission adopted Decision C(2002) 5087 final relating to a proceeding under Article 65 CS (Case COMP/37.956 - Reinforcing bars; -the contested decision-).

   14 ††††††The preamble to the contested decision reads as follows:

   -Having regard to the Treaty establishing the European Coal and Steel Community, and in particular Article 65 thereof,

   Having regard to the information obtained by the Commission and the checks made by Commission officials under Article 47 of the Treaty,

   Having regard to the written and oral comments submitted in the name and on behalf of the parties concerned under Article 36 of the ECSC Treaty,

   After consulting the Advisory Committee on Restrictive Practices and Dominant Positions,

   --

   15 ††††††With regard to the legal consequences of the expiry of the ECSC Treaty, the Commission referred first of all, in recital 331 of the contested decision, to paragraph 31 of the Communication of 18 June 2002.

   16 ††††††The Commission then examined in recitals 333 to 344 of the contested decision whether the application of Article 65 CS to the conduct complained of could not be contested on the basis of the lex mitior principle (principle of the application of the more lenient penalty).

   17 ††††††It pointed out in this regard in paragraph 335 of the contested decision that -the two provisions of the ECSC Treaty which might in the abstract be considered less favourable [were, first,] Article 65(1), because for the infringement it contemplates to take place it does not require, as Article 81(1) of the EC Treaty does, that the restrictive practice be such as to affect trade between Member States; - and [, second,] Article 65(5) CS, because the fines it [allowed] may amount to up to twice the turnover on the products which were the subject of the restrictive practice: Article 15 of Council Regulation No 17 does not allow such fines --

   18 ††††††Having concluded in recitals 337 to 341 of the contested decision, that the agreement referred to therein was capable of affecting trade...