Judgment of the Court 8 July 1970 Ernst Hake and Co. v Commission of the European Communities

In Case 75/69

THE COURT composed of: R. Lecourt, President, R. Monaco and P. Pescatore, Presidents of Chambers, A. M. Donner, A. Trabucchi, W. Strauß (Rapporteur) and J. Mertens de Wilmars, Judges,

Advocate-General: J. Gaud Registrar: A. Van Houtte gives the following

JUDGMENT

Issues of fact and of law

I — Facts

II — Conclusions of the parties

III — Procedure

IV — Submissions and arguments of the parties

The first and second heads of the conclusions in the application

The third head of the conclusions in the application

Grounds of judgment

I — The first and second heads of claim

II — The third head of claim

III — Costs

I —. Facts

(1). to find

(2). to impose on the undertakings forming the cartel (the names of which are known to the Commission through documents in its possession), and especially on the Wirtschaftsvereinigung Eisen- und Stahlindustrie of Düsseldorf, on the steelworks which take part in the cartel and on the commercial undertakings within the group, the sanctions which they incur through having concluded and implemented, in particular on the initiative of the Wirtschaftsvereinigung Eisen- und Stahlindustrie, agreements concerning the following:

(1). the determination, fixing and control of prices;

(2). the sharing of markets, involving for independent dealers a restriction and abolition of their chances of supplying those undertakings which are both members of the cartel and the principal consumers of ferrous scrap in the Federal Republic of Germany, in particular the German steelworks ;

(3). the limitation of purchases of ferrous scrap to given quantities, divided according to a quota system among the ferrous scrap consumer undertakings which have concluded the cartel for the purchase of ferrous scrap ;

(4). the limitation of the total quantities which may be delivered by independent dealers to a percentage fixed at between 20 % and 30 % of the total tonnage as calculated from time to time by the administrative bodies of the cartel, which has gradually prevented independant dealers from supplying the iron and steel undertakings directly;

(5). discriminatory practices with regard to dealers outside the cartel, consisting in the granting of price advantages (for example, delivery premiums) to the commercial companies linked to the undertakings which are members of the cartel and resulting in the exclusion of the independent dealers from the market.

(1). by prohibiting the agreements and practices preventing normal competition which have been implemented by the Wirtschaftsvereinigung Eisen- und Stahlindustrie of Düsseldorf and certain iron and steel undertakings which are the principal German consumers of ferrous scrap, as well as by the commercial companies belonging to that group, all of which are known to the Commission from the documents concerning the cartel in its possession ;

(2). by imposing appropriate fines on the undertakings which, from a time dating from at least 1954 and in the intervening years, have taken part in agreements and practices which prevent competition and which are known to the Commission from the documents concerning the cartel which it has in its possession.'

II —. Conclusions of the parties

1). to adopt a decision prohibiting certain agreements, decisions and practices which prevent competition in the market in ferrous scrap and to address it to the members of the cartel for the purchase of ferrous scrap (steelworks and commercial undertakings within the group), whose names may be deduced from the attached documents concerning the cartel, as well as to its administrative bodies, the Wirtschaftsvereinigimg Eisen- und Stahlindustrie, 69, Breite Strasse, Düsseldorf, and the Deutsche Schrottverbrauchergemeinschaft GmbH, 11a, Grabenstraße, Düsseldorf;

2). to impose appropriate fines on the members and administrative bodies of this cartel, the names of which may be deduced from the abovementioned documents;

3). to take the appropriate measures to guarantee competition in the market in ferrous scrap, such as, in particular, the fixing of a minimum quota of the ferrous scrap requirements of the iron and steel undertakings, up to which amount supplies must be obtained from independent dealers (that is, those who do not form part of the group).

III —. Procedure

IV —. Submissions and arguments of the parties

1. By an application lodged at the Registry on 15 December 1969 the applicant has brought before the Court an action for failure to act based on Article 35 of the ECSC Treaty, the purpose of which is to obtain an order that the defendant take certain measures, the adoption of which the applicant had requested in its letters of 16 September and 3 October 1969, in order to ensure normal conditions of competition in the market in steel and ferrous scrap.

I —. The first and second heads of claim

2. The parties agree in accepting that by the Commission's decision of 21 January 1970 (OJ L 29, p. 30) concerning the agreement forming the subject-matter of the requests contained in the abovementioned letters the applicant obtained satisfaction as regards the first and second heads of claim in his application, with the result that it is no longer necessary to give a ruling with regard to them.

3. The Court takes note of this fact.

II —. The third head of claim

4. In the third head of claim the applicant requests the Court to order the Commission to take the appropriate measures to guarantee competition in the market in ferrous scrap, such as, in particular, the fixing of a minimum quota of the ferrous scrap requirements [of the iron and steel undertakings] up to which amount supplies must be obtained from independent dealers (that is, those who do not form part of the group).

5. The defendant contends that this head of the application is inadmissible, on the ground that no such request appeared in the letters of 16 September and 3 October 1969.

6. The letter of 16 September 1969 contained no reference to such a fixing of quotas, but merely requested the defendant to note the existence of the agreement concluded between the German iron and steel producers and to impose sanctions upon those concerned, measures which the defendant in fact adopted in its decision of 21 January 1970.

7. In its letter of 3 October 1969 the applicant requested the defendant to take adequate and appropriate measures in order to re-establish and guarantee normal conditions of competition on the German market in ferrous scrap, in particular the measures already referred to in the letter of 16 September.

8. Moreover, even if it is accepted that the applicant formally requested the adoption of additional measures, it nevertheless omitted to give any details as to their content.

9. Thus, the defendant cannot be regarded as having taken, within two consecutive months from being requested to act by the applicant, an implied decision refusing to fix minimum quotas in favour of independent ferrous scrap dealers as set out in the third head of claim.

10. This head of claim must therefore be declared inadmissible as being without purpose.

III —. Costs

11. Under the terms of Article 69 (5) of the Rules of Procedure, where a case does not proceed to judgment the costs shall be in the discretion of the Court. It must be borne in mind in favour of the applicant that it was essentially upon its initiative that the defendant, realizing that the application was justified, adopted the measures requested in these heads of claim, although it did so both after the expiry of the period of two months referred to in the third paragraph of Article 35 of the ECSC Treaty and the lodging of the action for failure to act.

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 the Treaty establishing the European Coal and Steel Community, especially Article 35 ; Having regard to the Protocol on the Statute of the Court of Justice of the ECSC; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, THE COURT hereby :

1 Declares that no ruling need be given on the first and second heads of claim in the present application;

2 Dismisses the third head of claim;

3 Orders the defendant to pay the costs of the action.

1 Language of the Case: German.

2 CMLR.