61989A0147

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1. Competition ° Administrative procedure ° Rules on the use of languages ° Statement of objections and final decision ° Drawn up in the language of the case ° Annexes to the statement of objections ° To be made available in their original language

(Council Regulation No 1, Art. 3, Council Regulation No 17, Art. 19(1) and (2) and Commission Regulation No 99/63, Art. 2(1))

2. Competition ° Administrative procedure ° Commission decision establishing an infringement ° Exclusion of evidence not disclosed to the addressee undertaking

(EEC Treaty, Art. 85(1))

3. Competition ° Agreements, decisions and concerted practices ° Concerted practice ° Meaning ° Exchange of information under a cartel agreement

(EEC Treaty, Art. 85(1))

4. Competition ° Agreements, decisions and concerted practices ° Effect on trade between Member States ° Criteria

(EEC Treaty, Art. 85(1))

5. Competition ° Community rules ° Application ° Anti-competitive conduct fostered by the authorities of a Member State ° Not relevant

(EEC Treaty, Arts 85 and 86)

6. Community law ° Principles ° Force majeure ° Meaning

7. Competition ° Community rules ° Infringement ° Failure by the Commission to take action regarding other infringements ° Does not constitute justification

(EEC Treaty, Arts 85, 86 and 155)

8. Competition ° Fines ° Criteria for calculation which the Commission intends applying ° Indication thereof during administrative procedure ° No obligation to that effect ° Desirability of disclosing the method of calculating the fine

(Council Regulation No 17, Art. 15)

9. Competition ° Fines ° Amount ° Community penalties and penalties imposed by the authorities of a Member State for infringement of domestic competition law ° Imposition of both ° Permissible ° Commission' s obligation to take account of a national penalty imposed in respect of the same conduct

(Council Regulation No 17, Art. 15)

1. Although in a competition procedure both the statement of objections and the final decision are procedural documents specifically provided for as such in Article 19(1) of Regulation No 17 and Article 2(1) of Regulation No 99/63 on the hearings provided for in Article 19 of Regulation No 17, which define the Commission' s position vis-à-vis their addressee and therefore must be regarded as "documents" within the meaning of Article 3 of Regulation No 1 and hence sent to their addressee in the language of the case, the annexes to the statement of objections which do not emanate from the Commission must be regarded as supporting documentation on which the Commission relies and must therefore be brought to the attention of the addressee as they are, so that the addressee can apprise himself of the interpretation of them which the Commission has adopted and on which it has based both its statement of objections and its decision.

2. A decision sent to an undertaking under Article 85(1) of the Treaty cannot rely, for evidence against the undertaking, on documents which were not disclosed to the undertaking when the statement of objections was sent and which it was therefore justified in regarding as not important to the case.

3. The exchange, between undertakings, in pursuance of a cartel falling under Article 85(1) of the Treaty, of information concerning their respective deliveries, which not only covers deliveries already made but is intended to facilitate constant monitoring of current deliveries in order to ensure that the cartel is sufficiently effective, constitutes a concerted practice within the meaning of that article.

4. For an agreement, decision or concerted practice to be capable of affecting trade between Member States within the meaning of Article 85(1) of the Treaty, it must be possible to foresee with a sufficient degree of probability, on the basis of legal or factual considerations, that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States giving rise to a fear that the realization of a single market between Member States might be impeded.

Article 85(1) of the Treaty does not require the restrictions of competition ascertained actually to have appreciably affected trade between Member States but merely requires that it be established that they were capable of having that effect.

5. The fact that anti-competitive conduct on the part of undertakings was known, authorized or even encouraged by national authorities has no bearing on the applicability of Article 85 of the Treaty or, where appropriate, Article 86.

6. The concept of force majeure must be understood in the sense of abnormal and unforeseeable circumstances, beyond the control of the person seeking to rely on it, the consequences of which could not have been avoided despite the exercise of all due care.

7. Even on the assumption that the Commission failed to fulfil certain of its obligations under Article 155 of the Treaty by failing to ensure the observance of Community competition law by certain undertakings, that fact cannot justify any infringements of the same rules by another undertaking.

8. The Commission is not required to indicate, in the administrative procedure in a competition case, the criteria according to which it envisages imposing any fine.

Nevertheless, it is desirable for undertakings ° in order to be able to define their position in full knowledge of the facts ° to be able to determine in detail, in accordance with any system which the Commission might consider appropriate, the method of calculation of the fine imposed upon them, without being obliged, in order to do so, to bring court proceedings against the Commission decision ° which would be contrary to the principle of good administration.

9. Although the possibility of concurrent sanctions resulting from two parallel procedures pursuing different ends is acceptable as a result of the special system of sharing jurisdiction between the Community and the Member States with regard to cartels, by virtue of a general requirement of natural justice the Commission must, in determining the amount of the fine under Article 15 of Regulation No 17, take account of penalties which have already been borne by the same undertaking for the same action, where they have been imposed for infringements of the cartel law of a Member State which have thus been committed on Community territory.

In Case T-147/89,

Société Métallurgique de Normandie, a company incorporated under French law, established in Mondeville (France), represented by Robert Collin and Richard Milchior, of the Paris Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 8-10 Rue Mathias Hardt,

applicant,

v

Commission of the European Communities, represented by Norbert Koch, Enrico Traversa and Julian Currall, of its Legal Service, acting as Agents, and Nicole Coutrelis and André Coutrelis, of the Paris Bar, with an address for service in Luxembourg at the office of Georgios Kremlis, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the annulment of Commission Decision 89/515/EEC of 2 August 1989 relating to a proceeding under Article 85 of the EEC Treaty (IV/31.553 ° Welded steel mesh, OJ 1989 L 260, p. 1),

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (First Chamber),

composed of: H. Kirschner, President, C.W. Bellamy, B. Vesterdorf, R. García-Valdecasas and K. Lenaerts, Judges,

Registrar: H. Jung,

(The grounds of judgment are not reproduced.)(1)

hereby:

1. Dismisses the application;

2. Orders the applicant to pay the costs.