of the ECSC Treaty does, to a certain extent, limit competition between undertakings in so far as prices are concerned by requiring these undertakings to publish their prices and to abstain from applying dissimilar conditions to comparable transactions.
It is therefore all the more important to ensure that the remaining competition, the existence of which the ECSC Treaty presupposes, is not restricted by agreements or concerted practices between undertakings. The creation of artificial market conditions in which abnormal standards of information and market stability eliminate certain competitive risks is at variance with the undistorted competition which the ECSC Treaty strives to protect. This is all the more so where the benefits of this artificial improvement in information are, as in this case, reserved to the producers and their distributors while they are withheld from the buyers.
(241) Some of the parties argued that their actions were only aimed at combating conduct which was incompatible with Article 60, that is to say sales which did not respect the rules on pricing laid down in that provision. The argument put forward was to the effect that an agreement with the exclusive purpose of preventing actions which are not covered by the concept of 'normal' competition within the meaning of the ECSC Treaty would not infringe Article 65. Even if this argument were accepted, the companies would not be able to benefit from it. It is clear that this was not the purpose behind the price arrangements between the parties. In any event, the enforcement of the provisions of Article 60 is the responsibility of the Commission. The companies cannot disregard the official prices published by them and agree on - unpublished - target prices between themselves instead.
(d) Participation of the parties
(242) The prices discussed at the meetings of the Poutrelles Committee or in their context were the prices to be applied for deliveries to the respective market. In principle, all the parties concerned were exporting to the markets covered by the arrangements. The responsibility for the agreements and concerted practices described above therefore has to be borne by all the companies for the period during which they participated in the meetings and the concomitant cooperation.
Since the cartel was continuing over a number of years, the fact that some participants may have missed certain meetings is of no practical relevance. In any case absentees were informed of what had been decided at meetings.
(243) The individual behaviour of each of the companies will be considered below.
3.4.1.2 Harmonization of extras
(a) Agreements
(244) At the meeting on 15 November 1988 an agreement was reached to harmonize quality extras. The object and effect of this agreement was not only to harmonize extras but also to increase them by adopting the levels of quality extras in use in Germany at that time as the target to be attained (see recital 122).
(245) At the meeting on 19 April 1989 an agreement was reached to harmonize size extras the object of which was not only to harmonize but also to increase dimension extras (see recital 125 to 128 and - for the background - recital 124).
The evidence shows that the new dimension extras were indeed applied by the participants as from 1 October 1989. However, their application had some negative repercussions on basis prices.
(246) At the meeting on 6 June 1989 a further agreement to harmonize quality extras was reached (see recital 129). The object and effect of this agreement was not only to harmonize extras but also to increase them.
(247) At the meeting on 16 May 1990 a further agreement to harmonize size extras was reached (see recitals 132 to 134). The fact that these increases were indeed the subject of an agreement is confirmed by a report prepared by the Walzstahl-Vereinigung and the confidential note dated 17 May 1990 drawn up by the secretariat of the Poutrelles Committee (see recitals 133 and 135).
(248) At the meeting on 4 December 1990 an agreement to harmonize size extras was reached. The fact that there was indeed an agreement can be deduced from the following circumstances:
- the issue had been discussed at meetings of the Poutrelles Committee and elsewhere at least since 11 September 1990 (see recitals 138 and 119),
- the Italian group had already tabled a proposal for the harmonization of size extras on 11 September 1990 (see recital 138),
- in November 1990 the Walzstahl-Vereinigung circulated a proposal which was clearly meant to be adopted by all producers in the ECSC (recital 139),
- the minutes of the meeting on 4 December 1990 and the fax sent by the Walzstahl-Vereinigung to British Steel on 13 December 1990 (see recital 141) confirm that there had been an agreement to harmonize size extras. The purpose underlying this step - namely to increase overall prices without raising basis prices - is set out in unambiguous terms in the fax sent to Ferdofin by the Walzstahl-Vereinigung on 19 December 1990 (see recital 121).
(b) Article 65 (1)
(249) Since extras form part of the ultimate price to be paid for the products in question on the continental markets of the ECSC these agreements to harmonize extras were agreements to fix prices contrary to Article 65 (1).
(250) The evidence shows that the purpose of these agreements was not (as some of the parties claim) to further transparency, but to increase prices. In order to make the market more transparent in accordance with Article 60 of the ECSC Treaty, it would have sufficed to harmonize the structures (and not the actual amounts) of the extras.
(c) Participation of the companies
(251) The evidence shows that all the parties concerned were a party to these agreements. This also applies to British Steel. Although the agreements only concerned continental markets and not the United Kingdom market (due to the fact that extras are not used there) British Steel agreed to respect the new extras for deliveries on the continent.
(252) For the reasons set out at recital 313, Ensidesa and Aristrain will not be held responsible for their participation in the agreement of 15 November 1988. As to the period after 1 January 1989, whilst it is true that the Spaniards did not harmonize their own extras in Spain (but only promised to do so), they agreed with the others to apply the harmonized extras in the other ECSC markets concerned.
3.4.1.3. Market-sharing arrangements
(a) Ferdofin
(253) As described above (recital 61) a market-sharing agreement was concluded on 14 July 1988 under the terms of which Ferdofin was to restrict its sales to Germany, the Benelux countries, France and Denmark/Ireland/Greece respectively.
The wording of Ferdofin's telex of 4 August 1988 (see recital 62) confirms that the limitation of Ferdofin's exports to the relevant markets had been the subject of an agreement and did not represent a unilateral action. As the identity of the other parties to the agreement could not be ascertained, only Ferdofin will be held responsible for this agreement.
(b) 'Traverso methodology'
(254) A system under which the participating companies strove to match supply and demand was in operation for the fourth quarter of 1988 and the first quarter of 1990 (see recitals 72 to 79). The evidence shows that this system was set up shortly before 19 July 1988 (recital 72).
(255) The following companies participated in this system: Peine-Salzgitter, Thyssen, Kloeckner, Saarstahl, Unimétal, Ferdofin, Cockerill Sambre, TradeArbed and British Steel (see recital 75).
(256) The companies concerned notified their delivery plans to the chairman of the CDE. These figures were then circulated among the participating companies (see recital 74). The chairman of the CDE was in a position to approach any of these companies and suggest modifications if he thought fit to do so.
(257) The chairman of the CDE regarded the delivery plans which were thus distributed among the participants as recommendations which should not be exceeded. The evidence shows that the participating companies, at least in principle, shared this view (see recital 77).
These 'recommendations' laid down specific figures for each of the companies and each of the markets concerned. Companies which disregarded these figures were approached by the chairman of the CDE and Eurofer and requested to respect the traditional pattern of trade (see recital 72).
As a result the participating companies knew the conduct as to deliveries which their competitors proposed to adopt in the furture.
(258) By disclosing their delivery plans to each other and by putting into effect the recommendations of the chairman of the CDE the companies concerned removed the uncertainty which each of them would normally have had to bear concerning the future behaviour of their competitors. Such conduct therefore tends to have as its object or effect the restriction of competition. It therefore represents a concerted practice prohibited by Article 65 (1) of the ECSC Treaty.
(259) The fact that the system described above had only limited success and that it was of a voluntary nature does not invalidate this conclusion.
(c) France
(260) An agreement under which the participants concerted their deliveries on the French market for the fourth quarter of 1989 was reached at the meeting on 21 September 1989 or shortly before or after this meeting.
The following companies participated in this agreements: Peine-Salzgitter, Thyssen, Saarstahl, Ferdofin, Cockerill Sambre, TradeArbed, British Steel, Ensidesa and Unimétal (see recitals 63 to 71). Ensidesa was not actively involved in the elaboration of the scheme but complied with it.
(261) The telex from the Walzstahl-Vereinigung dated 26 September 1989 which sets out the tonnages which the participating companies intended to deliver (see recital 67) does not itself show that these companies were concerting their sales on the French market. However, the fact that these delivery plans had indeed been concerted and did not represent the result of individual decisions taken independently by each company is sufficiently proven by the following circumstances:
- Peine-Salzgitter, Thyssen, Saarstahl, British Steel, Cockerill Sambre, Unimétal and TradeArbed had held discussions prior to the meeting on 21 September 1989 with a view to finding a formula for dividing up the French market (see recitals 63 and 64),
- at the meeting on 21 September 1989, Unimétal had clearly specified the sum of deliveries to the French market in the fourth quarter of 1989, the quantities which it intended to deliver itself and the tonnages for non-Eurofer companies from the ECSC and non-ECSC countries respectively. By doing so it necessarily implied that the balance (some 33 000 tonnes/month) was to be shared among the other companies participating in the Poutrelles Committee,
- the note of the Walzstahl-Vereinigung dated 25 September 1989 (see recital 66) confirms that companies delivering to France were concerting their sales,
- the wording of the fax which the secretariat sent out on 7 November 1989 confirms (see recital 68) that a 'system' for deliveries to France in the fourth quarter of 1989 had been established.
(262) Most of the participating companies acted accordingly or even delivered less than envisaged (see recital 69). Only three companies (Thyssen, Ferdofin and British Steel) delivered substantially more than they had announced previously.
3.4.1.4. Exchange of information
(a) Monitoring of orders and deliveries
(263) The following companies engaged in an exchange of information concerning their orders and deliveries of beams (see recitals 39 to 46): Peine-Salzgitter, Thyssen, Saarstahl, Hoesch, Neue Maxhuette, TradeArbed, Cockerill Sambre, British Steel, Unimétal, Ferdofin, Aristrain und Ensidesa.
The figures exchanged under the order-monitoring system showed the orders which each individual company had received for delivery in France, Germany, Belgium/Luxembourg, the Netherlands, the United Kingdom, Italy, Spain, Portugal and Greece/Ireland/Denmark. The figures exchanged under the monitoring of deliveries were those for deliveries to Germany, France, the United Kingdom, the Benelux countries, Italy, Greece/Ireland/Denmark, Portugal and Spain. Figures were exchanged for a considerable period of time, beginning in 1984 or before (monitoring of orders) and in the fourth quarter of 1988 (monitoring of deliveries) respectively. The exchange of individual figures for each company was temporarily suspended at the end of July or in the beginning of August 1990. The exchange of individual figures for orders was resumed - at least between TradeArbed, Ensidesa, Unimétal, Ferdofin and Aristrain - in October 1990 at the latest. Thyssen, Saarstahl, Peine-Salzgitter, Neue Maxhuette and Hoesch resumed participation in the exchange of individual information, through the intermediary of the Walzstahl-Vereinigung, in December 1990 at the latest (recital 46). The exchange of individual information on deliveries was continued in the third quarter of 1990 between TradeArbed, Unimétal, Ensidesa and Aristrain.
(264) The system for the exchange of information on orders is the result of an agreement between those taking part in it. The establishment of the monitoring system for deliveries owes its origin to an agreement which was first reached on 18 October 1988 (see recital 41) and (expressly or tacitly) renewed several times on the occasion of meetings of the Poutrelles Committee. In so far as the companies actively participating in the Poutrelles Committee are concerned (that is to say all the companies involved in this exchange of information apart from Hoesch and Neue Maxhuette) there is abundant evidence that these parties knew of and agreed to the exchange of this information. That Hoesch and Neue Maxhuette knew of this arrangement and adhered to it is proven by the fact that all the companies contributing figures to this monitoring received a copy of the tables which were prepared by Usinor Sacilor on the basis of this information.
(265) All the companies contributing their figures to this exchange of information therefore knew that their figures were circulated to their competitors. It is not conceivable that they would have made their figures available if they had not agreed to their being disclosed to competitors.
(266) In order to be able to compete effectively on a given market, companies need information about that market and developments on it. The preparation and distribution of collated output, sales or other statistics within an industry is a task which may legitimately be undertaken by statistical offices and trade associations. The provision of such statistics can improve the companies' knowledge of the market in which they operate and thereby increase competition. The Commission does not therefore object where national trade associations representing the same economic interests in different countries exchange statistics which set out production and sales figures for the industry in question without identifying individual companies (21).
(267) In the present case, however, the parties concerned have gone beyond what is admissible. The figures exchange showed the deliveries and the orders received by each individual company for delivery to the respective markets. Such information is normally regarded as strictly confidential by undertakings. The figures on orders were updated every week and circulated rapidly among the participants.
The delivery figures were circulated shortly after the end of the quarter concerned. Each of the participating companies had thus a comprehensive and detailed knowledge about the deliveries which their competitors intended to carry out and their actual deliveries. These companies were consequently in a position to ascertain the behaviour which their competitors proposed to adopt or had adopted on the market and act accordingly. The evidence shows (see in particular recital 59) that this was the very reason why the parties concerned engaged in this exchange of information.
(268) The information thus exchanged served as the basis of discussions on trade flows (see recitals 49 to 60) which were one of the main topics on the agenda of the meetings of the Poutrelles Committee (recital 57). Companies whose orders exceeded the 'normal' level were taken to task (see for example recital 51).
Companies from countries whose exports exceeded certain levels were requested to explain the reasons for these increases (see for example recital 51). On occasions certain companies were directly criticized over their deliveries to other Member States (see, in particular recitals 53 and 60).
The monitoring of deliveries and the monitoring of orders complemented each other, thereby improving the effectiveness of this exchange of information. The participating companies closely followed these figures and checked whether the deliveries matched the orders previoulsy announced by the companies. In case of discrepancies the companies concerned were asked to provide an explanation (see recitals 49 to 60). The parties thus indeed managed to bring about a remarkable degree of transparency as between themselves.
The exchange was not limited to figures of a merely historical value with no possible impact on competition. If this had been the case, the extensive discussions on these figures would be inexplicable.
(269) This exchange of information therefore resulted in the establishment of a system of solidarity and cooperation designed to coordinate business activities. The parties participating in this exchange of information thereby replaced the normal risks of competition by practical cooperation, resulting in conditions of competition differing from those obtaining in a normal market situation. In this context proper account has to be taken of the fact that the market for beams in the Community is an oligopolistic market where a very limited number of suppliers offers homogeneous products to the consumer.
(270) The exchange of individual information between undertakings is not necessarily a breach of the competition rules. Each case must be examined separately and all the relevant factors including the nature of the information, its degree of aggregation and the market concerned should be taken into account when determining whether the exchange constitutes an illegal restriction of competition. The exchange of individual information which is not likely to influence the behaviour of the undertakings in the market because it is of only historical interest may therefore be permitted. In view of the negative effects on competition between the participating companies a system for the exchange of information such as the one in the present case is not covered by the Commission notice on cooperation between undertakings (22), particularly paragraph II.1 thereof.
(271) The fact that this system for the exchange of information had the effect of creating transparent market conditions in no way invalidates the conclusion that this system infringes Article 65 (1) of the ECSC Treaty.
In Decisions 87/1/EEC (Fatty Acids) (23) and 92/157/EEC (United Kingdom Agricultural Tractor Registration Exchange) (24) the Commission took the view that the exchange of detailed information enabling the behaviour of the individual companies in narrow oligopolies to be identified constituted an infringement of the competition rules. The Commission does not however object to the exchange of aggregated historical information. In this case the information exchanged included accurate and up-to-date information about orders and deliveries of individual companies.
None of the provisions of the ECSC Treaty relied on by the parties (in particular Articles 46, 47, 48 and 60) requires or allows the exchange of sensitive information such as figures on orders and deliveries among competitors. This 'transparency' was in any event limited to the producers themselves; consumers (see Article 48(3) of the Treaty) did not benefit from it.
The wording of Article 65 (2) of the ECSC Treaty is narrower than that of Article 85 (3) of the EC Treaty. The scope for exempting (or authorizing) agreements is therefore less under the ECSC Treaty. However, this difference could only be used as an argument for excluding the present system for the exchange of information from Article 65 (1) if it also produced substantial advantages or improvements. Even at the hearing and with the benefit of the assistance of eminent economists the parties were not able to explain why an exchange of individual figures was necessary and why the exchange of aggregated historical information (to which the Commission does not object) would not have been sufficient.
A degree of uncertainty as to the behaviour which competitors propose to adopt on the market is essential for the maintenance of competition.
(b) Exchange of information through the Walzstahl-Vereinigung
(272) The above considerations apply mutatis mutandis to the exchange of information in which Thyssen, Peine-Salzgitter, Hoesch, Neue Maxhuette, Saarstahl and TradeArbed engaged, via the Walzstahl-Vereinigung, at least in the third and fourth quarter of 1990 (see recitals 47 and 48). It is not credible that the Walzstahl-Vereinigung could have obtained and circulated the figures for orders received and deliveries carried out by the participating companies without the knowledge and approval of these companies. The only difference between this exchange of information and the monitoring system operated by the secretariat of the Poutrelles Committee lay in the smaller number of participants.
3.4.2. Restrictive practices on the German market
(273) As described above the following companies engaged in restrictive practices on the German market:
- Peine-Salzgitter, Thyssen and TradeArbed entered in various price-fixing agreements, beginning in December 1986 (see recitals 147 and 148),
- Peine-Salzgitter and TradeArbed attended two meetings in June 1987 which resulted in concerted price increases (see recital 149),
- at a meeting in January 1988, Peine-Salzgitter, TradeArbed, Hoesch, Saarstahl and Thyssen adopted common recommendations as to prices and agreed on major aspects of their future price policy (see recital 150),
- prices were fixed between TradeArbed and Hoesch at some stage prior to 18 April 1989 (see recital 152),
- on at least two occassions in 1989 several producers agreed to restrict their deliveries to the German market with a view to stabilizing this market. Of these undertakings only Peine-Salzgitter can be identified as taking part in the first of these agreements (see recital 153) whilst on the second occasion only Peine-Salzgitter, Saarstahl and TradeArbed can be identified as having agreed to limit their deliveries (see recital 154).
3.4.3. Restrictive practices on the French market
(274) In 1987, at least Unimétal, Cockerill Sambre and TradeArbed were concerting the prices they charged on the French market (see recital 155).
3.4.4. Restrictive practices on the Italian market
(275) Agreements or concerted practices for the fixing of prices or the sharing of markets in Italy were entered into on various occasions as follows:
- at the meeting on 7 April 1987, target prices for the Italian market which had previously been fixed were renewed or confirmed between Ferdofin, TradeArbed, Peine-Salzgitter and Unimétal (see recital 155),
- further price agreements were concluded at an unspecified date some time after this meeting (see recitals 157 to 159). The evidence shows that at least Peine-Salzgitter and Ferdofin must have been a party to these agreements,
- an agreement on prices for the first quarter of 1988 was reached between TradeArbed, Peine-Salzgitter, Unimétal, British Steel, Aristrain, Ensidesa, Ferdofin, Stefana, Thyssen, Saarstahl and Cockerill Sambre at a meeting on 25 November 1987 (see recitals 160 and 161). For the reasons set out below (recital 313) Aristrain and Ensidesa will not be held responsible for this agreement,
- prices for the second quarter of 1988 were fixed between TradeArbed, British Steel, Peine-Salzgitter, Saarstahl, Thyssen, Unimétal, Cockerill Sambre, Ferdofin and Stefana at a meeting on 13 March 1988. The same companies (with the exception of Stefana) also entered into a market-sharing agreement pursuant to which quotas for deliveries to Italy were attributed (see recitals 162 to 165),
- price increases for the third quarter of 1988 were agreed at some unspecified date prior to 28 June 1988. At least Ferdofin and Peine-Salzgitter were a party to this agreement (see recital 166),
- on 21 June 1988 a decision was taken to renew the market-sharing arrangement for the third quarter of 1988 (see recitals 167 and 168). It follows that this agreement was entered into by Ferdofin, TradeArbed, British Steel, Cockerill Sambre, Peine-Salzgitter, Saarstahl, Thyssen and Unimétal,
- further target prices were agreed on between TradeArbed, British Steel, Peine-Salzgitter, Unimétal and Ferdofin at a meeting on 3 October 1988 (see recital 169),
- prices were fixed between TradeArbed, Peine-Salzgitter, Saarstahl, Unimétal, Thyssen and Ferdofin at a meeting on 15 May 1990 (see recitals 170 and 171).
3.4.5. Individual agreements
3.4.5.1. British Steel-Ensidesa/Aristrain
(276) At an unspecified date early in 1990 an agreement was reached between British Steel, Ensidesa and Aristrain under the terms of which British Steel was to limit its sales in Spain. Price increases for the first quarter of 1991 were also agreed (see recitals 172 to 174).
3.4.5.2. British Steel-Ferdofin
(277) Since late 1987, at least, an agreement existed between British Steel and Ferdofin pursuant to which the latter undertook not to sell in the United Kingdom (see recitals 175 and 176).
3.4.6. Conclusions
(278) All of these agreements and concerted practices set out in recitals 273 to 277 tended to restrict competition and are therefore contrary to Article 65 (1).
4. EXCHANGE OF INFORMATION THROUGH EUROFER
(279) A separate system for the exchange of information was organized and run by Eurofer as described above (recitals 143 to 146). Eurofer circulated information on deliveries by companies which were, directly or indirectly, members of Eurofer.
(280) Eurofer is an association of undertakings for the purposes of Article 65 of the ECSC Treaty. This conclusion is not affected by the fact that most of its members are themselves associations of undertakings. In order to be able to apply the competition rules of the ECSC Treaty both properly and effectively the Commission is required to look at the economic substance rather than the legal form in a given case. Furthermore it has to be pointed out that an entity the members of which (both undertakings and associations of undertakings) are themselves subject to the provisions of Article 65 of the ECSC Treaty cannot itself be exempted from the scope of application of this provision.
(281) Article 65 (1) of the ECSC Treaty refers to decisions by associations of undertakings which may restrict competition. The existence of such a decision may be inferred from the actual conduct of an association of undertakings, its bodies or its subsidiary organs.
According to Eurofer's articles of association the exchange of information is one of the tasks which this association has to carry out (Article 2, fourth indent). It has to be assumed that Eurofer did not act without the express or tacit approval of its members. This is confirmed by the fact that the figures exchanged were those of the companies that were (directly or indirectly) members of Eurofer.
(282) This interpretation is in accordance with the letter, the spirit and the purpose of Article 65 which prohibits all agreements, decisions and concerted practices tending to restrict competition.
(283) The circulation of information through Eurofer tended to have the same detrimental effects on competition as the systems for the exchange of information described above (see recitals 263 to 272). Eurofer provided the companies which were (directly or indirectly) its members with information on the deliveries made by their competitors. The circulation of such information which is normally regarded as a trade secret made it possible for each company to establish what form of conduct its competitors were engaging in on individual markets. This exchange of information thereby resulted in the normal risks of competition being replaced by practical cooperation and in conditions of competition different from those obtaining in a normal market. Such conduct is contrary to Article 65 (1) of the ECSC Treaty.
5. ACTIVITIES OF THE
EUROFER/SCANDINAVIA GROUP
5.1. The nature and structure of the group
(284) From 1986 onwards, at the latest, producers and distributors of beams from the ECSC and from Scandinavia and some of their associations have participated in a series of agreements or concerted practices decided in the framework of a system of regular meetings and continuous contact.
(285) The following companies regularly attended these meetings and/or took part in the agreements and concerted practices:
- Peine-Salzgitter,
- Thyssen,
- Saarstahl (since 1988),
- TradeArbed,
- Steelinter,
- Unimétal,
- British Steel,
- Norsk Jernverk,
- Ovako (at least since 1 September 1988),
- SSAB (until 31 August 1988),
- Smedjebacken/Fundia Steel AB.
Several associations of undertakings and Usinor Sacilor (which provided the secretariat) also participated in these activities. It appears that none of these made a substantial and individual contribution which would make it necessary to adopt a decision not only against their members (or, in the case of Usinor Sacilor, a subsidiary) but also against themselves.
(286) These meetings related to the situation on the markets for merchant bar and beams in Scandinavia, that is to say in Norway, Sweden, Finland and Denmark. Only the aspects concerning the market for beams in Denmark are considered here.
(287) The overall plan of the parties was to meet and reach agreement on the prices to be charged for exports to Denmark. As a result of regular contacts these arrangements were continually modified or updated so as to take account of changing conditions and market reactions.
(288) The Commission considers that the whole complex of schemes and arrangements decided in the context of a system of regular and institutionalized meetings between the producers mentioned in recital 285 constituted a single continuing 'agreement' within the meaning of Article 65 (1).
It is not necessary, in order for a restriction to constitute an 'agreement' within the meaning of Article 65 (1) for the agreement to be intended as legally binding upon the parties. An agreement exists if the parties reach a consensus on a plan which limits or is likely to limit their commercial freedom by determining the lines of their mutual action or abstention from action in the market. No contractual sanctions or enforcement procedures are required. Nor is it necessary for such an agreement to be made in writing.
(289) In the present case the companies, by subscribing to a common plan to regulate prices in the beams market in Denmark, participated in an overall framework agreement which was implemented by a series of more detailed sub-agreements worked out from time to time which will be summarized below.
(290) The conclusion that there is one continuing agreement is not affected by the fact that some companies were not present at every meeting. Since the cartel existed for a number of years, the fact that some participants may have missed certain meetings is of no practical relevance. In any case absentees were informed of what had been decided at meetings.
5.2. Agreements and concerted practices
(291) The Commission considers that the operation of the cartel constituted an 'agreement' within the meaning of Article 65 (1).
The concepts of 'agreements' and 'concerted practices' are distinct, but cases may arise where collusion presents some of the elements of both forms of prohibited cooperation.
As set out above (see recitals 219 and 220) the importance of the concept of a concerted practice does not result so much from the distinction between it and an 'agreement' as from the distinction between forms of collusion falling within Article 65 (1) and mere parallel behaviour with no element of concertation. Nothing therefore turns in the present case upon the precise form taken by the collusive arrangements.
5.3. The object and effect of the agreement
(292) In the present case, the basic purpose behind the institution of the system of regular meetings and the continuing collusion of the parties was to agree on prices to be charged for deliveries to the Danish market.
In pursuit of this objective, the parties were aiming at the organization of the market on a basis which substituted for the free operation of competitive forces an institutionalized and systematic collusion between producers and distributors.
(293) It is not strictly necessary, for the application of Article 65 (1), given the overtly anti-competitive object of the agreement, for an adverse effect upon competition to be demonstrated.
The economic analysis submitted by Mr Bishop suggests that the effect of the practices in question was limited. The Commission accepts that this effect decreased towards the end of the period under consideration, the year 1990 in particular is marked by efforts to prevent the prices from slipping. However, there are clear indications that the cartel nevertheless produced an appreciable effect upon competitive conditions:
firstly the participants include all the most important producers of beams from the ECSC exporting to Denmark and all the important beams producers from Norway, Sweden and Finland; secondly it has to be noted that the minutes of the meetings regularly record the parties' view that the various price increases had been achieved.
5.4. Particulars of the cartel and its operation
(294) The evidence shows that target prices for beams on the Danish market were regularly fixed at the meetings of the Eurofer/Scandinavia group throughout the period under consideration.
The participants from the ECSC generally appear to have played the more active part in this cooperation (see recital 191). This is confirmed by the fact that on several occasions (see for example the meetings on 30 July and 28 October 1986) it was agreed that, for all or certain categories, the prices would be set by the participants from the ECSC after the respective meetings. By accepting this approach all the parties attending the Eurofer/Scandinavia meetings marked their agreement with the prices which were fixed later.
(295) The Scandinavian companies put forward an argument to the effect that the prices were actually set or dictated by the Eurofer companies. Although it is clear that the Eurofer companies exerted considerable influence (see above), this argument would appear to understate the role of the Scandinavian participants. The evidence shows that the prices were fixed by the Eurofer companies and the Scandinavian producers acting together (see for example recitals 198 and 206).
(296) The minutes of the meetings in the last years of the period under consideration appear to have been drafted in a rather cautious way and employ terms like 'forecasts' where prices are concerned. It is abundantly clear, however, that these so-called 'forecasts' were in fact also target prices. This conclusion is supported by the words of the chairman of these meetings himself (see recital 201).
At the oral hearing the representative of SSAB and Ovako confirmed that the prices agreed at the meetings were the prices to be applied by the participants.
L. INAPPLICABILITY OF ARTICLE 65 (2)
(297) Pursuant to Article 65 (2) the Commission is to authorize specialization agreements or joint-buying or joint-selling agreements or agreements which are strictly analogous in nature and effect if they satisfy certain specified conditions. In the present case the restrictive practices concerned would never have qualified for authorization since they do not come within the types of agreements which can be authorized. On the contrary, they were designed to share markets and to fix or determine prices, all of which activities are incompatible with the common market for coal and steel.
No application for authorization has ever been made in respect of any of the agreements or arrangments dealt with in this Decision. Furthermore none of the parties have attempted to justify their behaviour by claiming that it could be authorized under
