Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court

1. The subject of this case is the decision of 13 July 1983 in which the Commission of the European Communities, acting under Article 47 of the ECSC Treaty, imposed a fine of over three and a half million marks on Krupp Stahl AG. In its application, lodged on 26 August 1983, Krupp asks the Court, primarily, to declare the decision void and, in the alternative, to reduce the fine.

2. Krupp makes three submissions in the application initiating these proceedings: infringement of essential procedural requirements; infringement of the Treaty and of rules of law relating to its application; and misuse of powers in fixing the fine. Let me say first of all that, in my opinion, the first complaint is without foundation whilst the other two are partly well founded. Here, in order, are the reasons for the argument that I submit to the Court.

3. In its second submission — infringement of the Treaty and of rules of law relating to its application — the applicant makes a series of complaints which, for the sake of clarity, may be grouped under three headings: (1) errors with regard to the legal basis of the decision; (2) errors with regard to the charge of setting up an undisclosed accounting system intended to camouflage discounts; (3) errors concerning the charge of obstructing the Commission's inspection.

4. In its final submission (misuse of power in fixing the fine), the applicant complains of four defects: (1) the erroneous nature of the criterion chosen for the purpose of fixing the sanction; (2) the failure to assess or the wrongful assessment of the gravity of the infringements; (3) the failure to indicate the criterion on the basis of which the fine was apportioned among the infringements alleged; (4) the disproportionate size of the fine. In this paragraph, I shall concern myself with the first and third alleged defects, whilst the other two will be dealt with in relation to the application to reduce the fine.

5. I noted at the outset that the applicant is seeking, in the alternative, a reduction in the fine imposed on it. It puts forward two arguments in support of that application. The first one contends that the decision does not specify the seriousness of the allegations, in particular with regard to their economic consequences. The second argument complains of the disproportionate character of the fine compared to the infringements it is alleged to have committed. The Commission replies that: (a) it is not necessary to assess the economic consequences of the infringements in order to impose the fines provided for in Article 47 of the Treaty; (b) the fine is proportionate to the infringements. To the extent to which it makes auditing of accounts illusory, maintaining an undisclosed accounting system is a very serious offence. It therefore merits an exemplary reproof, which is also justified by the dissuasive effect which it would have on undertakings in the steel industry in the present period of crisis in that sector.

6. For all the aforementioned reasons, I suggest that the Court grant in part the application lodged on 26 August 1983 by Krupp Stahl AG against the Commission of the European Communities by: (a) declaring the decision of 13 July 1983 void in so far as it alleges that the applicant maintained an undisclosed accounting system for the purpose of concealing confidential discounts and that it obstructed the investigations during the first phase of the inspection; and (b) reduce the fine to half its present amount.

1 Translated from the Italian.