This Decision is addressed to:
(a) Acerinox SA,
Dr Fleming 51,
E-28036 Madrid;
(b) ALZ NV,
Klein Langerlo,
B-3600 GENK;
(c) British Steel Plc,
9 Albert Embankment,
UK-London SEI 7 SN;
(d) Krupp Stahl AG,
Alleestrasse 165,
D-4630 Bochum;
(e) Terni Acciai Speciali Spa,
Viale B. Brin 218,
I-05100 Terni;
(f) Thyssen Edelstahlwerke AG,
Oberschlesienstrasse 16,
D-4150 Krefeld;
(g) Ugine Aciers de Chatillon et Gueugnon,
Immeuble Ile de France,
Cédex 33,
F-92070 Paris-la Défense;
(h) Avesta Ab,
Box 1000,
S-77401 Avesta;
(i) Outokumpu OY,
Head Office,
Box 280,
SF-00101 Helsinki.
In accordance with Article 92 of the Treaty, this Decision is enforceable.
Done at Brussels, 18 July 1990.
For the Commission
Leon BRITTAN
Vice-President
4 . At no time did any company make any application for the Agreement be authorized . Only an explicit request could have given any right to immunity from fines . The fact that no such application was made makes it clear that the companies were not acting in good faith .
5 . Even if the companies had made such an application this agreement could not have been approved according to Article 65 and therefore the Commission would still be entitled to adopt this Decision declaring it unlawful . The Community companies had years of experience of legal controls under Community law and were well informed about Community competition law .
6 . Companies cannot avoid fines by informally informing officials about agreements which are
inconsistent with Community competition rules .
7 . The Agreement concerned cold-rolled stainless steel flat products, for which there was no Community quota regime . No Community regime had ever authorized an agreement of this kind for stainless steel . The companies must have been aware of this .
8 . The fact that competition has been limited by Community action in certain respects does not authorize companies to restrict it further or in other respects : indeed, it is especially important in such circumstances that the balance between competition and other considerations, when it has been decided on by the Community institutions, should not be altered . Cold-rolled stainless steel products were not subject to the Community production quota regime and the companies were not entitled to install their own regime through restrictive agreements .
9 . The Agreements had no connection with restructuring the steel industry . No reductions in capacity were contemplated by the Agreements .
10 . In considering what fines should be imposed, it is necessary to distinguish between the companies within the Community, the two Nordic companies and the particular situation of Acerinox . All of the companies acted deliberately, or at least negligently, and knew that they were restricting competition .
11 . In deciding whether to impose fines, and if so, the amount of those fines on the enterprises within the Community ( subject, in the case of Acerinox, to the comments made below ), the following points are the most important :
( a ) the companies had been accustomed to a Community regime for other steel products, in the operation of which they had been requested by the Commission to enter into certain agreements to stabilize supply and prices;
( b ) the companies informed some Commission officials, without ever requesting an authorization of the Agreement under Article 65 ( 2 ) of the ECSC Treaty;
( c ) the evidence in the Commission's possession shows that the 1986 Agreement was made by the companies on their own initiative and without any encouragement or pressure of any kind from any Commission official, and was not related to any crisis measures adopted by the Commission;
( d ) in this decision, fines are solely being imposed in respect of the 1986 Agreement .
Because of the facts set out above, it is clear that it would not be correct to impose, in these circumstances, the large fines which would otherwise be appropriate . Indeed, having regard to the possibility of a misunderstanding about the effects of Article 65 and to the fact that there had been "manifest crisis' measures applicable to serveral other categories of products of the steel industry at various times it is considered that, in this exceptional case, the fines imposed on the Community producers should be very much reduced from the levels that would normally be applicable .
12 . Regarding the Nordic companies Avesta and Outokumpu it must be said, in the first place, that the Exchange of Letters did not invite or authorize them to join any cartels, and did not exempt ( indeed could not validly have exempted ) them from Community competition law . Although it is sometimes unnecessary to enforce competition law when there is a commercial policy agreement in force, only the clearest possible words of a formal agreement made by the Commission could ever prevent the Commission from doing so, and even then only to a limited extent : not even the Council can set aside the provisions of the Treaty . Competition law creates private rights and the Commission could not set them aside or dispense companies from their duty to obey it . The Free Trade Agreements with the EFTA countries make it clear that the Commission is entitled to apply Community competition law, and the Exchange of Letters could not be interpreted as taking away that right . In circumstnaces such as in this case, companies in non-Member States which are carrying out instructions from the Commission or their national authorities must go no further than they are instructed to go . Avesta and Outokumpu were never instructed to sign the 1986 Agreement . However, the following points must also be taken into consideration :
( a ) the freedom of Avesta and Outokumpu to sell in the Community at the prices and in the quantities they wished was clearly restricted by the exchange of letters between the Community and Sweden and Finland respectively . The Commission, on the instructions of the Council, had put pressure on the Swedish and Finnish authorities, who in turn put pressure on the two companies, to limit their exports to the Community substantially to levels reached in previous years . for this purpose, the Directorate-General for External Relations, which was responsible for the management of the Exchange of Letters, indirectly encouraged the Noridc companies to enter into certain bilateral agreements with enterprises within the Community .
In certain respects, these companies therefore acted as suggested by the authorities in their own countries . The companies could have communicated these agreements to the Commission, and would have been wise to do so,
( b )
Avesta and Outokumpu were efficient companies in 1986 and subsequently . The Agreement restricting the volume of their exports was contrary to their interests and they would not have entered into them except under pressure . By failing to inform the Directorate General for competition they undoubtedly acted contrary to their own interests;
( c ) There may have been a false impression in the minds of the Nordic companies as to the effects of Article 65 regarding the 1986 Agreement, particularly as they sought and were given assurances by their Community partners that there were no problems in this respect .
13 . The provisions in Protocol 10 to the Act of Accession of Spain and Portugal did not invite or authorize Acerinox or any other Spanish company to join any cartels, and did not exempt ( indeed it could not validly have exempted ) them from Community competition law . However, the following points must also be taken into consideration :
( a ) The freedom of Acerinox to sell in the Community in the quantities it wished, was clearly restricted by the quantitative export limits imposed during the transitional period ( 1986 to 1988 ). In order to implement the provisions of Article 52 and of Protocol 10 to the Act of Accession, the Spanish authorities allocated the yearly export tonnage between the various Spanish producers so as to reflect the historical pattern of trade between Spain and the other Member States . Therefore, in some respect at least, Acerinox was acting as suggested by its authorities to comply with the provisions of Protocol No 10 of the Act of Accession;
( b ) Acerinox was an efficient company in 1986 and it was expanding its production capacity for the products subject to this Decision . Consequently, the arrangement restricting the volume of its exports was contrary to its interests and it would not have entered into them except under pressure . By failing to inform the Directorate-General for Competition, it undoubtedly acted contrary to its own interests;
( c ) there may have been a false impression in the minds of Acerinox as to the effects of Article 65 regarding the 1986 Agreement, particularly as they too sought and were given assurances by their Community partners that there were no problems in this respect .
14 . For the reasons given in section X, points 12 and 13, it is considered that no fines should be imposed on the two Nordic companies, Avesta and Outokumpu, and the Spanish company Acerinox,
HAS ADOPTED THIS DECISION :
