1.

Annul the fine imposed amounting to DM 133736, or, in the alternative, reduce the amount thereof;

2.

Declare Articles 1 and 2 of the decision void.

I.

Infringement of essential procedural requirements and, in particular, insufficient statement of the reasons on which the decision is based;

II.

Infringement of the ECSC Treaty and of the rules of law relating to its application;

III.

Misuse of powers.

(1)

the documents submitted by the applicant in reply to a question put to it by the Court on 5 January 1984;

(2)

the additional documents submitted by the applicant at the sitting with the Commission's consent; and

(3)

the defence — which the applicant was naturally able to put forward only at the sitting — in response to the further details of the statement of reasons on which the Commission's decision was based which were provided by the Commission in its rejoinder.

2.1.

In its first submission the applicant contends, as stated earlier, that the statement of reasons on which the contested decision was based is insufficient. Secondly, however, it also contends that the Commission infringed its right to a fair hearing. The first contention in particular displays a formal in addition to a substantive aspect. The substantive aspect, however, partly coincides with the explanation regarding the second submission. In order to avoid repetition, therefore, I propose to consider the substantive aspect of this submission in connection with the second submission.

2.2.

As far as the first contention is concerned, I should like to state at once that the statement of reasons on which the decision was based is indeed rather concise. That is particularly true as regards certain parts of the arguments relied upon by the applicant during the administrative procedure in relation to the infringements with which it was charged. Nevertheless the infringements established are in my view set out in the decision with sufficient clarity to enable the applicant to defend itself in the proceedings before the. Court against the infringements with which it is charged. That is certainly true if the decision is read in conjunction with the letter which the Commission sent to the applicant on 16 February 1982 during the administrative procedure (see Annex 1 to the Commission's defence). Moreover, the fact that the arguments put forward by the applicant before the Court were in substance already set out in its reply to the Commission of 20 September 1982 (see Annex 2 to the Commission's defence) confirms that the decision did not in that respect infringe the rights of the defence as regards the applicant. In that connection it must, moreover, be borne in mind that — in contrast to the Bertoli case — the nature and the legal classification of the alleged infringements in this case are quite straightforward. Although this is not expressly stated in the decision, the applicant seems to have been left in no doubt that what was alleged against it was that by undercutting its own list prices in the instances specifically listed, it acted in a manner contrary to Article 8 of Decision No 1836/81, that is to say contrary to the prohibition of applying dissimilar conditions to comparable transactions. In formal terms, therefore, the Commission did not, in my view, fail to discharge the obligation to provide a statement of reasons in this case. As I mentioned earlier, I shall return to the substance of the applicant's contentions when I consider its second submission.

2.3.

The second infringement of essential procedural requirements which the applicant alleges against the Commission is the failure to discharge the obligation laid down in Article 36 of the ECSC Treaty namely that, “before imposing a pecuniary sanction or ordering a periodic penalty payment as provided for in this Treaty” it must “give the party concerned the opportunity to submit its comments.” May I state at once, as regards that contention, that Article 36 does not provide that, after submitting their written comments concerning the infringements with which they are charged, the parties must also be given an opportunity to express their views orally. Still less does Article 36 require the Commission, in the administrative procedure preceding the adoption of its decision, to submit its counter-arguments in relation to the defence pleaded by the parties concerned. The applicant finally — and according to the file expressly — waived the opportunity which the Commission in fact gave it to enlarge on its defence orally (see Annex 3 to the Commission's defence). This contention of the applicant must therefore be rejected.

3.1.

In its second submission the applicant contends that the Commission infringed Articles 15, 47 and 36 of the ECSC Treaty and Articles 11, 14 and 15 of Decision No 1836/81.

I have already considered in connection with the first submission the formal aspects of the alleged infringements of Articles 15 and 36 of the ECSC Treaty. The applicant takes the view that die Commission infringed Article 47 of the ECSC Treaty and Article 14 of Decision No 1836/81 inasmuch as, in the course of its investigation, it examined those factors which were detrimetal to the applicant but not those which militated in its favour. It is apparent, however, from a comparison of the concise treatment of the applicant's defence in the decision imposing a fine and the grounds relied upon by the applicant in the proceedings before the Court, that this contention is devoid of any factual basis as regards the issues which may be considered crucial. The applicant also contends that the Commission wrongfully infringed Article 11 of Decision No 1836/81. I have already considered in connection with the first submission the contention that the Commission was in breach of Article 15 of that decision by failing to identify expressly the articles which the applicant is alleged to have infringed. I now propose to consider in detail the substantive aspects of the first and second submissions. The substantive criticisms which the applicant makes against the Commission by implication in its observations on the first and second submissions in its application and more expressly as well more extensively in its reply and during the oral procedure, are concerned with three issues which I now propose to discuss in order of importance.

3.2.

The framework contracts. As regards all four groups of infringements, the applicant relies on the fact that the transactions at issue were carried out in performance of framework contracts which had already been entered into with the four parties concerned prior to 15 October 1981. As far as Markmann and Claas are concerned, it appears from the documents submitted in reply to questions put by the Court that two contracts were concluded on 7 September 1981. A contract was concluded with Schlafhorst on 24 June 1981 and was renewed on 9 September 1981. The framework contract with Bergbau was concluded earlier, on 3 April 1981.

Although the Commission continues to disagree with the applicant as regards the legal nature and scope of those contracts, it has not contested their existence. In my introductory remarks I have already explained why the designation and classification of the contracts in question under civil law are in my view irrelevant from the point of view of the Court. At the same time I also explained why, in my view, an emergency measure governed by public law in the form of a measure on prices such as that at issue here, which applies to transactions carried out in performance of contracts of that kind takes precedence over any contractual obligations arising under such contracts. An emergency measure under public law may, in relation to such transactions, take precedence over those obligations, even if the contested framework contracts came into existence before 4 July 1981. Still less is it possible to regard the decision as lawfully having retroactive effect only in exceptional cases and for valid reasons in the public interest, since Article 8 of the decision, which the applicant is alleged to have infringed, applies to all transactions concluded after 4 July 1981 and thus unquestionably to those concluded after 15 October 1981 for which the applicant is held accountable in this case. Article 8 does not provide exemption for any transactions carried out in performance of framework contracts concluded earlier, nor can any other intention be inferred from the objectives of the decision referred to earlier. On the contrary, those objectives confirm that such an interpretation of Article 8 is correct. As regards the retroactive effect of the decision, of which the applicant complains, reference may be made, in support of the view expressed here and in my introductory remarks, to the situation which arose in the following cases and which in this respect is comparable: Case 1/73 Westzucker [1973] ECR 723, paragraph 5 of the decision, and Case 143/73 Sopad [1973] ECR 1433, paragraph 8 of the decision. The applicant's views in this regard must therefore be rejected. Since no other submissions have been put forward concerning the transactions concluded with Schlafhorst and Claas, the charges concering them must be regarded as proven.

3.3.

The alleged dissimilarity of the transactions concluded with Markmann. As regards the contested transactions concerning Category I (a) material effected with Markmann, the applicant has however already contended in the administrative procedure that they were not comparable to its other transactions, since Markmann, in contrast to its other customers, purchased mainly Category II (a) material from the applicant. That argument must in my opinion be rejected since the obligation to publish prices and the other provisions of Decision No 1836/81 are concerned exclusively with transactions involving Category I (a) material. In any comparison of transactions, therefore, no account may be taken of undertakings given at the same time to deliver Category II (a) material. Furthermore, the applicant would have been permitted under the decision, in the case of package deals of that kind, to grant rebates on sales of Category II (a) material to Markmann. In that respect there was no reason, even from a commercial point of view, for the price of the Category I (a) material delivered to Markmann to be at variance with the applicant's list price.

3.4.

The alleged special nature of the transactions with Bergbau. As regards the transactions with Bergbau, the applicant has moreover contended that they were concerned exclusively with Category II (a) material, or at least with steel imported from the German Democratic Republic in respect of which the Commission grants a price rebate of 6% on importation. In my view, this contention gives rise to serious doubts, which the Commission has not been entirel able to dispel, as to whether the charges concerning the contested practices are justified. That view is supported in the first place by the fact that the material in question was to be used in mining, for which purpose its strength and the possibility of welding it but not its precise length and breadth or its freedom from rust are important. Furthermore, the plausibility of that view is confirmed by the fact — which has not been denied by the Commission — that the applicant is one of the largest customers in the Federal Republic of Germany for steel from the German Democratic Republic. The Federal Republic of Germany is, according to the file, required to purchase a fixed quantity of steel from the German Democratic Republic as partial compensation for the larger quantity of steel which the German Democratic Republic acquires from the Federal Republic. Whether the fact that the steel in question originates in the German Democratic Republic is a sufficient ground for clasifying it as Categoiy II (a) material is a question which may in my opinion be disregarded. In my view this question remains open for a number of different reasons which have been referred to by the parties in the oral procedure. However, since that steel, as is recognized by the Commission, may be purchased at a lower price than other steel, transactions involving such steel, concluded on the basis of Article 9 (1) (b) of Decision No 1836/81 can, in my view, in no way be regarded as comparable transactions within the meaning of Article 8 of the decision. Moreover, it seems to me that, in view of the problem of classifying such steel, it has not been established that in the present case Article 7 of the decision has been infringed. It strikes me as unreasonable to regard steel from the German Democratic Replublic as Categoiy II (a) material merely because of its origin and of its lower purchase price. Accordingly, I do not consider either Article 8 or Article 7 of the decision to have been infringed by the transactions with Bergbau. This will have to be taken into account when the amount of the fine is determined.

5.1.

I should like to conclude my Opinion with a few general remarks.

In the light of the wording and the scope of Decision No 1836/81 and of certain general principles — which have also been recognized by the Court in its case-law — concerning the relationship between administrative law relating to the economy and contracts governed by private law, I have subscribed to the view expressed by the Commission that Decision No 1836/81 and the obligations arising thereunder for the applicant must take precedence over the framework contracts entered into or renewed by the applicant after the entry into force of the decison as regards the three groups of transactions which I consider relevant. Admittedly, from the point of view of civil law, that outcome is not entirely satisfactory, since the applicant had unilaterally to amend by means of its price lists the conditions of sale which it had stipulated by contract in September in relation to the transactions effected after the publications of its price list (unless, contrary to the express purpose of the decision, it fixed its published prices below the level of the market prices applicable at the time). The considerations, which are also in my view compelling ones, militating in favour of the argument that the decision takes precedence over the framework contracts referred to earlier, must however be considered decisive in this regard. Moreover, the applicant could probably have prevented such an outcome had it drafted the more favourable terms contained in the framework contracts in the form of fidelity rebates (a possibility suggested by the Commission in the case of Markmann) or in the form of periodic quantity discounts. It would then have been necessary for the applicant, according to Article 3 (f) of Decision No 1836/81, to refer to the possibility and the size of such rebates and discounts also in its price list.

My second general remark is that this case is unique, inasmuch as the interpretation of the decision to be given by the Court will set an important precedent not so much for any further cases which come before the Court as for the national administrative and legal authorities of the Member States. Since 1 January 1983 the Member States have been entrusted with responsibility for the application of the essential rules of the system by means of national provisions for the implementation of Recommendation No 1835/81/ECSC (Official Journal L 184, p. 9). To a lesser extent, the effect of such a precedent extends to the conclusions to be drawn by the Court with regard to the criterion for the imposition of fines. It has become apparent from the file that the Council felt unable to agree with the Commission's original proposal to establish also the maximum amount of the fine in the recommendation, by analogy with Decision No 1836/81. That is understandable since the penalty, at least in a number of Member States, will have to be applied either in the context of criminal law or on the basis of other existing legislative provisions imposing penalties for comparable infringements of national provisions of administrative law affecting the economy. Moreover, in the light inter alia of the case-law of the Court concerning similar problems in connection with the implementation of the Common Agricultural Policy, this will no doubt inevitably lead to differences in national policy on penalties. None the less, the views of the Court regarding the importance which is to be attributed to the gravity of the infringements in question may also have the effect of harmonizing to a certain extent the policy on penalties pursued by the Member States. In that connection I would advise the Court expressly to state in its judgment that, in the case of infringements committed after 9 December 1982, it too regards the criteria for the imposition of fines applied by the Commission in the present case as appropriate in so far as there are no particular circumstances justifying a reduction in a specific case.

5.2.

In conclusion, I consider, in the light of the views which I have expressed, that: