Dalmine SpA v Commission of the European Communities.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Ilešič
• ECLI: ECLI:EU:C:2006:547
• Date: 12 September 2006
• Docket Number: C-407/04
• Procedure Type: Recurso de casación - infundado

OPINION OF ADVOCATE GENERAL

GEELHOED

delivered on 12 September 2006 ¹(1)

Case C-407/04 P

Dalmine SpA

v

Commission of the European Communities

(Appeal against the judgment of the Court of First Instance (Second Chamber) of 8 July 2004 in Case T‑50/00 Dalmine v Commission annulling in part Commission Decision 2003/382/EC of 8 December 1999 relating to a proceeding under Article 81 of the EC Treaty (Case IV/E‑1/35.860‑B seamless steel tubes) (notified under document number C(1999) 4154) and fixing the amount of the fines imposed on the applicants)

Table of contents

I – Introduction

II – The decision

III – The procedure before the Court of First Instance and the judgment under appeal

IV – The procedure before the Court of Justice

V – The appellant’s pleas in law and arguments of the parties

A – The first plea: illegality of the questions put by the Commission during the investigation

1. Context and reasoning of the Court of First Instance

2. The appellant’s complaints

3. The Commission’s response

4. Assessment

B – The second plea: infringement and misapplication of Community law and infringement of the rights of the defence in that the sharing key document was declared admissible and used as evidence

1. Context and reasoning of the Court of First Instance

2. The appellant’s complaints

3. The Commission’s arguments

4. Assessment

C – The third plea: infringement of Article 81 EC by the inclusion in the decision of arguments unrelated to the objections notified to the appellant

1. Context and reasoning of the Court of First Instance

2. The appellant’s complaints

3. The Commission’s arguments

4. Assessment

D – The fourth plea: error of law, distortion of the facts and failure to state reasons in respect of the infringement referred to in Article 1 of the decision

The fifth plea: errors of law, distortion of the evidence and failure to state grounds as regards the effects of the infringement on trade between Member States

1. Context and reasoning of the Court of First Instance

2. The appellant’s complaints

3. The Commission’s arguments

4. Assessment

E – The sixth, seventh and eighth pleas

– Misuse of powers, error of law and incorrect assessment of the facts with regard to the infringement referred to in Article 2 of the decision

– Misuse of powers, error of law and incorrect assessment of the effects of the infringement referred to in Article 2 of the decision

– Error of law and incorrect assessment of the facts with regard to the provisions of the supply contract between Dalmine and British Steel

1. Context and reasoning of the Court of First Instance

2. The appellant’s complaints

3. The Commission’s arguments

4. Assessment

F – The ninth and tenth pleas

– Infringement of Article 81 EC and failure to state reasons in the assessment of the Commission’s compliance with Article 15 of Regulation No 17 and the Guidelines on the method of setting fines in regard to the assessment of the gravity of the infringement attributable to Dalmine

– Infringement of Article 81 EC and failure to state reasons in the assessment of the Commission’s compliance with Article 15 of Regulation No 17 and the Guidelines on the method of setting fines in regard to the assessment of the duration of the infringement and of the attenuating circumstances

1. The appellant’s complaints

2. The Commission’s arguments

3. Assessment

VI – Costs

VII – Conclusion

I – Introduction

1. This case concerns the appeal brought by Dalmine SpA (‘Dalmine’) against the judgment of the Court of First Instance of 8 July 2004 in Case T‑50/00 Dalmine v Commission. (2)

2. In the judgment under appeal, the Court of First Instance reduced the fine which had been imposed on the appellant by Commission Decision 2003/382/EC of 8 December 1999 relating to a proceeding under Article 81 of the EC Treaty (Case IV/E-1/35.860-B seamless steel tubes) (3) (‘the decision’) and dismissed the remainder of the application for annulment of that decision.

II – The decision

3. For the facts on which the decision is based, I refer to points 3 to 12 of my Opinion delivered today in Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel v Commission.

4. In so far as is relevant to the present appeal, the operative part of the decision reads as follows:

‘Article 1

1. … Dalmine SpA … [has] infringed the provisions of Article 81(1) of the EC Treaty by participating, in the manner and to the extent set out in the grounds to this decision, in an agreement providing, inter alia, for the observance of their respective domestic markets for seamless standard threaded OCTG pipes and tubes and project line pipe.

2. The infringement lasted from 1990 to 1995 in the case of … Dalmine SpA …

Article 2

1. … Dalmine SpA infringed Article 81(1) of the EC Treaty by concluding, in the context of the infringement mentioned in Article 1, contracts which resulted in a sharing of the supplies of plain end OCTG pipes and tubes to British Steel Limited (to Vallourec SA from 1994).

2. … In the case of Dalmine SpA, the infringement lasted from 4 December 1991 to 30 March 1999.

…

Article 4

The following fines are imposed on the firms mentioned in Article 1 on account of the infringement established therein:

4. Dalmine SpA EUR 10 800 000

…’

III – The procedure before the Court of First Instance and the judgment under appeal

5. By seven applications lodged at the Registry of the Court of First Instance between 28 February and 3 April 2000, seven of the eight undertakings fined, including Dalmine, brought actions against the decision.

6. Dalmine claimed that the Court of First Instance should annul the decision in whole or in part or, in the alternative, cancel the fine imposed on it or reduce its amount and order the Commission to pay the costs.

7. In the judgment under appeal, the Court of First Instance:

– annulled Article 1(2) of the decision in so far as it found that the infringement imputed to Dalmine existed before 1 January 1991;

– set the amount of the fine imposed on Dalmine at EUR 10 080 000;

– dismissed the remainder of the application;

– ordered the parties to bear their own costs.

IV – The procedure before the Court of Justice

8. On appeal Dalmine claims that the Court of Justice should:

– set aside the judgment under appeal in whole or in part;

– annul the decision;

– in the alternative, annul or reduce the fine set in Article 4 of the decision;

– furthermore, in the alternative, refer the case back to the Court of First Instance for a fresh assessment having regard to the judgment of the Court of Justice;

– order the Commission to pay the costs incurred before the Court of First Instance and the Court of Justice.

9. The Commission contends that the Court of Justice should dismiss the appeal in its entirety as inadmissible in part and, in any event, as wholly unfounded, and also to order the appellant to pay the costs.

V – The appellant’s pleas in law and arguments of the parties

10. Dalmine puts forward ten grounds of appeal against the judgment under appeal, which can be subdivided into four groups:

– two pleas concern procedural defects;

– three pleas concern the finding of the infringement referred to in Article 1 of the decision;

– three pleas concern the finding of the infringement referred to in Article 2 of the decision;

– lastly, two pleas concern the amount of the fine.

11. The first three pleas are more or less self‑contained. The fourth and fifth pleas, the sixth, seventh and eighth pleas, and the ninth and tenth pleas are more closely connected with each other. Grouped together in that way, I shall discuss the individual pleas below.

A – The first plea: illegality of the questions put by the Commission during the investigation

1. Context and reasoning of the Court of First Instance

12. On 13 February and 22 April 1997, the Commission requested from the appellant information relating inter alia to Dalmine’s alleged participation in unlawful practices, in particular, agreements to observe domestic markets and prices. Dalmine did not reply fully to that request.

13. On 12 June 1997, the Commission again requested Dalmine to provide the information sought. Since the Commission took the view that the answers given by Dalmine were still incomplete, on 6 October 1997, it adopted a decision (4) requiring the appellant to supply the information requested within 30 days or face a periodic penalty payment. Dalmine brought an action against that decision before the Court of First Instance. That action was declared inadmissible. (5)

14. At first instance, Dalmine again contested the lawfulness of the aforementioned decision, claiming that it compelled it to incriminate itself, and that it therefore suffered damage.

15. In its assessment of the relevant plea, the Court of First Instance first confirmed, with reference to the judgments in Orkem v Commission (6) and Mannesmannröhren-Werke v Commission, (7) that undertakings in receipt of a request for information pursuant to Article 11(5) of Regulation No 17 (8) have a right to silence only to the extent that they would otherwise be compelled to provide answers which might involve an admission on their part of the existence of an infringement, or face a periodic penalty payment (paragraph 45 of the judgment under appeal).

16. The Court of First Instance then recalled that it is settled case‑law (9) that undertakings are under no obligation to provide answers pursuant to that rule following a simple request for information under Article 11(1) of Regulation No 17. They cannot therefore claim that their right not to incriminate themselves has been infringed when they voluntarily replied to such a request (paragraph 46 of the judgment under appeal).

17. Without examining whether the plea in question could in fact be considered admissible, the Court of First Instance merely noted that the contested...