JUDGMENT OF 11. 6. 1968 — CASE 29/67 DE WENDEL v COMMISSION

In Case 29/67

THE COURT composed of: R. Lecourt, President, A. M. Donner and. W. Strauß, Presidents of Chamber, A. Trabucchi, R. Monaco, (Rapporteur), J. Mertens de Wilmars and P. Pescatore, Judges, Advocate-General: K. Roemer Registrar: A.Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

II — Conclusions of the parties

III — Submissions and arguments of the parties

Admissibility

The substance

I — Infringement of an essential procedural requirement

(a) The first complaint

(b) The second complaint

(c) The third complaint

(a) The first complaint

(b) The second complaint

(c) The third complaint

II — Infringement of the Treaty and of the rules of law relating to its application

A — The nullity of the contested decision

1. The nature of the contested transactions (infringement of the first sentence of the first paragraph of Article 2 of Decision No 30/53)

2. The discriminatory nature of the price variations applied

3. The distinction between transactions entered into with German motor car manufacturers and the other transactions

B — The illegality of the second sentence of the first paragraph of Article 2 of Decision No 30/53

Grounds of judgment

Admissibility

The submission of infringement of the Treaty

A — The duty not to discriminate

B — The duty of publication

The submission of infringement of an essential procedural requirement

Costs

I —. Facts and procedure

(a). Transactions entered into between the applicant and four German motorcar manufacturers (Volkswagen, Auto-Union, Daimler-Benz and Opel) for the delivery of their cold-rolled sheets;

(b). Transactions entered into with twelve French consumers of thin sheets including three manufacturers of motor cars (Citroen, Simca and Chausson) and seven other customers in respect of different products;

(c). Delivery of wire rod to the Bekaert wire-drawing plant.

II —. Conclusions of the parties

III —. Submissions and arguments of the parties

I —. Infringement of an essential procedural requirement

(a). The first complaint

(b). The second complaint

(c). The third complaint

(a). The first complaint

(b). The second complaint

(c). The third complaint

II —. Infringement of the Treaty and of the rules of law relating to its application

A —. The nullity of the contested decision

1. The nature of the contested transactions (infringement of the first sentence of the first paragraph of Article 2 of Decision No 30/53)

(a). On the one hand, none of the four criteria which — taken alone or together — in the opinion of the applicant justify the classification of the contested transactions as exceptional transactions, can be applied.

(b). On the other hand, a comparison with the agreements entered into by the applicant with the nineteen French customers discloses that the main purpose of each of them was substantially the same, as is shown in summary form by the above analysis. In addition to the variations relating to the special and specific aspects of each case, these agreements are identical so far as a number of important points are concerned, which also proves that the various transactions at issue are not exceptional transactions.

2. The discriminatory nature of the price variations applied

(a). the Société de Wendel does not deny that it granted different price increases and reductions;

(b). even if it is admitted that only the actual final price must be taken into consideration the applicant's argument is not valid, because the prices actually applied in this case, although brought closer to each other, are appreciably different for the French customers bound by contract;

(c). finally, the applicant has not established that it allowed all its customers affected by the economic situation or the current economic state of the trade a discount connected with these factors. As the current economic state of the trade affects all customers in the same way the discount attributable to these factors should have been allowed to all customers.

(a). the Société de Wendel did not infringe the principle of non-discrimination by agreeing different price increases and reductions, because the diversity of the discounts allowed is explained by the fact that the transactions were not comparable. Annual deliveries of 50000 metric tons of steel sheets to motor car manufacturers (Citroen, Simca) cannot be put on the same footing as annual deliveries of 5000 metric tons of commercial steel to wire-drawing firms and manufacturers of nuts and bolts (Giros, Hermant-Hicquet).

(b). With regard to the discount mentioned in the annex to the contested decision under the columns headed loyalty discounts and conjunctural rebates their designation is simply a matter of presentation and is of minor importance. It is only the actual final price which is the decisive factor. Therefore in the case of Citroen and Simca the discounts allowed are made up in a different way but the final amount of the premium is the same. Of course the analysis of these discounts, which is necessary in order to check whether there has been any discrimination, muts be based on groups of comparable transactions and then checked against categories of consumers.

(c). Finally, with regard to the argument that the applicant sold some of its products at the list price whereas it allowed discounts for the economic situation on others, it is sufficient to call attention again to the fact that the expressions conjunctural rebate and rebate in respect of market conditions are of purely formal significance and that it is only the actual final price which is relevant. This price can be fixed in the case of transactions which are not current, provided of course that the principle of non-discrimination is observed in relation to comparable transactions (the first paragraph of Article 2 of Decision No 30/53).

3. The distinction between transactions entered into with German motor car manufacturers and the other transactions

B —. The illegality of the second sentence of the first paragraph of Article 2 of Decision No 30/53

A —. The duty not to discriminate

B —. The duty of publication

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to Articles 2, 3, 4, 33, 36, 60 and 64 of the Treaty establishing the European Coal and Steel Community; Having regard to the Protocol on the Statute of the Court of Justice annexed to the Treaty establishing the European Coal and Steel Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Article 69; THE COURT hereby:

1 Dismisses the application as inadmissible in so far as it seeks the annulment of the second sentence of Article 2 of Decision No 30/53, as amended by Article 1 of Decision No 1/54 and in all other respects as unfounded;

2 Orders the applicant to bear the costs.