Opinion of the Advocate General — ECLI:EU:C:1998:364
Date: 1998-07-15
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Action for annulment;Appeal - unfounded
Origin: Belgium

Summary of the Judgment 
1. Competition — Administrative proceedings — Access to the file — Observance of the 
rights of the defence — Infringement — Consequences 
(Regulation No 17, Art. 19(1); Commission Regulation No 99/63, Arts 3 and 7 to 9) 
2. Procedure — judgments — Whether, in respect of cases concerning the same measure, 
the Community judicature is obliged to deliver the judgments on the same date — No 
such obligation 
(Rules of Procedure of the Court of Justice, Art. 43; Rules of Procedure of the Court of 
First Instance, Art. SO) 
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SUMMARY — CASE C-51/92 P 
3. Appeals —Jurisdiction of the Court — Whether it may review, on grounds of fairness, 
the appraisal at first instance of the amount of a fine imposed on an undertaking — 
Excluded 
1. Access to the file in competition cases is 
intended in particular to enable the 
addressees of statements of objections 
to acquaint themselves with the evi­
dence in the Commission's file so that 
on the basis of that evidence they can 
express their views effectively on the 
conclusions reached by the Commis­
sion in its statement of objections. The 
general principles of Community law 
governing the right of access to the 
Commission's file are designed to 
ensure effective exercise of the rights 
of the defence. 
In the case of a decision concerning 
infringement of the competition rules 
applicable to undertakings and impos­
ing fines or penalty payments, breach 
of those general principles of Commu­
nity law in the procedure prior to the 
adoption of the decision can, in prin­
ciple, cause the decision to be annulled 
if the rights of defence of the under­
taking concerned have been infringed. 
In such a case, the infringement com­
mitted is not remedied by the mere fact 
that access was made possible at a later 
stage, in particular during the judicial 
proceedings relating to an action in 
which annulment of the contested 
decision is sought. However, such an 
infringement does not bring about the 
annulment of the decision in question 
unless the undertaking concerned 
shows that it could have used the 
documents to which it was denied 
access for its defence. 
2. No provision requires the Community 
judicature to deliver on the same date 
its judgments on applications for 
annulment of the same measure. On 
the contrary, Article 43 of the Rules of 
Procedure of the Court and Article 50 
of the Rules of Procedure of the Court 
of First Instance make it clear that 
joinder of cases concerning the same 
subject-matter is merely a discretionary 
power and that, having once been 
joined, cases may subsequently be 
disjoined. 
3. It is not for the Court of Justice, where 
it is deciding questions of law in the 
context of an appeal, to substitute, on 
grounds of fairness, its own appraisal 
for that of the Court of First Instance 
adjudicating, in the exercise of its 
unlimited jurisdiction, on the amount 
of a fine imposed on an undertaking by 
reason of its infringement of Commu­
nity competition law. 
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