Thyssen Stahl AG contra Comisión de las Comunidades Europeas.

• Jurisdiction: European Union
• Court: General Court (European Union)
• Date: 11 March 1999

Avis juridique important

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61994A0141

Judgment of the Court of First Instance (Second Chamber, extended composition) of 11 March 1999. - Thyssen Stahl AG v Commission of the European Communities. - ECSC Treaty - Competition - Agreements between undertakings, decisions by associations of undertakings and concerted practices - Price-fixing - Market sharing - Systems for the exchange of information. - Case T-141/94.

European Court reports 1999 Page II-00347

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

1 ECSC - Agreements, decisions and concerted practices - Administrative proceedings - Principle of ex proprio motu investigation - Commission under an obligation to investigate - Limits

(ECSC Treaty, Art. 65)

2 ECSC - Agreements, decisions and concerted practices - Administrative proceedings - Observance of the rights of the defence - Whether the Commission is obliged to reopen the oral procedure following an internal investigation after the hearing - No such obligation

(ECSC Treaty, Arts 36, first para., and 65)

3 ECSC - Agreements, decisions and concerted practices - Administrative proceedings - Similarities between the statement of objections and the decision finding an infringement - Observance of the rights of the defence

(ECSC Treaty, Art. 15)

4 Acts of the institutions - Drafting procedure - Commission decision - Obligation on the Commissioners - Accordance between the decision adopted and the decision notified

5 Acts of the institutions - Rules of Procedure of the Commission - Authentication of acts adopted - Documents `annexed' to the minutes - Meaning

(1993 Rules of Procedure of the Commission, Art. 16, first para.)

6 ECSC - Agreements, decisions and concerted practices - Prohibited - Infringement - Proof thereof

(ECSC Treaty, Art. 65)

7 ECSC - Agreements, decisions and concerted practices - Agreements between undertakings - Concept - Common intentions as to future market conduct

(ECSC Treaty, Art. 65(1); EC Treaty, Art. 85(1))

8 ECSC - Agreements, decisions and concerted practices - Concerted practice - Concept - Coordination and cooperation incompatible with the obligation for each undertaking to determine its market conduct independently - System for the exchange of information

(ECSC Treaty, Arts 4(d) and 65(1); EC Treaty, Art. 85(1))

9 ECSC - Agreements, decisions and concerted practices - Prejudicial to competition - Anti-competitive object - Sufficient to establish the existence thereof

(ECSC Treaty, Art. 65(1); EC Treaty, Art. 85(1))

10 ECSC - Article 65 of the Treaty - Interpretation - Protection of residual competition

(ECSC Treaty, Art. 65)

11 ECSC - Prices - Price lists - Compulsory publication - Purpose - Compatible with the prohibition of agreements, decisions and concerted practices

(ECSC Treaty, Arts 60 and 65(1))

12 ECSC - Agreements, decisions and concerted practices - Prohibited - System for the exchange of information - Appreciable influence on the conduct of participant undertakings - Anti-competitive

(ECSC Treaty, Art. 65(1))

13 ECSC - Agreements, decisions and concerted practices - Price-fixing agreements - Encouragement from the Commission - Encouragements misconstrued - Consequences

(ECSC Treaty, Art. 65(1))

14 ECSC - Agreements, decisions and concerted practices - Prohibited - Justification put forward - Toleration or laxity on the part of the Commission - Not permissible

(ECSC Treaty, Art. 65(1) and (4))

15 Actions for annulment - Pleas in law - Misuse of powers - Meaning - Decision imposing fines for infringement of the competition rules - Vitiated by misuse of powers only in exceptional circumstances

(ECSC Treaty, Arts, 3, 4, 33 and 65(1) and (5))

16 Acts of the institutions - Statement of reasons - Obligation - Scope - Decision imposing fines for infringement of the competition rules - Desirable that the method of calculating the fine be disclosed

(ECSC Treaty, Arts 15 and 65(1))

17 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Aggravating circumstances - Recidivism (where an undertaking has already been penalised for similar infringements) - Concept

(ECSC Treaty, Art. 65(5))

18 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Financial difficulties of the undertaking concerned - May be taken into consideration - Whether obligatory - No such obligation

(ECSC Treaty, Art. 65(5))

19 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Whether the anti-competitive effects of an infringement are to be taken into account - Limits

(ECSC Treaty, Art. 65(5))

20 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Criteria - Possibility of raising the level of fines

(ECSC Treaty, Art. 65(5))

21 ECSC - Agreements, decisions and concerted practices - Fines - Amount - Determination thereof - Cases in which the fine is fixed by the Community judicature - Unlimited jurisdiction

(ECSC Treaty, Art. 36, second para.)

22 ECSC - Agreements, decisions and concerted practices - Fines - Interest payable in cases of postponed payment - Effect of actions pending - No effect

(ECSC Treaty, Art. 39)

Summary

1 Having regard to the principle of ex proprio motu investigation, when the Commission finds itself facing allegations of importance for the defence of undertakings concerned by a proceeding pursuant to Article 65 of the ECSC Treaty and when, in the case of allegations that a Commission department encouraged those undertakings to implement the practices of which they are accused, the Commission is therefore, with regard to the conduct of its own departments, in a privileged position, compared with those undertakings, to establish whether those allegations are true or false, it follows from the principles of sound administration and equality of arms that it is under an obligation to examine seriously that aspect of the case-file in order to determine whether or not those allegations are well founded and, if so, to what extent. However, it is for the Commission, not the undertakings, to decide how to conduct such an examination.

2 In proceedings pursuant to Article 65 of the ECSC Treaty, the guarantee of the rights of the defence afforded by the first paragraph of Article 36 of the Treaty does not require the Commission to reply to all the arguments of the party concerned, or to carry out further investigations or to hear witnesses put forward by the party concerned, where it considers that the preliminary investigation of the case has been sufficient.

Where a hearing has provided the undertakings concerned with an opportunity to set out their position in detail, the mere fact that they produced certain documents after the hearing and that the Commission then decided to open an internal investigation is not, in itself, such as to oblige the Commission to reopen the oral procedure after that investigation has been concluded.

In such cases, the rights of defence of the undertakings concerned are sufficiently respected where the Commission informs them of the results of the investigation, indicating that the documents which they have provided do not justify a second hearing; and their procedural rights are sufficiently guaranteed by their right to bring an action before the Court of First Instance.

3 The reproduction, in a decision finding that the competition rules have been infringed, of the text of certain passages in the statement of objections indicates in itself only that the Commission has maintained its point of view. In the absence of any other relevant evidence, such similarity between texts does not establish that the Commission failed, when assessing the case, to give proper consideration to the arguments which the party concerned set out in its defence.

4 The operative part and reasoning of a decision notified to the person or persons to whom that decision is addressed must correspond to those of the decision adopted by the college of Commissioners, exception being made for any corrections merely of spelling or grammar which may still be made to the text of an act after its formal adoption by that college.

The fact that a decision has been adopted in the form of two documents, the second of which contains a number of amendments, some handwritten, to the first, is irrelevant where it has not been possible to identify any substantive difference between the version of the decision adopted by the college and the version notified to addressees. Likewise, the fact that in some language versions the two documents have inconsistent page numbering or different character fonts is irrelevant where the intellectual component and the formal component of those documents, read in conjunction, corresponds to the version of the decision notified to addressees.

5 The purpose of the first paragraph of Article 16 of the Commission's 1993 Rules of Procedure, under which `[i]nstruments adopted by the Commission in the course of a meeting or by written procedure 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 taken of their adoption', is to ensure that the Commission has duly adopted the instrument in the form notified to the party to whom it is addressed.

Since the first paragraph of Article 16 of the 1993 Rules of Procedure does not define how instruments adopted in the course of a meeting are to be `annexed' to the minutes - in contrast to Article 16 of the Commission's Rules of Procedure, as subsequently amended, which provides that the instruments in question are to be attached to the minutes `in such a way that they cannot be separated' - it can be assumed that, when the minutes are received by the Court of First Instance, accompanied by the documents constituting the adopted act, in the same...