JUDGMENT OF THE COURT (Fifth Chamber)
2 October 2003 (1)
(Appeal - Agreements and concerted practices - European producers of beams)
In Case C-179/99 P,
Eurofer ASBL, established in Luxembourg, represented by N. Koch, Rechtsanwalt,
appellant,
APPEAL against the judgment of the Court of First Instance of the European Communities (Second Chamber, Extended Composition) of 11 March 1999 in Case T-136/94 Eurofer v Commission [1999] ECR II-263, seeking to have that judgment set aside,
the other party to the proceedings being:
Commission of the European Communities, represented by J. Currall and W. Wils, acting as Agents, assisted by H.-J. Freund, Rechtsanwalt, with an address for service in Luxembourg,
defendant at first instance,
THE COURT (Fifth Chamber),
composed of: M. Wathelet, President of the Chamber, D.A.O. Edward, A. La Pergola, P. Jann (Rapporteur) and S. von Bahr, Judges,
Advocate General: C. Stix-Hackl,
Registrar: M.-F. Contet, Principal Administrator,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 31 January 2002,
after hearing the Opinion of the Advocate General at the sitting on 26 September 2002,
gives the following
Facts and the contested decision
Contrary to what some parties have argued in this case, associations of undertakings can infringe the competition rules of the ECSC Treaty (see Article 48, first paragraph). Article 65(1) contains a prohibition applicable to decisions of associations of undertakings. While Article 65(5) only provides for fines to be imposed upon undertakings, an infringement committed by an association will expose the undertakings which belong to it to the risk of a fine. In the absence of special circumstances undertakings must take responsibility for the actions of an association under their control, in proportion to their influence over the association.
In this case, Eurofer facilitated the implementation of infringements of Article 65 of the ECSC Treaty by its members, by organising an exchange of some of the necessary confidential information. However, since those members are already being fined in respect of the infringements, including exchanges of confidential information in connection with price fixing and market sharing, the Commission does not consider it necessary to impose any additional fines on them for the behaviour of their association.
Article 2
Eurofer has infringed Article 65 of the ECSC Treaty by organising an exchange of confidential information in connection with the infringements committed by its members and listed in Article 1.
Article 3
The undertakings and associations of undertakings mentioned in Articles 1 and 2 shall henceforth bring to an end the infringements referred to in Articles 1 and 2 to the extent that they have not already done so. To this end, the undertakings and associations of undertakings shall refrain from repeating or continuing any of the acts or behaviour specified in Article 1 or as the case may be Article 2 and shall refrain from adopting any measures having equivalent effect.
The proceedings before the Court of First Instance and the judgment under appeal
Forms of order sought by the parties
- set aside the judgment under appeal;
- having regard to the form of order sought at first instance, annul Article 2 of the contested decision and the part of Article 3 of that decision which concerns the appellant;
- order the Commission to pay the costs.
- dismiss the appeal;
- order the appellant to pay the costs.
The grounds of appeal
1. infringement of Article 65(1) of the ECSC Treaty by reason of misinterpretation of the concept of decisions by associations of undertakings used in that article;
2. infringement of the first paragraph of Article 15 of the ECSC Treaty by reason of erroneous and contradictory grounds which exceed the limits of the Court of First Instance's jurisdiction ratione materiae, as regards the finding in Article 2 of the contested decision that the appellant organised an exchange of confidential information in connection with the infringements committed by its members;
3. infringement of Article 65(1) of the ECSC Treaty and failure by the Court of First Instance to respect the limits of its jurisdiction ratione materiae by reason of its misinterpretation of the requirement arising from the use in that provision of the words tending ... to when applying that test to the allegedly anti-competitive effects of the exchange of information organised by the appellant;
4. infringement of the first paragraph of Article 15 and Article 65(1) of the ECSC Treaty by reason of misinterpretation of the requirement arising from the use in Article 65(1) of the words restrict or distort normal competition and of contradictory reasoning in the application of that test to the exchange of information organised by the appellant.
The appeal
The first ground of appeal
Findings of the Court
The second and fourth grounds of appeal
The fact that the system was set up in 1986 at the latest, in the context of the quota system then being administered by the applicant, indicates that the initial purpose of the system was to monitor compliance with the quotas allocated to each of the participant undertakings, in a context in which the Commission was pursuing a policy of stabilising traditional flows ... . The fact that the exchange in question continued after the quota system ended on 30 June 1988 (see documents nos 3482 and 3483) made it possible for the undertakings to monitor the extent to which each of them was continuing to comply with the traditional markets which had served as the basis for the quota system. By its very nature, such an exchange of information tended to maintain the compartmentalisation of the markets with reference to traditional flows.
Findings of the Court
The third ground of appeal
Findings of the Court
Costs
63. Under Article 69(2) of the Rules of Procedure, which is applicable to the appeal procedure by virtue of Article 118 of those Rules, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs to be awarded against the appellant and since that party has been unsuccessful in all of its grounds of appeal, it must be ordered to pay the costs.
On those grounds,
THE COURT (Fifth Chamber)
hereby:
1. Dismisses the appeal;
2. Orders Eurofer ASBL to pay the costs.
Wathelet
Jann von Bahr
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Delivered in open court in Luxembourg on 2 October 2003.
R. Grass M. Wathelet
Registrar President of the Fifth Chamber
1: Language of the case: German.