Commission, November 8, 2006, No 38.907

On 8 November 2006, the Commission re-adopted a decision relating to a proceeding under Article 65 of the ECSC Treaty. In accordance with the provisions of Article 30 of Council Regulation (EC) No 1/2003, the Commission herewith publishes the names of the parties and the main content of the decision, including any penalties imposed, having regard to the legitimate interest of undertakings in the protection of their business interests. A non-confidential version of the full text of the decision can be found in the authentic languages of the case and in the Commission's working languages at DG COMP website at:

http://europa.eu.int/comm/competition/index_en.html

SUMMARY OF THE INFRINGEMENT

1. The addressees of this Decision participated in a series of agreements and concerted practices contrary to Article 65(1) of the ECSC Treaty in the steel beams industry. The Decision addresses co-operation between TradeArbed SA, certain European producers of steel beams and certain of their associations. The infringement's main features included price fixing, allocation of quotas, and, in a large scale, exchange of information concerning the European steel beams industry.

2. The case concerns the re-adoption of the Commission Decision (1) following the judgement of 2 October 2003 by the Court of Justice in Case C-176/99 P, Arbed v Commission (2) where the ECJ annulled the CFI judgement (T-137/94) (3) and on procedural grounds the Commission decision, insofar as it concerned Arbed SA. The facts and the substance of the decision are based on the findings of the earlier Commission decision with the exception of objections that were dismissed by the CFI.

ADRESSEES AND DURATION OF THE INFRINGEMENT

3. The Decision is addressed to three legal entities, belonging to one undertaking, group Arcelor:

Arcelor Luxembourg SA (ex-Arbed SA),

Arcelor International SA (ex-TradeArbed SA),

Arcelor Profil Luxembourg SA (ex-ProfilArbed SA).

4. The addressees of the Decision participated in a single and continuous infringement contrary to Article 65(1) of the ECSC Treaty, covering the whole of the EC by fixing prices, allocating markets and exchanging confidential information in the steel beams industry from at least 1 July 1988 to 16 January 1991.

BACKGROUND

5. In the mid-1970s the European steel industry underwent a crisis characterised by a fall in demand giving rise to excess supply and low prices. Between 1980 and July 1988, the Commission imposed a system of mandatory production quotas for steel beams and for other steel products. At the end of the quota system, the Commission set up a surveillance system involving the collection of statistics on productions and deliveries, monitoring of market developments and regular consultation with the various undertakings in the steel sector. The surveillance system came to an end on 30 June 1990.

6. In January 1991, the Commission carried out inspections at the offices of certain undertakings involved in the production of steel beams and associations of the undertakings.

7. The Commission sent a Statement of Objections to a number of undertakings on 6 May 1992 and held oral hearings at the beginning of 1993. On 16 February 1994, the Commission adopted a decision (4) by which it found that 14 European steel undertakings and one of their trade associations, Eurofer, had participated in a series of agreements, decisions and concerted practices designed to fix prices, share markets and exchange confidential information on the EC market for steel beams, in breach of Article 65(1) of the ECSC Treaty. Altogether fourteen undertakings were fined for infringements committed between 1 July 1988 and the end of 1990.

8. In April 1994, Arbed, and nine other undertakings and Eurofer brought actions before the CFI for annulment and/or reduction of the fines imposed. In 1999, the CFI in the main (in Case T-137/94), upheld the Commission decision. However it reduced the individual fines (5). Following this judgement, Arbed together with seven other undertakings and Eurofer brought actions before the ECJ claiming that the Court should set aside the judgements by the CFI.

9. On 2 October 2003, the European Court of Justice (in Case C-176/99 P, Arbed v Commission) dismissed the appeals brought by Eurofer and six other undertakings (6). However, the appeal brought by Arbed was fully granted.

10. The ECJ annulled in its entirety the CFI judgement and the Commission decision in so far it concerns Arbed. The ECJ found that Arbed's rights of defence had been infringed during the administrative procedure. The Commission decision imposing fines was addressed to Arbed, while the Statement of Objections had been sent to TradeArbed, Arbed's subsidiary, and had not indicated that fines might be imposed on Arbed. Moreover, Arbed had been denied a right of access to the file as the Statement of Objections was not addressed to it.

11. It is held that none of the addressees can seek application of the limitation period. It is considered that the suspension of the limitation period does not only apply to the legal entity which is a party to the proceedings of an appeal (ex-Arbed SA) but to all the companies which make up the economic undertaking presided over by Arbed SA, that includes the other addressees.

PROCEDURE

12. Following the judgement of 2 October 2003 by the ECJ, the Commission decided to re-open the procedure as regards Arbed SA and issued a Statement of Objection on 8 March 2006 correcting the procedural error which consisted in addressing the annulled decision to Arbed SA, which was not an addressee of the original Statement of Objections of 6 February 1992.

13. The Statement of Objections was addressed to Arcelor Luxembourg SA (ex-Arbed SA), Arcelor International SA (ex-TradeArbed SA) (7), the wholly-owned subsidiary of Arbed SA, and to Arcelor Profil Luxembourg SA (ex-ProfilArbed SA), the economic successors of the steel beams activities of Arbed SA.

14. All three companies responded to the Statement of Objections on 20 April 2006. In their replies, none of the three companies contest the facts or their legal appreciation by the CFI as retained in its judgement T-137/94 and reproduced by this decision. No oral hearing was held in this case.

15. The Commission considers that it is competent to adopt this decision. Such competence arises from the succession within a single legal framework of Article 81 of the EC Treaty as a lex generalis and Article 65 of the ECSC Treaty as a lex specialis, at the time of the expiry of the latter treaty.

THE STEEL BEAMS INDUSTRY

16. The products concerned in the present case are wide-flanged beams and other I, H, and U sections with a diameter of 80 mm and more (with the exception of mine frame sections). These products are together referred to as 'beams'. They are finished hot-rolled long products which are mainly used in the construction industry. Beams are ECSC products within the meaning of Article 81 of the ECSC Treaty.

17. The cartel covered the whole of the Community. The size of the steel beams market in the EC in 1990, last complete year of the infringement was EUR 2,54 billion.

FUNCTIONING OF THE CARTEL

18. The co-operation between European producers and distributors of beams and some of their associations proceeded on different levels. On a community level, the most important forum for this co-operation was the meetings of a group know as the 'Poutrelles Committee', one of the committees of Eurofer.

19. Apart from the meetings of the Poutrelles Committee, undertakings and associations of undertakings also meet or met, on a more irregular basis, to discuss the markets of individual Member States, namely Italy, France and Germany, and to co-ordinate their behaviour on these markets.

20. In addition, some companies entered into individual market sharing and/or price fixing arrangements.

21. Finally, undertakings and associations of undertakings from the Community regularly met their counterparts from Norway, Sweden and Finland at the so-called 'Eurofer/Scandinavia' meetings where the Scandinavian meetings markets were discussed.

FINES

22. The Decision maintains the fine at the same level as defined by the CFI in its judgement in Case T-137/94.

23. Therefore, in applying the guidelines on fines in force at the time of the decision, a theoretical calculation of the fine is undertaken, the total amount of which is reduced, for exceptional circumstances, to the amount decided by the CFI, namely EUR 10 million.

24. The size of the steel beams market in the EC in 1990, last complete year of the infringement was EUR 2,54 billion. The infringement is therefore considered very serious and thus, according to the guidelines on fines, the starting amount of the fine must be above EUR 20 million.

25. The infringement lasted between July 1988 and January 1991, which represents a period of two and a half years. Consequently, it is considered appropriate to increase the starting amount of the fine by 25 %.

26. In the present case, there are no aggravating or mitigating circumstances.

27. The level of 10 % of the total turnover of the group is not reached, so no adjustment of the fine is necessary.

28. Finally, due to exceptional circumstances, i.e. the judgement of the Court of First Instance which reduced the initial amount of the fine to EUR 10 million, the final amount of the fine is reduced to EUR 10 million.

DECISION

29. A fine of EUR 10 million is hereby imposed on Arcelor Luxembourg SA (ex-Arbed SA), Arcelor International SA (ex-TradeArbed SA) and Arcelor Profil Luxembourg SA (ex-ProfilArbed SA) jointly and severally.

NOTES

(1) Commission Decision 94/215/ECSC of 16 February 1994 (OJ L 116, 6.5.1994, p. 1).

(2) Case C-176/99 P, Arbed SA v Commission [2003] ECR I-10687.

(3) Case T-137/94, Arbed SA v Commission [1999] ECR II-003063.

(4) OJ L 116, 6.5.1994, p. 1.

(5) Arbed's fine was reduced from EUR 11 200 000 to EUR 10 000 000.

(6) The appeal brought by Aristrain Madrid was partly granted, and referred back to the CFI to determine the appropriate level of the fine.

(7) Following the creation of Arcelor as a result of the merger between Arbed, Aceralia and Usinor in 2002, TradeArbed SA has changed name to Arcelor International.