Nico Rosberg, Mercedes, Circuit de Catalunya, 2013

Will Mercedes escape sanction at FIA Tribunal?

2013 F1 season

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Nico Rosberg, Mercedes, Circuit de Catalunya, 2013The FIA International Tribunal will convene in two days’ time to decide whether Mercedes broke the rules on testing.

The team ran one of its W04s for three days at the Circuit de Catalunya between the Spanish and Monaco Grands Prix.

They face potentially serious sanctions if they are found to have transgressed.

Did Mercedes break the rules?

Here are the facts of the matter as confirmed so far.

The test

The FIA confirmed Mercedes “conducted with Pirelli a three day tyre testing using a 2013 car on [the] 15th, 16th and 17th [of] May in Barcelona”. Mercedes said Lewis Hamilton and Nico Rosberg did the driving.

The details of the test, which began three days after the Spanish Grand Prix, did not come to light until May 25th during the Monaco Grand Prix weekend. The following morning Red Bull and Ferrari lodged a protest with the stewards over the test, which was later referred to the FIA’s International Tribunal. The stewards gave the following details of the protest:

The stewards of the Monaco Grand Prix received protests from Infinity Red Bull Racing and Scuderia Ferrari concerning an alleged breach of article 22.4h (track and wind tunnel testing) of the FIA Formula One Sporting Regulations by Mercedes AMG Petronas F1 Team.

The stewards summoned representatives of the protesting teams, Mercedes AMG Petronas F1 Team and Pirelli.

After hearing and collecting information the stewards will write a report to the FIA who may bring the matter before the International Tribunal.
FIA stewards’ document number 49, 2013 Monaco Grand Prix

The rules

Mercedes, Circuit de Catalunya, Barcelona, 2013Article 22.4h is one of several clauses which define the circumstances under which track testing may take place. It forbids testing “between the start of a ten day period which precedes the start of the first event of the championship and 31 December of the same year”.

Obviously the dates of Mercedes test fall within the time when testing is not permitted. And the test did not meet any of the exceptions to the rule defined in article 22.4h:

(i) One three day young driver training test carried out on a date and site approved by the FIA following consultation with all teams. […]

ii) Four one day aerodynamic tests carried out on FIA approved straight line or constant radius sites between 1 February of the current year and the start of the last event of the championship. Any of these days may be substituted for four hours of wind-on full scale wind tunnel testing to be carried out in a single twenty four hour period.

iii) If a team declares that one of its current race drivers is to be substituted by a driver who has not participated in an F1 race in the two previous calendar years, one day of track testing will be permitted between the start of a ten day period which precedes the start of the second event and the last event of the championship.
FIA Sporting Regulations

Ferrari’s exoneration

Fernando Alonso, Ferrari, Barcelona, 2011The FIA initially expanded their investigation to include Ferrari. It emerged they had also conducted a test for Pirelli at the same circuit on the 23rd and 24th of April, between the Bahrain and Spanish Grands Prix, using a 150??? Italia chassis which last raced in 2011.

However the case against Ferrari was dropped when the FIA ruled that “for this purpose a 2011 car is not deemed to contravene the applicable FIA rules”. Article 22.1 of the Sporting Regulations forbids testing “using cars which conform substantially with the current Formula One Technical Regulations”.

How the case will be heard

The International Tribunal was introduced as part of a revised FIA judicial process at the beginning of the 2011 season. It is where stewards refer cases that are not resolved during race weekends.

Evidence will be presented to the tribunal by witnesses, knowledgeable parties, experts and third parties. Interested parties, such as rival teams, may also make representations to the tribunal. Once that is done the tribunal will deliberate in secret without the FIA president.

The judging panel will be composed of three members of the tribunal. These will be selected by the tribunal president, Edwin Glasgow, and none of them may be “of the same nationality as one of the main parties of the case”. Brief biographies of the 12 members of the tribunal can be found on the FIA’s website (PDF).

Prosecution and defence

The Tribunal will no doubt bring new facts to light. However several of the major points of contention have already been commented on in public by those involved in the case.

Use of a current car

Lewis Hamilton, Mercedes, Circuit de Catalunya, 2013Ferrari’s exoneration is significant because it shows one of the issues at stake is how much knowledge Mercedes were able to gain about their current car.

Significantly Pirelli, who requested that the test take place, stated they did not ask Mercedes to bring their 2013 machine:

Pirelli did not ask in any way that a 2013 car be used: not of Mercedes nor FIA nor the teams which, during the year, were offered the opportunity of participating in tests for the development of tyres for 2014.
Pirelli statement


There has been much speculation about what evidence Mercedes might have that may indicate they were given permission by an FIA representative to participate in the test and do so using the W04. It was brought up during the Friday press conference at the Canadian Grand Prix:

One of the rumours that we have heard going round is that you?re in position of an e-mail from Charlie Whiting confirming that you did have permission to do the test. Could you confirm whether or not that e-mail exists?
Kate Walker

The email, I don?t want to comment on any matters of that sort that relate to what?s going to come through in the Tribunal.
Ross Brawn

But as other teams have learned to their cost, a nod of consent from Whiting is not a guarantee they have complied with the rules.

During the 2008 Belgian Grand Prix Lewis Hamilton was forced off the track by Kimi Raikkonen while the pair were disputing the lead of the race. Hamilton rejoined the track ahead of Raikkonen, ceded the position back to him as the rules require, then overtook him at the next corner. Hamilton’s McLaren team sought Whiting’s opinion whether the move was legal and were told it was. But the stewards disagreed and confiscated Hamilton’s subsequent victory.

However Mercedes may believe the fact F1’s official tyre supplier was involved in the test counts in their favour:

Obviously we felt we were in a position to be able to do the Pirelli test ?ǣ it was a Pirelli test, it?s very important to note that ?ǣ and so the Tribunal will be the time at which all the information will become available.
Ross Brawn

Gaining an advantage

Start, 2013 Monaco Grand Prix, Monte-Carlo,Mercedes covered around 1,000km during the three-day test. To put that into perspective, at the end of pre-season testing the team which had covered the most ground, Sauber, had logged 5,306km.

This test allowed Mercedes to increase the ground they had covered with their 2013 car in testing by nearly 20%, excluding any straight-line aerodynamic tests.

They will be at pains to stress that no advantage was gained from the extra running. Pirelli gave the following information about the test:

This test, as always, carried out with a single compound never used in a championship, regarded structures not in use in the current season and not destined to be used later during the 2013 season.

The tyre tests were conducted “in the dark”, which means that the teams had no information on which specifications were being tested or about the goal of the testing; nor did they receive any type of information afterwards.
Pirelli statement

The first sentence suggests Mercedes would not have gained knowledge about this year’s tyres. But it doesn’t rule out the possibility Mercedes gained knowledge or influenced the development direction of next year’s tyres, assuming Pirelli extends its F1 contract beyond this year.

That claim was seemingly contradicted by comments made by Nico Rosberg during the Canadian Grand Prix weekend which Mercedes later sought to play down:

Yes, for sure, yeah of course. Definitely I was aware of what the ideas were and what they were testing because I need to know that to try and be able to pinpoint for them best what?s going on and what directions are likely to be best for them.
Nico Rosberg

There is also the possibility Mercedes were able to advance their understanding of their 2013 car in other areas. Former McLaren mechanic Marc Priestley explained the potential benefits of such a test to F1 Fanatic earlier this month.

Not surprisingly, Mercedes’ rivals firmly believe the test was a valuable opportunity:

Whenever you run the car, when you?re not allowed to test, when you have limited mileage, when the rules are written as they are, when you run a current car of course, for the way that Formula One is, with the way that the amount of technology and with the amount of data analysis there is, you?re always learning. Whether it be reliability, whether it be endurance, whether it be performance. So, of course… even if you?re testing a component for a supplier, you?re learning.

I think Formula One has moved an awfully long way over the last few years to ensure fairness and equality to all of the entrants. I think that if a team does carry out 1000km of additional testing with a current car, you?re going to learn something.
Christian Horner

Note that the FIA International Sporting Code states (in article 58) that not having gained an advantage will not be accepted as a defence if a car is found not to comply with the Technical Regulations. However Mercedes are being investigated for a potential breach of the Sporting Regulations, so that does not apply.


Nico Rosberg, Mercedes, Circuit de Catalunya, 2013Neither Mercedes nor Pirelli volunteered information about the test until the rest of the paddock became aware of it – apparently following a meeting between the GPDA and the FIA.

However it is common for both the sport’s official tyre supplier and the teams to keep quiet about their testing plans. Pirelli do not advertise when their tyre tests with their own car are about to take place and top teams are secretive about the timing of their one-day aerodynamic tests during the season.

Brawn has repeatedly attacked the characterisation of the test as ‘secret’

There has been an unfortunate branding of the ‘secret’ test. It was a private test. It wasn?t a secret test. I think anyone who believes you can got to Barcelona and do three days of testing, or 1000km of testing, and not have anyone become aware of it is naive.

It was a private test, not a secret test and sporting integrity is very, very important to us. Very important to Mercedes. And as I say I think when the facts become apparent then people can make a better judgment of the situation.
Ross Brawn

One might argue that had more of the facts been made apparent at an earlier stage Mercedes would not find themselves refuting claims of a ‘secret’ test. That is the view of their rivals:

I think the lack of transparency is disappointing. That you get to learn these things second hand. I think it is important that there is transparency, of course.

If a supplier has issues then it needs to obviously deal with them but when all entrants are supposedly equal, it?s only right and proper that information is made transparently clear.
Christian Horner

Whether the test was kept secret from rival teams is less important than whether the test was kept secret from the FIA. This brings us back to the question of whether Mercedes have a ‘smoking gun’ proof that someone gave them permission to go testing.

The statement issued by the FIA after the matter was referred to the stewards indicates they did not receive final confirmation the test was going ahead:

Pirelli and Mercedes AMG were advised by the FIA that such a development test could be possible if carried out by Pirelli, as opposed to the team that would provide the car and driver, and that such tests would be conditional upon every team being given the same opportunity to test in order to ensure full sporting equity.

Following this information, the FIA received no further information about a possible test from Pirelli or Mercedes AMG. Furthermore, the FIA received no confirmation that all teams had been given an opportunity to take part in the test.
FIA statement

Potential outcomes

Lewis Hamilton, Mercedes, Circuit de Catalunya, Barcelona, 2013A simple majority of the tribunal’s judging panel will decide the verdict. The addressee of their decision (i.e. Mercedes) and the FIA, under the authority of the president, may appeal against it. This would take the matter to the FIA’s International Court of Appeal.

If Mercedes are found guilty the tribunal may impose the penalties defined by article 153 of the International Sporting Code: a reprimand, fines, obligation to perform work of public service, a time penalty, exclusion, suspension, disqualification or confiscation of championship points.

The FIA has previously punished teamd while exempting their drivers from a penalty, as with McLaren’s championship exclusion in 2007. As both Mercedes drivers participated in the test and stood to benefit from it, it is hard to see how the FIA could make a case for doing the same here.

What the key players are saying

I think we wouldn?t have done the Pirelli test unless we believed we could do the Pirelli test and I think when we get to the Tribunal, you?ll have your answers.
Ross Brawn

We believe that it is the responsibility of the entrant to comply with the regulations, so when it came to light that a test with a current car had taken place, our interpretation of the regulations is that that was in clear breach of them and therefore we raised a protest prior to the race for it to be dealt with as an issues by the FIA. It?s really an issue between the team and the FIA.

Obviously Pirelli have asked several teams to test, ourselves included but we have declined to do so because we felt that it wasn?t in line with the regulations, certainly with a current car. That?s the situation. It?s gone to the Tribunal and we trust in the FIA to make the appropriate decisions regarding it.

I think the important thing is that there needs to be absolute clarity moving forward in terms of what you can do and what you can?t do going forward, you know, what is testing and what isn?t testing. I think that?s more crucial than anything, it is to be fully resolved.
Christian Horner

Let?s hope Formula One can maintain its professionalism and we have faith that those who attempt to circumvent the regulations are pursued and prosecuted, or rather more prosecuted than pursued.
Luca di Montezemolo

Over to you

What do you think will be the outcome of Thursday’s Tribunal? Will Mercedes escape punishment?

Have your say in the comments.

Mercedes and Ferrari Pirelli tyre test row

Browse all Mercedes and Ferrari Pirelli tyre test row articles

Images ?? Daimler/Hoch Zwei, Ferrari/Ercole Colombo

Author information

Keith Collantine
Lifelong motor sport fan Keith set up RaceFans in 2005 - when it was originally called F1 Fanatic. Having previously worked as a motoring...

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147 comments on “Will Mercedes escape sanction at FIA Tribunal?”

  1. First about gaining information about the tyres.
    I guess Ferrari could have gained more information because they tested with a very known car, or am I mistaken here?

    I hope they don’t punish Mercedes to harsh as this might have a negative effect on their future.
    But I might see them lose some constructors points and having to do some positive work for the fia.
    As long as they don’t ban them for a race or two, that would be fine.

    But I must say Brawn looks confident, he must indeed hold some good emails ;)

    1. I guess Ferrari could have gained more information because they tested with a very known car, or am I mistaken here?

      The issue is not gaining an advantage or not , the issue is gaining an unfair advantage which what Mercedes did by using a 2013 spec car, all the teams can test with 2 years old spec car

      But I must say Brawn looks confident, he must indeed hold some good emails

      Even so that would not prevent Mercedes from getting a punishment & the other member of the FIA -who seems to be Charlie Whiting- that didn’t act with transparency should be punished too,

      1. JimmyTheIllustratedBlindSolidSilverBeachStackapopolis III
        18th June 2013, 18:27

        Transparancy is apparently no issue at all mr ferrari secret test tifoso.

        1. I understand your frustration , i know that some people lose their minds when it comes to Ferrari but never mind
          The test held by Ferrari after the Bahrain GP in Barcelona was 100% within the rules & if you have an objection about it then that’s your problem, the test was not organized by the Scuderia Ferrari team but by the Ferrari Corse Clienti with a 2011 spec car,

          all mr ferrari secret test tifoso.

          Pirelli them selves keep their test secret even those made by their test drivers how many times did we heard tyre tests made by Pirelli ??
          To be honest Ferrari has gained an advantage from this test obviously because the Ferrari Corse Clienti doesn’t keep secret data from the Ferrari F1 team & Pedro De larosa is not a Ferrari customer & the current level of downforce are very close to the ones in 2011, but the problem here is that Ferrari has gained an advantage from the test & stayed at the same time within the rules which what Mercedes didn’t

          1. JimmyTheIllustratedBlindSolidSilverBeachStackapopolis III
            18th June 2013, 21:34

            I don’t have a problem with it or ferrari at all, I was just pointing out that the secrecy of the test is not important since ferraris was equally secret and they have not been called to the tribunal. The fia them selves even said the issue is if the test was permitted and the car used not how many people know about it. However I understand as a ferrari fan it’s natural to be paranoid that anyone who replys to your comment is likely to be overtly with you or against you.

          2. no jimmy your just incorrect. Ferrari didnt break any rules so thats why there is no reason to bring them into the subject.

            Ferrari team didnt even run the car. Pirelli have been using an old lotus too, do you want to call them in as well.

      2. If your first point is true why did Ferrari conduct its own test in abject secrecy and why did it require subsequent investigation? Why is every team not pounding around a test track at all times with a 2011 car running 2013 tires?

        1. If your first point is true why did Ferrari conduct its own test in abject secrecy

          That’s not only Ferrari, that’s also Pirelli , how many times did you heard details about Pirelli’s tests ????
          Like i said To be honest Ferrari has gained an advantage from this test obviously because the Ferrari Corse Clienti doesn’t keep secret data from the Ferrari F1 team & Pedro De larosa is not a Ferrari customer & the current level of downforce are very close to the ones in 2011, but the problem here is that Ferrari has gained an advantage from the test & stayed at the same time within the rules which what Mercedes didn’t

          Why is every team not pounding around a test track at all times with a 2011 car running 2013 tires?

          Ask Pirelli not Ferrari because it is responsible for giving the team that priviliege

      3. The issue is not gaining an unfair advantage, or gaining an advantage of any type. The issue is the violation of a specific regulation. The FIA Tribunal may decide that the violation is worthy of a penalty regardless of any advantage gained.

        I find it very interesting that Ferrari was exonerated

        the case against Ferrari was dropped when the FIA ruled that “for this purpose a 2011 car is not deemed to contravene the applicable FIA rules”. Article 22.1 of the Sporting Regulations forbids testing “using cars which conform substantially with the current Formula One Technical Regulations”.

        Surely a 2011 car ‘conforms substantially’ with the current technical regulations?

      4. The Ferrai test would have gained them an unfair advantage as they got to try new tyres and the rest didn’t. I know it was within the rules but it clears up that line of argument. Mercedes tested tyres on a car that will never race with them as did Ferrari.

        The difference is whether Mercedes gained any data for thier current car. If they did, it’s an unfair advantage but if they didn’t record any data, it isn’t.

        If Pirelli ran the test and kept all data and Mercedes simply supplied a car and 2 drivers, they gained no more of an advantage than Ferrari did.

        Obviously, the main difference is that Ferrari didn’t explicitly break any rules where as it appears Mercedes did.

        It’s a tough call but I would assume at worst, they’ll take Mercedes constructors points away. Would be very harsh but surely that’s as bad as it will get.

        1. @petebaldwin

          It seems you have a busy agenda against the red.

          Ferrari didn’t gain an unfair advantage
          Maybe is Pirelli that distributed an unfair advantage…but not Ferrari… they used a 2011 car and not their championship driver…Ferrari has respected the rules… Mercedes not.

          No team protested the Ferrari test, and also no team has confirmed or denied that it has been offering a Pirelli test with 2011 car.

          You could be certain that if Ferrari would have gained an unfair advantage, Red Bull would have protested all day long…but they didn’t.
          You could be certain that if Ferrari would have gained an unfair advantage, tomorrow they would have been in front of the tribunal…but they aren’t.
          You could be certain that if Ferrari would have gained an unfair advantage, Mercedes would have screaming all day long :”why only us”…but they didn’t.

          I can continue with a bigger list…

          Here is a good article of an ex-mechanic in F1 that explains the differences between Ferrari and Mercedes test

          1. @nomore I think you have misunderstood my point. I am not saying that Ferrari did anything wrong and I also think that it’s likely that Mercedes did. My point was that people are saying “Mercedes gained an advantage” and that it’s forgotten that Ferrari also did. Are all the other teams going to get 1000km running on next years tyres as well?

            I don’t have an agenda against Ferrari, I have an issue with certain teams getting to try new tyres and others not. Why are the tests hidden and secret from the other teams and the public?

          2. @nomoreYou could be certain that if Ferrari would have gained an unfair advantage, Mercedes would have screaming all day long :”why only us”…but they didn’t.

            It appears they are….

          3. @petebaldwin

            My point was that people are saying “Mercedes gained an advantage” and that it’s forgotten that Ferrari also did

            Ferrari did but did it in a legal way.
            Mercedes in a illegal way.
            There is a big difference

            It appears they are….

            Yes they are it’s the last line of defense…if im going to be punished let’s grab someone else with me…why not?…it work like this for all the accusation part… is Human nature

            bar Mercedes (who is involved) who is protesting Ferrari?

          4. @nomore – the line appears to be very blurry though doesn’t it… I don’t think anyone is doubting that what Mercedes did broke the regs. There are obviously other issues surrounding this but what they did went against the regs.

            If the rules state you can’t use a car which complies largely to the current regulations, you can see how people would question the legality of Ferrari’s test as well.

            Also, considering how so far, Ferrari have carried out 2 tests with Pirelli, it has to be questioned why other teams have carried out none.

          5. @petebaldwin

            If the rules state you can’t use a car which complies largely to the current regulations, you can see how people would question the legality of Ferrari’s test as well.

            FIA gave their verdict in this case, which was Case closed. For FIA (and the rules) the Ferrari test was ok…
            However if Mercedes thinks that Ferrari has also broke the rules then they can open a case…but that’s another question…and if they do it’s almost 99.99% they will lose…but they can try

            Also, considering how so far, Ferrari have carried out 2 tests with Pirelli, it has to be questioned why other teams have carried out none.

            You should ask Pirelli for this not Ferrari…maybe are only a few teams (or maybe only Ferrari) that are really interested to make a test with a 2 year old car…i bear you in mind that it cost a Ferrari, Red Bull, Mercedes and Mclaren i don’t see any other team that will put a lot money in testing a 2 year old car…thats why i said No one is protestin Ferrari test bar Mercedes

    2. Ross knows his way around an FIA tribunal. I can’t say I remember him coming out of one with a bad outcome from his significant run-ins with the FIA… Maybe someone can think of one he’s lost.

      1994 Benetton: Traction Control
      1999 Ferrari: ‘Manufacturing Tolerance’ (After Malaysia)
      2003 Ferrari: Michelin tyres
      2009 BrawnGP: Double Diffuser
      2013 Mercedes: Pirelli Test…. ?

      1. I agree. Brawn is Teflon when it comes to the FIA and while I feel Mercedes violated the rules, I can’t help but think that Brawn is going to pull something out of his pocket that makes it all go away. Ross Brawn has always seemed to be one step ahead when it comes to moving around the rules and I can’t help but think of the Ferrari barge boards when they showed if they were measured in a different direction they where within specs. Or Schumacher crossing the finish line in the pits.

    3. JimmyTheIllustratedBlindSolidSilverBeachStackapopolis III
      18th June 2013, 18:25

      Way to be unbiased it’s hard to know exactly what your feelings are keith “will mercedes escape sanction” So you must know they have done something wrong right? If so you might want to get on the phone to the FIA because their prosecution needs a leg to stand on.

    4. If Mercedes are found to have gained an unfair advantage the only logical punishment would be that they are stripped of all of their constructors points scored in the Grand Prix post-Barcelona.

      This would mean Mercedes finishing the season with 72 points, a likely sixth in the constructors championship.

      It would be quite exciting to see if Force India, McLaren, Toro Rosso could reach that points target before the end of the season. Force India to finish 4th in the constructors table??

    5. ferrari, ferrari, ferrari.. Would you like the worlds smallest violin?

  2. Great read. All the important points have been covered very thoroughly.
    It doesn’t look likely that Mercedes will escape sanction. I think Mercedes will be handed a suspended ban and a fine. And Ross Brawn will get the sack.
    Personally I feel Mercedes deserve a multiple race ban, and a reprimand. And Ross Brawn to get the sack.

    1. Personally I feel Mercedes deserve a multiple race ban, and a reprimand. And Ross Brawn to get the sack.

      I disagree completely. What Mercedes did might have bene unethical, but it makes no sense unless they had good reason to believe that it was legal under the letter of the law.

      1. @prisoner-monkeys funnily enough, Ross Brawn believed that traction control was legal in 1994.

      2. Under the letter of the law, it’s clearly illegal. The only way out of it is if Brawn is holding some get out of jail free card. But I don’t see a situation where he’ll have an excuse that will wash. Even given approval by ‘someone’ doesn’t necessarily mean that person has authority to give it. And does that approval say they can test with the current car and drivers. I doubt it.

        They’re guilty under the letter of law, and I’m looking forward to seeing either the reprimand or the way they wriggle out of it.

    2. You couldn’t me more right on the punishment its an absolute disgrace for Mercedes.
      Also Keith didn’t cover the fact that since the test Mercedes have stopped dropping like a stone from their grid position in the race.

      1. I think that risks reading too much into the result of two races at tracks where tyre degradation is far less of a factor than it is at Bahrain or Catalunya. And oversimplifying the nature of Mercedes’ tyre problems – they didn’t ‘drop like a stone’ in Malaysia after all.

      2. What about all the times the didn’t drop back before the test then? They have done well recently largely because they have been at tracks where they were predicted to do well.

        1. Beat me to it Matt and Keith ! Takes me too long to type on this phone.

      3. They didn’t drop like a stone in Australia, China or Malaysia. It was only Spain and Bahrain where they dropped back, but Hamilton actually did ok on the tyres in Bahrain, so it seems Spain could be more a one off. I know they have not been good on tyres but there’s to say they have now solved their problem is somewhat laughable. They had similar results two races before and two races after the test, which if anything shows they actually didn’t gain much at all. Sure they won Monaco but again that’s more a one off. Lets wait and see all the facts before we say what should and shouldn’t be done.

    3. Was it a Mercedes or a Pirrelli test ?

    4. To me it is completely irrelevant how well they have transmitted all the data they’ll have inevitably gathered into immediate performance gains: what matters is if they gathered meaningful data in the first place. If so, that’s an unfair handicap and unless Brawn has an ace up his sleeve I can’t see them getting let off the hook.

      1. @vettel1 Exactly!! It’s like I’m trying to cheat in a test, but am unsuccessful to correctly copy something from my neighbour’s paper. My teacher catches me looking into his paper and accuses me of cheating. I say, “No, you can’t punish me, I didn’t gain any significant advantage“…

        1. @wsrgo great analogy! The significant part of the whole debate for me is this:

          Pirelli did not ask in any way that a 2013 car be used: not of Mercedes nor FIA nor the teams which, during the year, were offered the opportunity of participating in tests for the development of tyres for 2014.
          Pirelli statement

          If the test was not requested to be conducted using a current car yet they did anyway, I can’t see a way in which the punishment could be avoided. Ferrari did no wrong because it wasn’t conducted using race drivers, the race team or the current race car. Mercedes have done all of those things, which is significant in my view.

          1. the statement by Pirelli you refer has to be opposed to the Horner’s statement:

            Obviously Pirelli have asked several teams to test, ourselves included but we have declined to do so because we felt that it wasn’t in line with the regulations, certainly with a current car. That’s the situation. It’s gone to the Tribunal and we trust in the FIA to make the appropriate decisions regarding it.

            It can be quite contradictory… Who will fall with Mercedes?

          2. @spoutnik how does that contradict anything in the Pirelli statement I have referred to? Their decision to use the 2013 car is actually in direct agreement with that statement from Horner!

          3. @vettel1 it was just about whether Pirelli asked for 2013 cars or not. Ferrari said that they were not asked about that, RB seems to say yes, who knows?

          4. @spoutnik ah I see, yea that’s slightly strange: maybe Horner was just making that comment in hindsight with the knowledge Mercedes used a current car?

      2. @vettel1 – When Red Bull used a version of a blown diffuser last year, you defended the decision not to take action against them as there was nothing in the rules prohibiting their solution.

        Now that Mercedes have done this test and claimed they have evidence that it was permitted, you’re still demanding a penalty, even if they have slipped through a loophole the way Red Bull did last year.

        So, which one is it going to be?

        1. @prisoner-monkeys where have I demanded a penalty? That’s rather inflammatory considering all I’ve said is I can’t spot a loophole here – the rule looks pretty clear to me.

          The difference for me though is this is a potential breach of the sporting regulations, Red Bull were playing dare with the technical regulations. I didn’t criticise Mercedes’ DDRS system last year, so this isn’t a case of hypocrisy. I think it’s a case of the other teams being handicapped because they have lost out on doing this test.

          1. @vettel1 – if it’s a case of other teams being handicapped because they lost out on doing the test, surely that’s also the case for the teams not being able to run a 1000km test with a 2011 car.

            Is there any proof that Ferrari didn’t bolt on any 2013 parts? I’m not saying Mercedes wouldn’t have gained a bigger advantage using the 2013 car but if it’s simply a case of teams being handed an advantage, Ferrari were too.

    5. JimmyTheIllustratedBlindSolidSilverBeachStackapopolis III
      18th June 2013, 22:13

      Hey yall im looking for some crazy heard you guys are the people to see.

      1. I think we’re all perfectly sane thank you, hence why we are debating logically and you’re just spouting off tasteless nonsense.

  3. The worst outcome could be Mecerdes and Pirelli both pulling out of the sport.

    1. Not after their investment in the new engines, surely.

    2. Lucas Wilson (@full-throttle-f1)
      18th June 2013, 13:04


      lol that would be fun if they both pulled out immediately.


      “It has been comfirmed that Mercedes have pulled out of the sport with instant affect. Honda were asked if they would buy the team but said they wouldn’t because they couldn’t get ‘Super Aguri to design a car with a basically illegal device”. Ross Brawn was asked if he would buy the team but his reply was hard to hear through a prison cell.

      Jenson was hoping that this turn of events would swing in his favour, he said “with less cars on the grid it should be easier for us to finally score points”, but in another move, Pirelli tyres said that they were pulling out of the sport too, immediately. This meant at the upcoming Britsh GP, drivers had to push their cars instead of driving them. Jenson had this to say “At least I didn’t have to control my tyres, so I could push (literally) really hard, the McLaren handled much better than when it had tyres”. When Pirellis motorsport director was asked about this ridiculous move by the tyre maker, he simply said “Well, Lewis is looking fast, so I think he has a good chance of being on pole”

      More on this story tomorrow.

      1. @full-throttle-f1 made me laugh. Lewis always had a try in Canada some years ago

      2. I do like the idea of the drivers pushing hard for the whole race.

      3. @full-throttle-f1 What are you talking about? Why would Brawn go to prison?

    3. Yes, and its funny how people are believing that this doomsday card will somehow convince the Tribunal to go easy on the offenders.

      1. I think you underestimate how damaging them pulling out of the sport would be.

        1. @bertie No, I don’t. But I don’t fancy this sort of blackmail will go down well with anyone. Then Ferrari could try anything and everything, but nobody can touch them because they’re Ferrari, and F1 sans Ferrari would be difficult!!

      2. @wsrgo – it will! Ferrari have been playing the “do what we want or we leave” card for years and it has worked nicely for them. With Mercedes having agreed to supply engines to various teams as well as no tyre manufacturer likely capable of creating a decent F1 tyre in half a year, I’d say they won’t do anything too drastic! I wouldn’t be surprised to see a hefty punishment dramatically reduced under appeal.

        1. @petebaldwin

          Ferrari have been playing the “do what we want or we leave” card for years and it has worked nicely for them

          When exactly Ferrari broke a rule and was close to be punished and then come out with “do what we want or we leave”.

          Can you bring data, link or whatever to prove that…or it’s your personal opinion

    4. @jeff1s Smart competitors don’t quit in reaction to being punished for breaking the rules – even car manufacturers. Consider the example of Toyota in the WRC a few years ago. Or even Renault in F1 post-Crashgate: they kept their name on the cars and subsequently remained as an engine supplier.

      In Mercedes’ case they have contracts in place next year with McLaren, Force India and Williams which no doubt will have break clauses attached to financial penalties. That’s an incentive to stay beyond merely not wishing to quit with their tail between their legs.

      As for Pirelli, they have no contact to supply tyres for next year. Given the recent aggravation you couldn’t blame them for wanting to leave. But there are rumors they’ve agreed an F1 signage contact with FOM for 2014 and beyond.

      1. Of course they won’t quit in reaction to the tribunal, but Mercedes could get some bad publicity from for their road-car business (even more for their work f1 team); and Pirelli is fed up by criticism.

        @keithcollantine So contract is with FOM not FIA?

        1. Yes, @jeff1s, so far the teams have contracts with FOM, but as there is no Concorde Agreement signed they do not have a contract with the FIA over governance.

          But by entering the championship, they automatically subscribe to adhering to the FIA rules.

          As for Pirelli – they do have a contract with the FIA, that is where the “1000 km test” comes from. But so far there is no contract with a tyre supplier for next year (could become a bit of a problem), although Pirelli is said to have already bought track signage from FOM for next year.

        2. @jeff1s @bascb

          So contract is with FOM not FIA?

          Apparently Pirelli have signed a deal with FOM to buy signage rights around the track – the big Pirelli adverts you see around all the circuits.

          They have not yet (as far as we know) agreed a deal with the FIA to supply F1 tyres from 2014.

          But the FOM deal presents the FIA with a Hobson’s Choice: what other manufacturer is going to bid for the tender to supply F1 tyres when all the tracks are going to be plastered with adverts for Pirelli?

    5. F1 isn’t a playground where one runs home with the ball.
      But even if they react that way – I’d say let them – F1 may suffer for a while but in the long-run it would be better than appeasing to Mercedes.

      1. I completely agree with you, if Mercedes is gonna be a big baby I said good riddance…

  4. @keithcollantine Is the tribunal open to the press?

    1. Right now the tribunal is the press.

  5. I think that Mercedes will be found guilty and will have to pay a considerable fine and lose some points in the constructors’ championship.

    It is pretty clear that FIA doesn’t agree with Mercedes’ view on the situation and that the current FIA sporting rules don’t allow this kind of testing. As for Pirelli’s contract with FIA, Monisha Kaltenborn, a professional lawyer, has said that a contract can’t overrule a law, which makes sense and also indicates that E-mails have an even smaller importance. So, even if Mercedes have an E-mail from Charlie Whiting that says they are allowed to carry out the test without any ‘ifs’ or ‘buts’ (which I really doubt), I don’t think it’s enough to allow Mercedes get away without a punishment.

    1. Well Monisha Kaltenborn needs to take her Staatsexam again because the Sporting regulations , or any other set of rules promulgated by the FIA, are not laws. In any case, Ms. Kaltenborn is hardly an impartial observer. These are all “contracts” we are dealing with. The FIA tribunal is dispute resolution procedure agreed to among the parties as the term of a contractual agreement. Whether Pirelli’s contract supercedes some other contractual provision in effect among the parties is, in the first instance, a matter to be resolved by addressing said contracts. If the contracts say that this is to be addressed by a specified procedure, it goes there. If a party feels that the dispute can’t or should not have been addressed by the procedure, or that the process itself was inconsistent with their agreements, they can go to court.

  6. Anyone knows if hamilton will be at paris the 20th of June? Let me know if it’s the case maybe i can grab an autograph!!

  7. I can speculate about two or three race bans, a big fine naturally (not likely of the size of the fine given to McLaren during SpyGate) and why not points reduction… anything goes except FIA going to such an infuriating point that can push Daimler to leave the sport.

    What I am sure of is that Mercedes blatantly breached the rules and gained an advantage and that should be dealt with harshly; imagine if they go with a slap on the hand how RB and the Scuderia (and everyone) will be running after Pirelli for test dates… Impossible.

    But do you wish to give us you opinion @keithcollantine? I enjoyed reading the Analysis and surely you’d have a impartial opinion on what should be done…

    1. Only Time will tell! Come Thursday and we will know who is wrong and who is right. In my opinion however, C. Horner and red bull are very terrible losers. I have not heard the other team principals moaning about this the way they have. I have a theory as to why they want the mercs to get punished so bad.
      The mercs have the fastest car over a single lap (It will only get faster), and with drivers like Lewis and Nico! thats basically pole positions for the rest of the season(Dry Qualifying). Now imagine the potential race wins that could be achieved if they finally got rid of their tyre problems or at Least understood them better (Which i believe they will IMO). I think Redbull and Ferrari (Montezemolo dropped the hint with his statement) are well aware of this and will not be too pleased to see Lewis and his gang crashing their little “Alonso vs Seb” party. After all, many (including lewis) did not believe he would even come close to having a shot at the title this season, but look where we are now.
      I also feel Mercedes and Ross are not the type to be so foolish to make such a move without knowing the consequences. Besides, if Mercedes or any other team for that matter (especially Mclaren, ferrari and RB) engineer a “secret” test, I doubt many will have knowledge of it,for years to come. (After all, it was in broad daylight the tyre tests were conducted and not many knew for weeks, same goes for the ferrari test). They way the news even got out suggests to me that the driver (Nico) who spoke must have been so comfortable with it that he could discuss it with another driver (seb).
      However, i may be totally wrong, the mercs might be the cheats and lairs everyone is accusing them of being and they may be found guilty on thursday. Ross may get the sack and whoever may take over. But no matter what happens, that will not stop lewis and co from crashing that party, come the business end of the season (I say this because i assume the punishment, if given, will not be extended to the drivers.).

      1. Yes yes yes all you said might be true, but it’s a theory. Now I like evidence, what I see is that Mercedes are running at an illegal advantage, period. I don’t care about the intentions of anyone; let alone accusing Red Bull of being sore losers while the others will act all high and mighty if they catch RB in the wrong… forget it.
        It happens to be that Merc is wrong and for me Pirelli too but in a smaller scale.

      2. I think the reason Red Bull and Ferrari complain and, McLaren, say don’t is more to do with the relationship with their engine supplier rather than any intrinsic sense of being a sore loser. Which, is in any case not true when you look at both the driver and constructor championship standings.

  8. Lewis appears to be cursed, both the teams he has raced for have been caught up in a major scandal in the first year he drives for them

    1. Tefilton?

      1. More like Velcromilton. He rarely escapes his scandals without consequence.

    2. @ob1 On the flipside, I can say that Lewis has been lucky that he has gone to a team which has gained over two seconds a lap in the winter, whereas his former team has gone the opposite way..

  9. I’m very curious what the Tribunal reveals of what we don’t know yet, especially if there’s anyone from the FIA (and is it really C.W.?) who made Pirelli and Mercedes believe that the test is fine with the rules and they would get away with that without any trouble. Also, was FOM involved in any way?

    I’m also interested in knowing more details about the Pirelli-Mercedes arrangement of the test. Didn’t Pirelli really know that Mercedes would bring their 2013 car/drivers to the test? Or maybe they did specifically ask for that? Weren’t really any other teams informed of it?

    From what we know at this moment, I think Mercedes is clearly in breach of the rules. I can’t believe that such team made such a big ‘mistake’, but sometimes things happen and empires fall.

    I also think there just has to be some more transparency in the way the extra tyre tests are conducted if a current team and/or driver is involved. I don’t mind the alleged ‘secrecy’ of the test (IP protection _is_ important anyway) but all teams simply must know about it and a technical delegate from FIA should attend to the test. There should also be a formal post-testing report afterwards.

    No crystal ball in my disposal, but I suppose some heads will roll at Mercedes and FIA, and Pirelli will probably be reprimanded. Time will tell.

    1. JimmyTheIllustratedBlindSolidSilverBeachStackapopolis III
      18th June 2013, 22:11

      It’s like this pirelli can test any current f1 car as defined by their contract.
      The teams as defined by the sporting regs can only test non current f1 cars.

      If a non current f1 car is determind to be 2011 or older it stands to reason that a current f1 car is 2011 or newer.

      This was a pirelli test they can, need and have been asking for the loan of current f1 cars since they entered f1.

      That’s all that matters because in every other way the test was the same as ferraris who there are no questions about. Yes there will be alot of disapointed people come thursday who will claim the fia is now the fatherland international assistance here’s looking forward to thursday.

  10. My gut is telling me Mercedes will get away without punishment – the email from Charlie (who after all is a senior FIA official) will be their get-out-of-jail card. Charlie, though… I don’t think he’ll be as fortunate. But that’s another story.

    As for Pirelli, I’ll be very surprised if they get any sort of punishment here. I don’t see why they should be.

    1. Since when have “senior” FIA officials given teams the permission to break sporting regs?? Also, does Charlie possess sufficient authority to issue such permissions?? But these questions naturally didnt occur to you..

      1. The problem is that if you have “permission” from the FIA (in email form from Charlie) and its not really your responsibility to ensure all the other teams were asked to do the test (that was Pirelli’s problem) then really you have no reason to believe you broke the regs surely?

        1. The FIA did not give them any permission, and this was made quite clear by them last month. So in what capacity was Mr Whiting acting?? And once again, does he(or anybody, for that matter) possess the authority to overrule sporting regs?? These questions remain unanswered…

          1. @wsrgo Ah, but which arm of the FIA is talking? This could very well be a case of one hand not knowing what the other is doing. There’s a reason there are rumors bubbling about Charlie getting sacked…

  11. Can they give a punishment something like Mercedes is forced to freeze their chassis till end of August. Or Meredes is not allowed to test on Fridays for the next 4-5 grand prix. Till every other team on the grid has lodged 1000 km of Friday runs?

    1. But then some teams will deliberately not do much running on a Friday to extend Mercedes disadvantage.

  12. I know that the rules are equal for everyone, but if the rules are with imperfections than this kind of things are doomed to happen. One side of the problem is the inability for Pirelli to test with current car, and the other is the inability for the teams to test with Pirelli tires. As every track has unique characteristics and the cars are evolving constantly there is no way that friday practice can help you adjust your car for the race perfectly. The pressure is enormous and it had to explode sometime. Will have to wait for the FIA’s tribunal to know all the facts but I’m guessing that nor Pirelli nor Mercedes are MAD enough to do anything stupid without the knowledge of FIA in the first place?! I think that FIA of Charlie himself allowed the thing to happen in order to help the both parties.

  13. As far as I can tell, there was nothing to distract Whiting, if indeed he gave permisssion, apart from trying to book a flight out of Spain, so the FIA cant play that card.
    Already we know RBR were invited to carry out the test and they declined, so its not like Pirreli didn’t offer other team(s).
    The tyres may not necessarily be the race tyres for next year but may be to help decide what direction to take the tyres for the next season.

    If they are indeed found guilty which I doubt, it may only affect some results post Barcelona or a small fine as it cant be established that they gained anything from the tests. I dont even see this as seriou as running an illegal car.

  14. I think Mercedes might be punished in the same way McLaren was in 2013 and that they might be excluded from the constructors championship but will be allowed to continue racing in 2013 and no points docked in the drivers championship. Seems reasonable giving the seriousness of their infraction.

    1. @force-maikel People keep saying this but I don’t see how it’s “reasonable” to exclude the drivers from punishment when they were involved in the test.

      1. I agree, both drivers knew they were testing and why wear plain helmets instead of their usual ones. They are also guilty and should also be punished

  15. Reading the facts as facts i can’t see how will Mercedes get away withou a sanction.
    Brawn knows he’s way around, but the evidences here are inquestionables…
    Even if they have ane e-mail from someone, that doesn’t gives them bless to go aroud the rules, Mercedes should be punished and a lot punished to set as example…

  16. BarryBigEars
    18th June 2013, 14:46

    Well, the speculation builds…
    Great article, and a really thorough summary, as much of the information elsewhere is quite piecemeal.
    If Mercedes have an email from Charlie saying, ‘Yeah, sure, use your 2013 car and drivers” I’d be really surprised. Charlie seems very good at his job, and his famous ‘nod’ is usually based well within the rules.
    The really strange thing seems to be that Charlie and Ross have both been involved in the sport for so long, it seems out of character for either of them to make a monumentally bad decision. So I assume there will be a lot of new information presented at the tribunal.
    However, my gut feeling is that whatever new evidence transpires, the FIA will not see any of it as justification for breaching the sporting regulations.
    As for penalty, I would have thought the most similar precedent for breaking regulations and potentially gaining an advantage was the 2005 BAR dual fuel tank setup which resulted in a 2 race ban and a 6 month suspended sentence. At the time Max Moseley saw this as lenient. Nick Fry was at the helm at the time I recall, prior to the team evolving into Honda/Brawn/Mercedes team.. Oh hang on a minute.
    So, if Mercedes are found to have broken the sporting regulations, and gained a 1000km testing advantage over the other teams, I think the penalties could be eye watering. That is of course, if they are found guilty.
    They are innocent until it is proven.
    If found guilty, I think for Ross Brawn to be sacked when he was planning to leave soon anyway, and a fine which will be trifling in relation to the funds available to Daimler, will not be considered sufficient penance.
    I envisage, if Mercedes are found guilty (and as yet they are not), they might face a three race ban, a 6 month suspended sentence, and points deduction or exclusion from the constructors championship.
    The three race ban equates to around 1000km per car, but the cost to the Mercedes brand will be far higher.
    All of the folks who say, “they should give the other teams 1000km testing to redress the balance” are missing the point of a penalty. If you break a rule and gain an advantage, the penalty does not consist of giving back that advantage. It consists of giving back that advantage and then receiving a penalty for transgressing the rules, over and above losing the rewards of the crime. A bank robber is not asked to give the money back, and then sent on his way. He is asked to give the money back than then incarcerated.
    It’s getting almost as exciting as Monaco qualifying. Not quite as glamourous, but edge of the seat time for all in Brackley.

  17. As I understand it, there are three reasons why Pirelli and Mercedes could be punished:

    1. They broke article 22.4h, running a car 2013 car when it wasn’t allowed.

    and from the FIA’s reaction directly following the Monaco Grand Prix:

    2. A tyre test must be conducted by Pirelli, not Mercedes.
    3. All other teams should have been offered the opportunity to test.

    On the basis of points 2 and 3, I don’t think Mercedes should get a significant penalty. For point 2, it is debatable to what extent the test was carried out by Pirelli, and to what extent by Mercedes, and for point 3, that is Pirelli’s job (which they didn’t do properly, in my opinion).

    However, the fact that the FIA would allow testing under certain conditions seems to contradict their own sporting regulations, so Mercedes might well be found guilty on the basis of point 1.

    As for the penalty they will receive, I think Charlie’s email will constitute mitigating circumstances, but I doubt it will let them off the hook. If I were to hazard a guess, I would agree with @wsrgo: a fine and a suspended ban. On the other hand, it wouldn’t be the first time the FIA has shocked me with the severity of their penalties, so it could be a lot worse.

    If they do get a very harsh fine, making a dramatic gesture like pulling out of F1 and leaving it up **** creek has some appeal, but as Keith pointed out, they have contracts with other teams so that’s not going to happen. The only thing they could, and might do is to walk away from their own team, and see if Ross Brawn has the money to buy his team for the second time in four years time…

    1. Too many assumptions are being made by most commentators on this: “Mercedes tested a 2013 car” – it is not that simple.
      It helps to stop thinking about the appearance of what happened and start thinking like a lawyer.
      F1 rules are notorious for being vague and thus being scrutinised heavily by teams who effectively break the spirit of the rules but not the letter.

      Ross Brawn already highlighted their kill argument in the Canada press conference “it was a Pirelli test”. From a business/legal point of view, Pirelli cares about its commercial agreement and liabilities with the FIA. While Pirelli is a private company and should be able to test what on earth they like to test with whatever, it’s understandable that the FIA might want to restrict some of their business freedom given their role in F1 – this is the role of the FIA-Pirelli commercial contract and could easily have contained things such as “Pirelli must have no private dealings with any company, linked subsidiary, or parent company of any F1 team” the breaking of which might incur financial liability under contract law and perhaps voiding of the Pirelli-FIA contract altogether – a business disincentive. Instead, it appears that Pirelli has a clause in their contract with FIA that specifically exempts them from any contract violation for testing with “representative” cars.

      What does this mean? Well, for one, they could approach Red Bull Technology and buy an F1 car which (ho hum) eerily looks a lot like the RB9 and do a load of testing with their new toy.
      Or perhaps instead, Pirelli could enter a contract with Audi where they pay for the use of a representative F1 car to be used for their own private testing purposes, oh, and pay for qualified technical personnel to aid in the testing. Replace Audi with Mercedes – both are private companies with capabilities to build an F1 car.
      The fact that the car “looks” a lot like the 2013 Mercedes is neither here nor there, as this is a Pirelli transaction. From a legal perspective it is very very different to “mercedes tests the W04”.

      I think this will be Brawn’s approach.

  18. If the “Charlie Whiting e-mail” is true and exist than his (Whiting’s) loss will be of a much more impact than any race-bans, fines or “lets pull out of F1” stuff for Mercedes/Pirelli.

  19. I woke up this morning and hoped to find an article relating to the tribunal on the 20th and Keith, as always, you deliver. What a fantastic website.

  20. I feeling is Mercedes will get away without any punishment. Ross Brawn has been in these type of situations before and he just seems so confident that he will be cleared.

  21. *My feeling…

  22. I really don’t think anything serious will come of this, especially if there is an FIA-approved stamp on this whole situation. Maybe a few million dollar fine. Maybe a points loss from Canada and Monaco being the maximum here.

    1. Who has proof that Mercedes is guilty ?

  23. I think they will get a fine and get excluded from some Friday sessions—law and equity. That’s the only reasonable thing to do.

    The FIA will need to clean up after itself afterward. It’s Ferrari ruling still smells pretty foul, as it basically hangs on the finding that a 2011 car is not like a 2013 car developed on the same formula, and ignored the fact that the Ferrari test used current tires. Of course that helped Ferrari. In the future, if we have “secret” tests that are only adjudicated compliant after the fact, then this is an insane situation.

    1. So the 2013 car has been “developed on the same formula” as the 2011 car?? Please tell me more about it. All you budding Neweys should immediately apply for the TD posts in various teams. Even Keith kept on blabbering about how downforce levels in 2011 and 2013 are similar, yet he very conveniently forgot to mention that the 2011 car didnt have the 2013(and 2012) car’s pullrod suspension. There’s a reason why a test session with a 2 years old car is legit. And the relevant rules have been framed by people who know a lot about motorsport engineering. Why do you think that Horner dismissed the idle claims of Ferrari having benefited from the test which they carried out with their 2011 car?? If anything, Ferrari’s an even more potent threat to RB’s hegemony than Mercedes, so he should surely have gone after them as well?? Or perhaps you think that he is a Ferrari spy in disguise??

  24. WilliamB (@william-brierty)
    18th June 2013, 16:01

    Wow, that is one of your very best articles, Keith, and that is saying something!

    Regarding “testgate”, I think there is rather more going on than a simple recital of the regs would conclude. OK, Mercedes have broken the regulations, fact, but no team intends to break the regulation especially regarding something like a test; something that cannot be concealed. Would Mercedes enter a test in direct breach of the regulations, thus jeopardizing their 2013 campaign, if they did not have a thoroughly detailed and competent case arguing their stance? No. On the other hand, is it really 2013 that matters to Mercedes? No. Would they really mind penalizing their 2013 campaign if they could get some kind of guarantee of performance in 2014 when the effects of being a “works team” come into play? Of course not. They are a lot more moving parts to this particular case than is apparent from the surface, and I think Mercedes are possibly looking at the long term, using the test to prepare for 2014. And remember, Mercedes have at no point said the words, “we can win the 2013 championship” despite having the probably the fastest car, in terms of raw performance, on the grid. In fact I would suggest that Hamilton was recently advised to dilute this ethos of 2013 disregard when he said that the title win was “possible”. Mercedes definitely have a plan, these are highly intelligent people, and they do not attempt to hide 1,000km test by putting blank crash helmets on their drivers and then look surprised when they are punished. Whether they are looking at the long term, or simply have a case justifying their position I really don’t know, but I would be very surprised if Mercedes don’t ultimately end up benefiting from the test in the long run, regardless of any potential sanctions, or why would Mercedes have done it?

    1. @william-brierty
      Just playing devil’s advocate here but this:

      OK, Mercedes have broken the regulations, fact

      ..has not actually been established. One point which @keithcollantine hasn’t mentioned in his excellent article above is that the first point which needs to be addressed is whether this was a “test” as defined in article 22.1 of the sporting regulations

      22.1 Track testing shall be considered any track running time not part of an Event undertaken by a competitor entered in the Championship, using cars which conform substantially with the current Formula One Technical Regulations in addition to those from the previous or subsequent year.

      This is the definition of a test within the rules. If the time spent by Mercedes on the track does not fall under this definition, then it’s not technically a “test” and so wouldn’t be against the rules. To clarify, in order for it to be considered a test, it must fulfil the following criteria:

      1 – track running time not part of an Event
      2 – undertaken by a competitor entered in the Championship
      3 – using cars which conform substantially with the current Formula One Technical Regulations in addition to those from the previous or subsequent year.

      The Ferrari track running did not fulfil points 2 and 3, and so was not a “test” and not prohibited under Article 22. We know that the Mercedes track running wasn’t part of a championship event, and we know they used a car conforming to current regulations, meaning that points 1 and 3 are satisfied. However on point 2 there appears to be some wriggle room.

      Was the test undertaken by a competitor? If you look at the Ross Brawn quotes above, you’ll see he was stressing the fact this was a Pirelli test, not a Mercedes test. This suggests that at least part of their defense will be to say that the test was undertaken by Pirelli, who aren’t a competitor.

      One point of note – two words are used, seemingly interchangeably, in the sporting regulations: Competitor and Constructor. It seems odd that we would use two words for the same thing, so seeking a little clarification on the matter, we should look to the Appendices for a definition, where we find the following:

      APPENDIX 6

      4. Any reference to any competitor shall include any associate of such competitor.

      This is an interesting point. The word ‘competitor’ therefore does not exclusively mean the team entered into the championship, and it can also include associates. What’s an associate? Again we turn to Appendix 6 for clarification:

      5. An “associate” means :

      d) Any person (including any corporate or unincorporated body) which is set up or used by a competitor to circumvent the definition of a constructor or defeat the restrictions on being a constructor in this Appendix 6.

      Now, clearly I’ve removed some of the other definitions there, but unlike the definition of a Test, an ‘Associate’ does not need to meet all of the criteria, just one or more. So while Mercedes may have the defense that Pirelli aren’t a competitor, which would mean that the track running would not count as a test, in this instance it could be interpreted that Pirelli themselves would fall under the umbrella term of ‘competitor’ since they would be an associate of a competitor being “used by a competitor to circumvent the definition of a constructor”

      So, there’s clearly a small amount of ambiguity here, and some room for interpretation. But the point remains; the first thing the tribunal will need to do is establish whether or not the track running in question actually counts as a “test” going by the definition laid out in Article 22.1. If it concludes that it doesn’t count as a test, then there is literally no case to answer.

      1. I really appreciated your brilliant dissection of the rules, and would just comment on the area where you think they may be exposed. Appendix 6.5.d. “Any person (including any corporate or unincorporated body) which is set up or used by a competitor to circumvent the definition of a constructor or defeat the restrictions on being a constructor in this Appendix 6.”. This comes down to English grammar…subject and object type stuff. 1. Clearly Pirelli was not set up so that Mercedes could circumvent the definition of a constructor, so that is a non-starter. 2. If it is the case that Pirelli requested and managed the test then it seems implausable that Mercedes could be considered to have ‘used’ Pirelli for that purpose either. As such Mercedes are home free and so they should be – I am not a big fan of the Mercedes brand or the team, but I am tired of Red Bull using every thousandths of an inch of the technical regs to gain advantage and never be penalised. What is good for the goose…………

        1. It’s a shame you mention Red Bull because it sort of makes it sound very much like because you don’t like them, you’ve made a biased judgement about this case without knowing the facts.

          Yes, there is some further ambiguity, and it is by no means clear cut. We know that Pirelli have said very clearly that it was Mercedes’ idea to use a 2013 car, so in that respect even though the test was proposed by Pirelli, it could be concluded that Mercedes used the fact it was a “Pirelli test” to engineer an opportunity to conduct a test which would otherwise have been prevented by the rules. The point obviously being that we can’t, at this point, say for definite whether or not they will be found to be in breach of Article 22. My only argument is that claiming that it was a Pirelli test doesn’t automatically absolve them of any responsibility.

          On your final point I will say this – no team has ever won a championship, including the 2009 championship won by the team now known by Mercedes, without “using every thousandths of an inch of the technical regs to gain advantage”. Mercedes do it, McLaren do it, Ferrari do it, Lotus do it, all the way down the grid to the very slowest teams. All of them will be looking for any little loophole in the technical regulations in order to build a car which will be faster than its rivals. The most successful teams will always be the ones which are best at doing this. This is one of the fundamental principles of Formula 1, and it’s ludicrous to try and single out one team as being bad guys for doing it.

          1. I agree that most teams might try to do the same thing with respect to pushing the interpretation of the rules to the limit, although it is an absolute certainty that some must push more than others. I simply feel that if a team has found a loophole that enables it to breach the spirit of a regulation without actually breaching the letter of the regulation, then they should be treated in the same way as other teams who have done similar things i.e. no penalty and a cleaning up of the regulations. Unless you are living in a different world to the rest of us, it is clear that Red Bull are the masters of this art in recent seasons. They have largely evaded any kind of punishment, and yet they appear to be the team bleating the most about Mercedes…hence the reference to them in particular.
            On the matter of ludicrous comments, it is ludicrous to suggest that the most successful teams are “always” the ones that best utilise loopholes…sometimes technology breakthroughs, design, reliability, drivers, tactics, etc. make a difference, and if you don’t think that is the case then you should possibly rethink why you are interested in the sport…regs. are interesting, but they are not everything.
            Still a great dissection of the rules though…thanks!

  25. Just something regarding Charlie Whiting.
    He’s the race director, Official starter, Technical/Safety delegate & Head of the technical department.

    Anything relating to the sporting regulations (Test restrictions are all part of sporting & not technical regs) falls outside of his remit.
    When it comes to sporting matters Charlie can only give opinions, He can’t make the decision.

    Also unless its changed since I was last around F1, No document is considered an official FIA correspondence unless its sent to all competitors & made freely available to the media.

    If Mercedes or Pirelli have an E-mail from Charlie, Im not sure that will necessarily help them since he doesn’t hold the power to OK a test given that testing is a sporting matter rather than a technical one.
    The only way I see any E-mail from Charlie been relevant is if he was given permission from somebody higher up to inform them they could run the test & was passing this message along.

    The top guys at both Pirelli & Mercedes should know the limitations Charlie has regarding sporting matters, To get an opinion from Charlie & then treat it as the final say (If thats what they did) is absurd.

    1. I agree that any emal from Whiting falls into the “mistake of law” category of excuses for a violation of a rule, otherwise known as the last refuge of the desperate. I would have thought they have more than this. It could be that what Whiting is saying is reporting what the FIA has said. But parol evidence is not much better as a defense. The only thing that mitigates the situation for MB, and what must mitigate it, is the open participation of Pirelli as part of an open project to do this test. We know that Pirelli approach other teams and their intentin to do this test was no secret. The FIA, if they were not directly apprised, it a appears to have been willfully ignorant or grossly in dereliction of its role.

  26. Simple question. If I run an F1 team, and I test a 2011 car but with a 2013 rear wing on it, is that now allowed because the car as a whole does not “conform substantially with the current Formula One Technical Regulations”.

    To put it another way, can Ferrari conduct a private test with their 2011 car but with for example 2013 spec Kers or similar? Who would know about this.

    All tests should be atteneded by an FIA scrutineer IMO. I don’t understand the sporting code, but then again, neither do the FiA on many occasions in the past.

    1. Correct me if I’m wrong, but at straight line tests, FIA officials are present.

      Also, if Ferrari were to run a 2011 car in Corse Clienti, with 2013 parts, it would be a juridical minefield to navigate, both for Ferrari and the FIA. I’m pretty sure if Ferrari (or any other team for that matter) could legally gain a ton of data using a 2 year old car with new parts, they would have started doing so a long, long time ago.

      1. Well, yes, @npf1, at straight line tests a FIA representative is indeed present. But at the test Ferrari conducted for Pirelli no one was, as they were as much uninformed about details of it as they were of the one done with Mercedes.

        So my understanding (also taking from the great interview with Marc Priestley) is, that its indeed well possible that what @john-h mentions has happened and its considered to be legal and no one apart from Pirelli or Ferrari was there to monitor it.
        Off course its possible that the FIA was satisfied with information presented after their inquiry to Ferrari that the team did not use any such parts, but so far we do not know that for certain.

  27. How long will it take before the decision is announced? I’ve heard mentioned several times that we’ll know on Thursday (the 20th) what the result is. Will the tribunal announce their decision that quickly or will their be an announcement at a later date?

  28. “I think when the facts become apparent then people can make a better judgment of the situation.”
    Ross Brawn

    There is nothing preventing Brawn and Mercedes from making “the facts” public right now. Given that they are already getting a black eye in the court of public opinion you’d think they would be eager to do so. The only logical conclusion is that “the facts” are already out there and there are no additional exculpatory facts for Brawn to present.

    I think Brawn made the calculation that any penalty would be outweighed by the advantages gained – both this season, and even more importantly in the 2014 season.

    1. How do you know that Mercedes haven’t been told by the FIA or their lawyers not to publish their evidence before they present it to the tribunal ?

      I’m not an expert on legal matters but the one time I went to court to defend myself my lawyer told me not to disclose any of the evidence in public before it had been presented in court – maybe Mercedes have been given the same advice/instructions.

      1. If you have evidence that you are innocent of a crime you have been accused of, what do you gain by keeping it secret until your trial?

        You don’t gain anything. In fact by producing that evidence up front you may not even have to go to trial.

        1. Maybe to make sure the counterparty can’t prepare themselves on the provided evidence?

        2. There’s a difference between keeping something secret and not making it generally available to the public. In my case the evidence had been given to the authorities before the trial and while they didn’t consider it to be important the judge did. I’d expect that that would be the case for everyone who has been acquitted in court, the CPS prosecute if they have reasonable grounds to suspect you committed a crime but that doesn’t mean you’ve actually committed a crime and judges and juries regularly acquit people based on the same evidence that the CPS have considered strong enough to pursue the case.

          Mercedes may have given the evidence to the FIA, yet do not want to give the full details to the public before it is formally presented to the tribunal – although this is just speculation and as I said, I’m not an expert on legal matters.

  29. “between the start of a ten day period which precedes the start of the first event of the championship and 31 December of the same year”.

    So you can’t test from the 10 days before the first race and also not between 21st december and 31?

    Have to read the whole article, but this strikes me as multi-interpretable.

    1. Its exactly that. So for next year, when the first race will be 2. march, it means the last test day has to be 20. Februari and then they cannot test until the next year.

  30. Michael (@freelittlebirds)
    18th June 2013, 19:08

    I think the only reasonable fine is a free leather upgrade for every new Mercedes car being sold out there. Who’s with me on that?

  31. I expect that Mercedes may get some form of punishment, so that FIA can save face in the public view and with the other teams. I think that Ross Braun should not be excluded, since he acted in good faith, and I expect will present evidence that he communicated with Charlie Whiting, who is the last word on things for F1 in usual regulations. Maybe Charlie is getting a little long in the tooth, and should to be set out to pasture in some party’s view, but such retribution may be short sighted given his record.

    I think the true instigator of this travesty is Pirelli, since they thought they could just approach any team and give them tires to test and not care about any consequences. Were they in collusion with another F1 team? Italians helping Italians would not surprise me. Of course, such a situation will be very difficult to prove, and some will take me to task that the red team could do any wrong. It seems that Pirelli will escape any discipline, and they will continue to provide shoddy tires, which are cheaper to make and the teams will continue to have to trundle around the track like test cars to make it work. If that is the case, it just makes the competition contrived, much like NASCAR racing and so called IndyCar racing.

    1. What I find notable is that Merc initially offered a two year old car like Ferrari, but Pirelli declined and preferred a 2013 model, and Ross was cautious about the situation and asked Charlie Whiting about the permission to use a 2013 car in tire testing. Apparently Charlie gave a conditional yes, and later talked with FIA lawyer, who said the test is fine if the tires are offered to the other teams, the next day, which I believe was one day into the tire test. Merc and Pirelli were informed of this by Charlie, but Pirelli never offered the tires to the other teams. Yeah Merc broke the rules, but they were lead down the path acting in good faith by Pirelli. Perhaps we can fix the situation, by banning Pirelli tires for 2014 along with a hefty fine for Pirelli and Merc.

  32. I just hope that the FIA gives mercedes well deserved disqualification from championship!

    1. Pff, wimp! I say nothing short of public hangings.

  33. Most comments seem to be jumping to conclusions big time. It definitely is _not_ clear that Mercedes broke any regulations. Did Ham & Ros ran their 2013 car? Yes. Is there any regulation prohibiting it? NO!
    Regulations prohibit Mercedes running tests with their current (or similar) car, but was it really a Mercedes test or was it a test ran by Pirelli? Like it or not, this is a legal trial and will not be decided (should not be decided) by what people think about advantages gained/not gained by Mercedes, but based on whether the regulations were broken.
    In the last decade or two we have seen teams getting away with obvious breaches of the spirit of the rules, because they did not break regulations as written. I’d wager that’s exactly what Brawn is banking on.

    1. It definitely is _not_ clear that Mercedes broke any regulations. Did Ham & Ros ran their 2013 car? Yes. Is there any regulation prohibiting it? NO!

      There are very clear regulations prohibiting testing with a current car.

      was it really a Mercedes test or was it a test ran by Pirelli?

      It was a test conducted by Mercedes with Mercedes cars, Mercedes engineers, and Mercedes drivers. By any normal usage of words that makes it a “Mercedes test”.

      1. The test was conducted by Pirelli though, but they used Mercedes cars and had Mercedes bring the drives and most likely at least part of the engineers @jonsan. I am not saying that makes it a clear Pirelli test, but it does leave some room for interpretation (which I am skeptical the tribunal will accept though)

    2. @ph

      Is there any regulation prohibiting it? NO!

      Yes there are – the ones quoted in the article.

  34. invisiblekid
    18th June 2013, 21:26

    Whatever the outcome I think the test has been handled appallingly by EVERYONE including the FIA. This was 1000km of testing which in an old car or not, is valuable in some small way to a team.

    There should have been a number of windows open for testing set by the FIA and they should have been in full control over this. They should have ensured Pirelli told everyone that there was this testing up for grabs and some dates.

    The FIA know with such strict testing rules and from previous behaviour, give an F1 team an inch and they’ll take a yard.

    Having said that, of course we don’t know how much wool has been pulled over their eyes. But again if this was handled more forcefully there would be option to do all this so secretly. Sorry Merc and Pirelli, this WAS a secret test. But using a current car to test was such a huge no no, I cannot fathom how or why Mercedes would risk using it had they not had permission.

    As with so many things, loopholes and liberty taking have always landed a team with fines etc and a “oooops we must try/look harder next time” by the FIA.

    Using a current car to test was such a huge no no, I cannot fathom how or why Mercedes would risk using it had they not had permission. But again, a loosely worded letter from CW could, like the rules, but read differently and Merc could again be pinching an inch or two.

    The whole thing is a mess and for me, the FIA in this case has acted far too leniently as far as organising this and I fear will act too overpoweringly over it too.

  35. Your ‘title’ Keith implies that Merc is guilty, which is not exactly a fact at this point.

  36. All the particulars notwithstanding, Mercedes and their drivers had 1,000km of in-season testing that the other teams have not been able to undertake. Hard to watch the races since and imagine their ‘improved’ performance is not somehow related. Further, it takes the luster out of the 2013 championship as one team has sought to extrapolate the rules into a manner which unfairly favors them. Legal mumbo jumbo aside, as a result the 2013 championship is not being competed upon in a fair and honorable manner and will end up with an asterisk beside it in the history books. Minimum penalty, 100 points off season tally…

  37. This is as black and white as it gets. Mercedes used their current car to test, and that’s against the regulations. Email or no email, Pirelli asking or not asking, it’s all smoke and mirrors, it’s the entrants responsibility to comply with the regulations. As far as I am concerned the interesting point here is not whether Mercedes will get punished, but what the punishment will be and it’s repercussions, including Brawns position as team principal.

    1. Maybe “Pirelli used the Mercedes car and the Mercedes drivers” to do the test.
      It all depends on how the rules are formulated.
      If the regulations isn’t written propperly, Mercedes could very well get off the hook on such a pitty detail.

  38. Maybe Ross did it on purpose, believing it would bring disgrace to a team that appears to be moving toward sacking him anyway…….?

    The conspiracy theorist.

    1. If you are going to create a conspiracy, at least try to not make it completely ludicrous so that we have something to argue for/against.

      You know, they never did land on the moon!

  39. Personally I feel the most important thing that can come from this is that the FIA Tribunal will (or will not) be established as credible by a transparent procedure leading to a well argued decision and a fair penalty (if any).

    As for Mercedes, I can’t really see how their defence can hold, but then I expected Ferrari to be punished for blatantly ignoring the ban on team orders and I was surprised how teams have been getting away with things that were clearly not as intended in the rules but found ways to not be infringing them (traction control, flex wings, barge boards, flex wings again, engine mapping, you name it), so I would not be surprised to see Brawn get away with it (that would mean the FIA will have to immediately give new rules on testing though, because if a team can provide a car for a Pirelli test without breaking testing rules, that will give us at least 3-4 teams wanting to go testing right away)

    But it would be very sad if it led to Charlie Whiting getting axed by Todt as much for not being “his guy” as for doing something wrong. Makes me think back of Gary Hartstein.

  40. Ross Brawn certanly seems a little too self confident and experienced to have made such a huge misstake. There could very well be a loophole.

    The one that to me seems most likely is that the rules about “conducting a test” is written in such a sloppy way that the tyre test in question wasn’t conducted by Mercedes at all. They provided the cars and the drivers but they didn’t “do the test”.

    If so, notging else matters.

    Being a race fan, I certanly hope it’s not the case.

    Being a Mercedes fan, I kind’a do hope so.

    Either way – Something fishy going on here… >

  41. Just got back to my computer after being away for several days. Haven’t had a chance to read everyone’s remarks here but I think I get the gist of it. For me it comes down to a few things that I think will be key in the tribunal conversations. I know that Brawn can be accused of questionable tactics in his F1 career, playing the game to his/his teams’ advantage shall we say, but somehow I think this in-season test ‘rule break’ would be too risky and too obvious for him to have done in any way other than with the thinking that he had permission, and therefore if they are found guilty of anything I think the punishment should not be severe.

    I think this was a Pirelli test and I believe both them and Mercedes that this was not a test of data sharing but a test run by Pirelli, so again, I think Mercedes punishment if anything should not be too severe. If Pirelli wants to claim they didn’t ask Mercedes to bring a 2013 car, I don’t see them hanging Mercedes out to dry on that…’thanks for helping with the test and now we’ll stab you in the back at the tribunal.’ Just don’t see that happening.

    I think it will be found that given that Pirelli had a clause in their contract to test, and it has been pretty obvious to everyone that the tires have been too much the issue this year, I think common sense should prevail and the penalties dished out should not be too severe. F1 wanted these tires, F1 wanted a lack of testing, and FIA allowed a contract clause that Pirelli could test which would require a team do to so, and in spite of the rhetoric about what Mercedes may have theoretically gained from the test, I think said gain was very very minimal in reality and so again, punishment should be minimal.

    I think it has to remain on the forefront that Pirelli are the one’s that needed this test, not Mercedes. Pirelli blew it with their tires this year. Anyone who thinks this started with Mercedes approaching Pirelli to do an underhanded thing, and that Pirelli went along with it and supplied them with tires, is being too conspiratorial.

    Whatever penalty Mercedes might receive, Pirelli imho should receive moreso because this all started with them not ensuring proper tires for the season and therefore needing to do a midseason test. Michelin was raked over the coals for their tires not working at one turn of one venue. Why should Pirelli not be too? Except for F1 mandating these tires as well as the lack of testing of course. ie. FIA/F1 must share some of the responsibility for the circumstances that led up to Pirelli needing to test. Mercedes, imho, should be the least punished.

  42. The penalty for Mercedes should be to pay for the other teams to test 1000 kilometres.

    1. Sure, that’s fair as long as they only bring one car, don’t get to make it a normal F1 team test, the tests are run by Pirelli personel, and no tire data is shared. What should be Pirelli’s penalty for supplying tires to Mercedes? Shouldn’t they have to pony up something too, since it is their tires that aren’t up to snuff and are the reason a test was needed to begin with?

  43. Ryan Fairweather
    20th June 2013, 16:00

    Even if they are let off for the actual testing side of things. The FIA can still play the old “bringing the sport in to disrepute” card which you can argue they have.

    1. Personally I think the mandated shoddy tires and lack of testing that has created delaminations, 4 stoppers, and delta running rather than racing, has brought the sport into disrepute. As has DRS.

      1. Ryan Fairweather
        21st June 2013, 9:52

        I agree, DRS is fake. The whole wheel to wheel action in the last few seasons has been manufactured and the Pirelli tyres are a complete joke.

  44. I really can’t see what Merc have done wrong if Charlie W has given approval whether it be by phone call or emails. Lets look at it in a different way. Lets pretend Merc is young 18 year old boy and Pirelli is some hot 18 year girl Merc and his mates (Fred, Mac & William) fancy. One day Pirelli invites Merc to a party but he’s not sure if he should go so he asks his Mum (Mrs FIA) if he’s allowed to go, Mrs FIA gives him approval to attend the party. Merc decides not to tell his mates about the party as he wants to spend some quality time with Pirelli and after all its not his party so he’s not in a position to tell or invite anyone. Merc attends the party and gets up close and personal with Pirelli but is forced to wear and blindfold so whilst it feels great he can’t remember a thing and whilst his mates are not best pleased with Merc they all know deep down they’d all do the same thing.

    So there you go, I rest my case. Mercedes have done nothing wrong :-)

    1. You can pretend all you like, as the protagonists have been since the beginning in an attempt to obscure the facts but the FIA see right through that. Mercedes gained an illegal advantage. Case closed. The statements from the tribunal in Paris all but confirmed that, with everyone in damage limitation mode. The only questions that remain to be answered are what the penalties will be.

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