ThyssenKrupp Stainless AG (TKS) has lodged an appeal against the CFI (now General Court) judgment, dismissing its earlier appeal against the Commission’s decision to re-adopt the alloy surcharge cartel decision.

The Commission had originally fined TKS in 1998 for its own anti-competitive behaviour, and that of Thyssen Stahl GmbH, in breach of the European Coal and Steel Community (“ECSC”) Treaty. The Commission concluded that the two companies had acted together with several other steel companies to modify and apply alloy surcharge reference values in a concerted manner. On appeal in 2001, the CFI annulled the Commission’s decision relating to TKS’ liability for the infringing behaviour of Thyssen Stahl and reduced the fine imposed accordingly.

In December 2006, after sending a new statement of objections, the Commission re-adopted its earlier decision and imposed a fine of €3,168,000 on TKS for the infringements committed by Thyssen Stahl. The Commission applied the provisions of the ECSC Treaty to establish the infringement as, although the Treaty expired in 2002, the breaches had occurred whilst it was still in force. However, it applied the procedural rules in force when the new proceedings were initiated. TKS’ appeal against this decision was dismissed by the CFI, as the Commission was correct in applying the provisions of the ECSC Treaty for the past breaches but applying the current procedural framework.

On 6 November, details were published of TKS’ appeal to the ECJ. TKS submits that the CFI made numerous procedural errors in its decision to apply an expired Treaty in conjunction with current procedural rules. TKS also argues that the fine imposed was calculated incorrectly and that the legal proceedings have become time barred as a result of the expiry of the relevant limitation period.

6 November 2009