Mercedes gained “material advantage,” says Tribunal

Along with its verdict the International Tribunal issued some 20 pages of background to the decision, and while much of it is couched in legal language – notably its contention that Pirelli is subject to the International Sporting Code – it does give some useful background to the decision.

The tribunal admitted that in determining what many will perceive as a light sentence the four judges took into account the discussions that the team and Pirelli had with the FIA’s Charlie Whiting, which it says encouraged Mercedes to go ahead with the test.

The judges have also attempted to balance things out with rival teams, who will now have a chance to test for three days at Silverstone while Mercedes sits at home.

The Tribunal noted that the sentence was: “Based on all the circumstances of the case and: (i) with the specific objective that, insofar as it is reasonably practicable to do so, the other teams should be placed in a similar position to that in which Mercedes is in as a result of the breach of article 22 SR and articles 1 and 151 ISC and Pirelli of articles 1 and 151 ISC ; (ii) in recognition of the fact that the testing would not have taken place but for the bona fide, but misconceived “qualified approval” which was given on behalf of the FIA.”

The Tribunal made it clear that despite claims that it was only a Pirelli test, Mercedes had benefited. Crucially it noted: “It is inconceivable that Mercedes did not obtain a material advantage from three days of testing even if only as a result of the running of its car(s) – wholly irrespective of any matter relating to tyres.

“Further, Ross Brawn candidly accepted in his evidence that it was inevitable that some advantage had been obtained, although he regarded that advantage as having been minimal.”

Regarding Whiting’s role, it said: “The actions taken on behalf of FIA by Charlie Whiting (having taken advice from the legal department of FIA) were taken in good faith and with the intention of assisting the parties and consistent with sporting fairness.”

Meanwhile the FIA gave its own response in a statement: “The FIA wishes that lessons are learnt from this case and from the decision handed down. To this end, the FIA will make sure, in association with all F1 teams, that its control of the testings [sic] is strengthened.”

The conclusions of the tribunal are summed up as follows:

 (1) The track testing, which is the subject of these proceedings, was not carried out by Pirelli and/or Mercedes with the intention that Mercedes should obtain any unfair sporting advantage.

(2) Neither Pirelli nor Mercedes acted in bad faith at any material time.

 (3) Both Pirelli and Mercedes disclosed to FIA at least the essence of what they intended to do in relation to the test and attempted to obtain permission for it; and Mercedes had no reason to believe that approval had not been given.

(4) The actions taken on behalf of FIA by Charlie Whiting (having taken advice from the legal department of FIA) were taken in good faith and with the intention of assisting the parties and consistent with sporting fairness.

 Notwithstanding the above findings:

(i) by running its car(s) in the course of the testing, Mercedes acted in breach of Article 22.4 h) SR;

(ii) insofar as FIA expressed its qualified approval for the testing to be carried out, that approval could not, and did not, vary the express prohibition stipulated by Article 22 SR and neither Mercedes nor Pirelli took adequate steps to ensure that the qualification was satisfied. In this regard the Tribunal takes particular note of the fact that it was, very properly, not submitted on behalf of Pirelli, nor was there any evidence that, the assurance which it was not disputed Mr Paul Hembery, Pirelli Motorsport Director, had given to Charlie Whiting (as set out in paragraph 5 above) had in fact been acted on at any material time;

(iii) the testing would, however, not have been carried out by either Mercedes or Pirelli if that qualified approval had not been expressed by the representatives of the FIA in the way in which it is admitted by FIA it was;

(iv) The Tribunal is unable to express any opinion as to whether or not then testing carried out by Ferrari in 2012 and 2013 was properly authorised but, it would appear to be equally unsatisfactory that this consent was also given by Charlie Whiting, the Tribunal has no evidence before it which indicates that his opinion in that case had in fact been wrong.

(v) Mercedes did obtain some material advantage (even if only by way of confirmation of what had not gone wrong) as a result of the testing, which, at least potentially, gave it an unfair sporting advantage, to the knowledge and with the intention of Pirelli. In the light of the data which Pirelli did in fact pass to Mercedes by way of the confidential email referred to under paragraph 37.8 above, it is plain beyond sensible argument that Pirelli had intended confidentially to pass some data to Mercedes, which Pirelli expressly regarded as being of high importance even if, as we accept, it was in fact of limited value to Mercedes because it was unaware of the tyre(s) to which the report related.

 (vi) No other team was aware of the fact that such advantage might be, or had been, obtained, notwithstanding the assurance which had been given by Paul Hembery to Charlie Whiting, as set out in paragraph 5 above; and the Tribunal notes that, when giving that assurance, Paul Hembery had not indicated to Charlie Whiting that the notification which Pirelli had already given to all teams in 2012 could satisfy the assurance which was being sought.

 (vii) Both Mercedes and Pirelli, accordingly, did act in breach of articles 1 and 151 ISC.