Mercedes and Pirelli appeared today before the first ever sitting of the FIA International Tribunal, under chair of judges Edwin Glasgow QC, an experienced lawyer in FIA hearings.
Glasgow said the judgement will come ‘by tomorrow.’
The team was there to answer a charge that it had breached the F1 Sporting Regulations by testing a current car during the season. Tyre supplier Pirelli was also called to explain why it did not open the test up to other competitors.
Red Bull team boss Christian Horner surprised everyone by making an appearance in person as an observer, while several other teams sent legal observers.
It was the FIA’s turn to speak first, with Mercedes following and then Pirelli. In addition to lawyers, Ross Brawn represented Mercedes, Paul Hembery Pirelli and the FIA’s Charlie Whiting was also there.
The FIA case
The FIA stated its case, which was that Mercedes had not been given permission to test with a 2013 car, as had been claimed.
The FIA lawyer, Mark Howard QC argued that the only the World Motor Sport Council had the power to authorise something which goes against the rules.
Mercedes asked the FIA’s Charlie Whiting via telephone in on May 2 if they could use a 2013 car for a Pirelli test and he consulted with FIA in house lawyer Sebastian Bernard, who said that it was possible provided that Pirelli invited all the other teams to test and to show that it had done so.
“There was no attempt whatsoever by Mercedes to involve the other teams in order to ensure that no perception of an advantage was obtained,” the FIA’s lawyer Mark Howard said.
He added that Whiting told Mercedes’ Ross Brawn of the FIA’s stance to the principle of using a 2013 car in a Pirelli test, but also indicated him it was not a binding commitment from the FIA. Only the World Council had that power, he underlined.
“Whether or not Whiting consented, it is irrelevant, because testing in relation to Article 22 is a breach, unless it [a rule change] is granted by the World Motor Sport Council,” he said.
“This communication (Whiting’s message to Brawn) was not an agreement by the FIA – it was nothing more than Whiting and Bernard’s interpretation of [article] 22.”
The FIA also argued that Mercedes’ enquiries were vague rather than specific and that they were wrong not to follow up with Whiting with an explanation of the test they planned to carry out.
Howard claimed that Mercedes must have derived benefit from the test, “It is not beyond the bounds of possibility that some defect would have become apparent in the three days track testing, and it cannot seriously be suggested that Mercedes would not seek to remedy that defect,” he said.
Ross Brawn spoke for Mercedes. The thrust of his argument was that the test was not conducted by Mercedes, it was conducted by Pirelli.
Mercedes’ QC Paul Harris said, “This was not a test undertaken by Mercedes. They are critical words in text of (Sporting Regulation) Article 22 – ‘undertaken by’. The Pirelli test was not a test ‘undertaken by’ Mercedes. It is irrefutable it is a test ‘undertaken by’ Pirelli.”
Harris also went on the offensive, trying to argue that if Mercedes was in the wrong, then the Ferrari test which took place in Barcelona a few weeks before Mercedes, using a 2011 car with Pedro de la Rosa at the wheel, was also in breach of the rules.
“It does not follow that if Ferrari runs on track a 2011 car, that that 2011 car does not conform substantially to either the 2012 or 2013 regulations. There was only 0.5s difference between the 2011 cars and 2013 cars, showing the changes between 2011 and 2013 are minuscule in terms of performance.”
Harris claimed that the test, and another test apparently conducted last season with a two year old car by Felipe Massa, were subject to a lack of transparency and that there had been an exchange of information after that test between Mr Hamashima, Ferrari’s tyre specialist and Pirelli.
Under cross examination, after the initial submissions from all three partied had been heard, Brawn argued that Mercedes had derived no competitive benefit over its rivals from the opportunity to test tyres for three days, “I don’t see how,” he said. “We didn’t know what the tyres were; we didn’t know what the detail objectives were of what Pirelli were doing. We always work on the principle that no information is better than bad information. I don’t see how we could have used any data from that test.”
However when cross examined further he admitted that the team must have learned something from an opportunity to run its current car for three days, “I think that is unavoidable, and was a consideration taken into account when we had permission from the FIA to do the test. But it does need to be kept in proportion.”
Mercedes also argued that the way F1 works, the opinion of Whiting is biding on all technical queries, such as whether a new innovation can be used on a car, so why should it be any different for sporting matters?
Mercedes did apologise for the impression of secrecy created by the drivers wearing black helmets, disguising their identity, “We regret now the decision of our drivers to wear black helmets and we apologise, ” said Harris. “We had our reasons – it was about the lack of bodyguard and security personnel. We do acknowledge that this part of the test aroused suspicions and it is regrettable.”
Pirelli was unhappy about being drawn as a co-respondent into this Tribunal, as it is not a competitor and felt it was not subject to the disciplinary process.
The FIA’s reason for bringing them in was the lack of transparency over the test and lack of opportunity given to the other teams,
“None of the other 2013 competitors were invited to participate in the test or observe. None of the other 2013 competitors was aware that the test was to take place. Without the knowledge, consent and participation of other competitors, Mercedes and Pirelli may have engaged in activity that was prejudicial to the competition.”
* At the end of the hearing Mercedes’ lawyer asked for leniency in the event that the team is found to be in breach of the rules. He suggested that a suitable punishment would be for Mercedes to miss the three day young drivers test at Silverstone next month.
History shows that advising courts how to punish does not generally lead them to follow the suggestion. It also indicates that Mercedes feel they may have come out on the wrong side of this one.
If that is the case, expect to see pressure on Ross Brawn’s position from both within Mercedes and the sport as a whole.