61999CC0254_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I - Introduction
A - Factual background to the dispute
1 Following investigations conducted in the polypropylene sector on 13 and 14 October 1983 under Article 14 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty, (1) the Commission of the European Communities commenced an inquiry concerning polyvinylchloride (hereinafter `PVC'). It subsequently undertook various investigations at the premises of the undertakings concerned and sent them requests for information.
2 On 24 March 1988 it instituted on its own initiative a proceeding under Article 3(1) of Regulation No 17 against 14 PVC producers. On 5 April 1988 it sent each of those undertakings a statement of objections as provided for in Article 2(1) of Commission Regulation No 99/63/EEC of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regulation No 17. (2)
All the undertakings concerned submitted observations in June 1988. Except for Shell International Chemical Company Ltd, which had not requested a hearing, they were heard in September 1988.
3 On 1 December 1988 the Advisory Committee on Restrictive Practices and Dominant Positions (hereinafter `the Advisory Committee') delivered an opinion on the Commission's draft decision.
4 On conclusion of the procedure, the Commission adopted Decision 89/190/EEC of 21 December 1988 relating to a proceeding pursuant to Article 85 of the EEC Treaty (IV/31.865, (3) PVC, hereinafter `the PVC I decision'). By that decision, the Commission penalised the following PVC producers for infringement of Article 85(1) of the Treaty (now Article 81(1) EC): Atochem SA, BASF AG, DSM NV, Enichem SpA, Hoechst AG (hereinafter `Hoechst') Hüls AG, Imperial Chemical Industries plc (hereinafter `ICI'), Limburgse Vinyl Maatschappij NV, Montedison SpA, Norsk Hydro AS, Société artésienne de vinyle SA, Shell International Chemical Company Ltd, Solvay et Cie (hereinafter `Solvay') and Wacker-Chemie GmbH.
5 All those undertakings, except Solvay, brought actions to have that decision annulled by the Community judicature.
6 The Court of First Instance declared Norsk Hydro's application inadmissible by order of 19 June 1990. (4)
7 The other cases were joined for the purposes of the oral procedure and the judgment.
8 By judgment of 27 February 1992, (5) the Court of First Instance declared the PVC I decision non-existent.
9 On appeal by the Commission, the Court of Justice, by judgment of 15 June 1994 in Commission v BASF and Others, (6) set aside the judgment of the Court of First Instance and annulled the PVC I decision.
10 The Commission then adopted a fresh decision on 27 July 1994 in relation to the producers who had been the subject of the PVC I decision, with the exception, however, of Solvay and Norsk Hydro AS (Commission Decision of 27 July 1994 relating to a proceeding pursuant to Article 85 of the EC Treaty (IV/31.865 - PVC) (OJ 1994 L 239, p. 14, hereinafter `the PVC II decision'). That decision imposed on the undertakings to which it was addressed fines of the same amounts as those imposed by the PVC I decision.
11 The PVC II decision contains the following provisions:
`Article 1
BASF AG, DSM NV, Elf Atochem SA, Enichem SpA, Hoechst AG, Hüls AG, Imperial Chemical Industries plc, Limburgse Vinyl Maatschappij NV, Montedison SpA, Société artésienne de vinyle SA, Shell International Chemical [Company] Ltd and Wacker Chemie GmbH infringed Article 85 of the EC Treaty (together with Norsk Hydro ... and Solvay ...) by participating for the periods identified in this Decision in an agreement and/or concerted practice originating in about August 1980 by which the producers supplying PVC in the Community took part in regular meetings in order to fix target prices and target quotas, plan concerted initiatives to raise price levels and monitor the operation of the said collusive arrangements.
Article 2
The undertakings named in Article 1 which are still involved in the PVC sector in the Community (apart from Norsk Hydro and Solvay which are already the subject of a valid termination order) shall forthwith bring the said infringement to an end (if they have not already done so) and shall henceforth refrain in relation to their PVC operations from any agreement or concerted practice which may have the same or similar object or effect, including any exchange of information of the kind normally covered by business secrecy by which the participants are directly or indirectly informed of the output, deliveries, stock levels, selling prices, costs or investment plans of other individual producers, or by which they might be able to monitor adherence to any express or tacit agreement or to any concerted practice covering price or market-sharing inside the Community. Any scheme for the exchange of general information to which the producers subscribe concerning the PVC sector shall be so conducted as to exclude any information from which the behaviour of individual producers can be identified, and in particular the undertakings shall refrain from exchanging between themselves any additional information of competitive significance not covered by such a system.
Article 3
The following fines are hereby imposed on the undertakings named herein in respect of the infringement found in Article 1:
(i) BASF AG: a fine of ECU 1 500 000;
(ii) DSM NV: a fine of ECU 600 000;
(iii) Elf Atochem SA: a fine of ECU 3 200 000;
(iv) Enichem SpA: a fine of ECU 2 500 000;
(v) Hoechst AG: a fine of ECU 1 500 000;
(vi) Hüls AG: a fine of ECU 2 200 000;
(vii) Imperial Chemical Industries plc: a fine of ECU 2 500 000;
(viii) Limburgse Vinyl Maatschappij NV: a fine of ECU 750 000;
(ix) Montedison SpA: a fine of ECU 1 750 000;
(x) Société artésienne de vinyle SA: a fine of ECU 400 000;
(xi) Shall International Chemical Company Ltd: a fine of ECU 850 000; (xii) Wacker- Chemie GmbH: a fine of ECU 1 500 000.'
B - Procedure before the Court of First Instance
12 By various applications lodged at the Registry of the Court of First Instance between 5 and 14 October 1994, Limburgse Vinyl Maatschappij NV, Elf Atochem SA (hereinafter `Elf Atochem'), BASF AG, Shell International Chemical Company Ltd, DSM NV and DSM Kunststoffen BV, Wacker-Chemie GmbH, Hoechst, Société Artésienne de Vinyle SA, Montedison SpA, ICI, Hüls AG and Enichem SpA brought actions before the Court of First Instance.
13 Each sought annulment of the PVC II decision in whole or in part and, in the alternative, annulment or reduction of the fine. Montedison Spa also pleaded that the Commission should be ordered to pay damages on account of costs incurred in putting together a guarantee and any other expenses arising from the PVC II decision.
C - The judgment of the Court of First Instance
14 By judgment of 20 April 1999 in Limburgse Vinyl Maatschappij and Others v Commission (7) (hereinafter `the contested judgment'), the Court of First Instance:
- joined the cases for the purposes of the judgment;
- annulled Article 1 of the PVC II decision in so far as it found that Société Artésienne de Vinyle SA had participated in the infringement complained of after the first half of 1981;
- reduced the fines imposed on Elf Atochem SA, Société artésienne de vinyle SA and ICI to EUR 2 600 000, EUR 135 000 and EUR 1 550 000 respectively;
- dismissed the remainder of the action;
- ruled on the costs.
D - Procedure before the Court of Justice
15 By application lodged at the Court Registry on 8 July 1999, ICI brought an appeal pursuant to Article 49 of the EC Statute of the Court of Justice.
16 It claimed that the Court should:
- annul the contested judgment in relation to ICI;
- annul the PVC II decision in so far as it referred to ICI, or, in the alternative, refer the matter back to the Court of First Instance;
- annul the fine, which was reduced to EUR 1 550 000 by the Court of First Instance, or once again reduce the amount;
- order the Commission to pay the costs of the proceedings at first instance and on appeal.
17 The Commission contends that the Court should:
- dismiss the appeal;
- order ICI to pay the costs of the proceedings at first instance and on appeal.
II - Assessment
18 ICI puts forward eight pleas in support of its appeal. The first three concern the power of the Commission to adopt the PVC II decision. They relate, respectively, to the authority of res judicata, the principle non bis in idem and the obligation to adopt decisions within a reasonable time.
A - The doctrine of res judicata
19 Before the Court of First Instance, ICI maintained that the Commission could not adopt the PVC II decision without infringing the authority of res judicata attaching to the aforementioned judgment in Commission v BASF and Others.
20 ICI complains that, in paragraphs 77 to 85 of the contested judgment, the Court of First Instance rejected that argument on the basis of the case-law of the Court of Justice to the effect that the principle of res judicata extends only to those points of fact and law which were actually or necessarily settled by the judicial decision. (8)
21 It argues that the final and binding nature of the judgment in Commission v BASF and Others is clear from the structure of that judgment itself, in which the Court of Justice, having set aside the judgment of the Court of First Instance, decided to give `final' judgment on the dispute pursuant to Article 54 of the EC Statute of the Court of Justice. The appellant emphasises that the Court then examined not the appeal by the Commission but `the actions for annulment brought before the Court of First Instance against the Commission's decision'. In its judgment annulling the PVC I decision for breach of essential procedural requirements, the Court of Justice thus gave final judgment not only in respect of procedural questions but also in relation to all the matters raised by the undertakings at first instance and heard on appeal by the Court of Justice, this being fully in accordance with the jurisdiction and duty of the Court in an appeal. It is significant in that respect that the Court did not require the Commission, expressly or impliedly, to take a second decision. Accordingly, all matters in dispute became res judicata, so that, by taking the PVC II decision, the Commission usurped the powers of the Court of Justice. (9)
22 What are we to make of that argument?
23 As the Commission very sensibly points out, the fundamental point, in the present case, is not whether the Court has given `final judgment', but in what respect its judgment is final. All that may be inferred from the fact that the Court, pursuant to Article 54 of its Statute, has given a final ruling in the dispute, is that the state of the proceedings so permitted, within the meaning of that provision.
24 That means that the Court was in possession of all the information it needed to give a ruling on the dispute with which the Court of First Instance's judgment was concerned, namely the validity of the PVC I decision which was contested before it, and that it gave a final judgment on the matter; moreover, attention is drawn to that fact by the appellant.
25 For that purpose, it relied on the information it considered necessary. On the other hand, it is not apparent from Article 54 of the Statute, to which the appellant refers, or from any statement contained in the aforementioned judgment of the Court of Justice, that it necessarily also settled matters of law or of fact on which a decision was not necessary for settlement of the dispute.
26 On the contrary, in paragraph 78 of its judgment in Commission v BASF and Others, the Court expressly held that `the decision must therefore be annulled for infringement of essential procedural requirements without it being necessary to examine the other pleas raised by the applicants'.
27 It could not be stated more clearly that a ruling did not need to be given on the other pleas and that it was not given. The appellant's argument is tantamount to giving the Court's judgment the exact opposite effect since it implies, on the contrary, that the Court had adjudicated on all the pleas raised, without confining itself to the single plea which it considered sufficient for deciding whether the decision was valid.
28 ICI's view is also inconsistent with the case-law of the Court of Justice, according to which, where a measure adopted by an institution has been annulled by the Court, the institution is required, in order to comply with the judgment, to have regard to the operative part of the judgment and also to the grounds which constitute its essential basis. (10)
29 In this case, as we have seen, it is apparent from the grounds of the judgment in Commission v BASF and Others that the Court held that the contested decision should be annulled solely because it infringed essential procedural requirements, without it being necessary to examine the other pleas raised.
30 Contrary to ICI's argument, recalled in point 21 above, the Court therefore left the way open for the Commission to fulfil its obligation under Article 176 of the EC Treaty (now Article 233 EC) to take steps to comply with the Court's judgment by adopting a fresh decision in accordance with its Rules of Procedure.
31 The appellant's argument that it is significant that the Court of Justice did not refer the case back to the Court of First Instance or to the Commission is not persuasive.
32 Where, as in this case, the Court of Justice holds that the state of the proceedings in a dispute permits judgment to be given, within the meaning of Article 54 of the EC Statute, it necessarily follows that it will not refer the case back to the Court of First Instance. However, that in itself does not give any indication of the scope of the pleas disposed of by the Court of Justice. If the Court has all the information it needs to give judgment, that does not mean, in any way, that it must necessarily examine all the pleas raised in order to resolve the dispute before it.
33 As regards the failure to refer the case back to the Commission, that is also very easily explained. The Commission enjoys a degree of latitude when implementing the Community competition policy. Therefore, the annulment of its decision did not impose any obligation on the Commission to adopt a fresh one; it only conferred on it the power to do so, in compliance with the Court's judgment. The Court did not, therefore, have to refer the matter back to the Commission; if the position were otherwise, the Commission's prerogatives would not be observed.
34 Furthermore, it is apparent from the above that, by adopting a fresh decision, the Commission did not adversely affect the institutional balance established by the Treaties. It is therefore pointless for the appellant to refer to paragraphs 21 and 22 of the judgment in Parliament v Council, in which the Court stressed that it is important for the institutions to have mutual regard for their respective powers, and that it should be possible to penalise any breach of that rule which may occur.
35 Since none of the appellant's arguments can be upheld this plea should be rejected.
B - Infringement of the principle non bis in idem
36 Before the Court of First Instance, ICI maintained that the Commission had infringed the principle non bis in idem by adopting a fresh decision after the Court of Justice had annulled the PVC I decision.
37 ICI complains that, in justification for its rejection of that plea, the Court of First Instance took into account the fact that ICI was relieved from having to pay the fine imposed by the PVC I decision after the latter had been annulled. In ICI's submission, that fact was not relevant. The salient question was whether the PVC II decision was based on the same conduct as that at issue in Commission v BASF and Others (see the judgment of the European Court of Human Rights of 23 October 1995 in the case of Gradinger v. Austria, Series A, no. 328 C, paragraph 55). That was in fact the case.
38 ICI also takes exception to the Court of First Instance's reliance on the fact that the Court of Justice did not specifically decide all issues and pleas raised by the parties. That, in ICI's submission, is irrelevant. Article 4 of Protocol No 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter `the ECHR') applies to a final conviction. A conviction is final where it is irrevocable, that is to say when no further ordinary remedies are available or where the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them. In this case, ICI had no further remedies available to it after the judgment in Commission v BASF and Others, so that the latter was final for the purposes of applying the non bis in idem principle.
39 The only exception to the non bis in idem principle is that set out in Article 4(2) of Protocol No 7 to the ECHR, whereby reopening of the case is possible, in particular, if there has been a fundamental defect in the previous proceedings, capable of affecting the judgment given. In that respect, the Explanatory Memorandum to Protocol No 7 to the ECHR indicates that Article 4(2) of the latter envisages the case of a fundamental defect capable of affecting the outcome of the case. However, the procedural irregularity which led to the annulment of the PVC I decision, although important, was not such as could be classified as fundamental or affecting the outcome of the case, because the decision which the Commission would have adopted in the absence of procedural irregularity would have been the same as that which it actually took.
40 It is clear from the above that, in the appellant's view, there is a dual dimension to the principle non bis in idem, the applicability of which to Community competition law, as a general legal principle, was acknowledged by the Court of First Instance and is not disputed by the parties, who rightly refer to the rule in Boehringer Mannheim v Commission. (11) In the context of the present case, it means that an undertaking cannot be penalised twice on the same facts and also that proceedings cannot be brought against it twice on the same facts.
41 In this case, it is undeniable that the appellant did not have a double penalty imposed on it. Indeed, the annulment of the PVC I decision meant that the penalty it imposed was eradicated. The fact that the Commission decided to adopt a fresh decision imposing the same fine does not change that position. Ultimately, the conduct with which the two decisions were concerned will have been subject to only one penalty, that imposed in the PVC II decision, which was not added to the previous one but replaced it.
42 In that respect, ICI complains that the Court of First Instance was wrong to hold that ICI was relieved from having to pay the fine after the annulment of the PVC I decision. In actual fact, it would have been required, under the PVC I decision, to pay the fine in 1988 if it had not provided a guarantee. The guarantee was not released until after the PVC I judgment in 1992 and the related costs were not recoverable.
43 The fact must be stated, however, that the Court of First Instance in no way considered that ICI had been relieved from paying the fine. It only stated, correctly, as we have seen, that the undertakings did not have two penalties imposed on them for the same offence.
44 As regards the costs relating to the guarantee, which were incurred because the undertaking chose not to pay the fine at the time it was imposed, these cannot be considered a penalty for the purposes of applying the principle non bis in idem and, moreover, the appellant does not claim that they are.
45 It is also wholly indisputable that the other consequence of the principle non bis in idem has been observed in this case. Indeed, contrary to what the appellant maintains, it was not subject to two sets of proceedings.
46 For that to be the case, it would be necessary, as the Court of First Instance pointed out in paragraph 96 of the contested judgment, for further proceedings to have been brought against ICI after a final judgment had been given as to whether it had committed the infringement. It should be noted that, during the legal proceedings relating to the PVC I decision, neither the Court of First Instance nor the Court of Justice gave any ruling on that point.
47 Accordingly, the situation is not at all similar to the case of acquittal referred to in Article 4 of Protocol 7 to the ECHR, on which the appellant relies.
48 That argument must, therefore, be rejected, without the need even to examine whether that provision and, in particular, the exceptions provided in paragraph 2, are applicable. Indeed, since the present case does not fulfil the requirements for application of the principle, there is no point in analysing the exceptions to it.
49 It follows that this plea should be rejected.
C - Infringement of the principle that decisions must be adopted within a reasonable time
50 ICI subdivides its plea alleging infringement of the principle that decisions must be adopted within a reasonable time into three parts.
The first part: existence of damage as a precondition for the application of this principle
51 ICI states that, in paragraph 121 of the contested judgment, the Court of First Instance acknowledges the existence of a general principle of Community law that decisions following administrative proceedings relating to competition policy must be adopted within a reasonable time. It recalls that Article 6 of the ECHR lays down the reasonable time requirement in relation to any criminal accusation. It maintains that that applies to competition proceedings before the Commission, (12) especially as those proceedings are of a criminal nature.
52 It argues that the Court of First Instance erred in law by holding that a Commission decision may be annulled for infringement of the principle that decisions must be adopted within a reasonable time only if the undertaking can demonstrate that it has suffered damage. In its submission, such a solution is contrary to the settled case-law of the European Court of Human Rights.
53 In that regard, reference should be made to paragraph 122 of the contested judgment, which states as follows:
`Infringement of that principle, if established, would justify the annulment of the Decision however only in so far as it also constituted an infringement of the rights of defence of the undertakings concerned. Where it has not been established that the undue delay has adversely affected the ability of the undertakings concerned to defend themselves effectively, failure to comply with the principle that the Commission must act within a reasonable time cannot affect the validity of the administrative procedure and can therefore be regarded only as a cause of damage capable of being relied on before the Community judicature in the context of an action based on Article 178 and the second paragraph of Article 215 of the Treaty.'
54 This shows that in no way did the Court of First Instance consider that a decision could be annulled for infringement of the principle of reasonable promptitude only if the undertaking could establish that it had suffered damage.
55 It did not, therefore, make annulment of the decision conditional on the existence of damage but on the existence of an infringement of the rights of the defence. On this point, it thus took a similar approach to that of the case-law of the Court of Justice. (13)
56 In support of its claim that on this point the decision of the Court of First Instance is inconsistent with the settled case-law relating to the ECHR, the appellant cites the cases of Eckle and Corigliano. (14)
However, it must be stated that, in those two cases, the question was raised whether a person had to invoke prejudice in order to be regarded as the victim, within the meaning of Article 25 of the Convention, of a violation of his rights. The European Court of Human Rights responded in the negative, on the ground that there could be a violation without prejudice. What were therefore at issue were the conditions for being able to rely on a violation of the principle, not the consequences of a possible violation.
57 Let me reiterate that, in the present case, the Court of First Instance in no way made the possibility of invoking an infringement of the principle conditional on proof of prejudice. It only held that the application of that principle entailed different consequences depending on whether or not infringement of it affected the rights of the defence.
58 The first part of this plea should therefore be rejected.
The second part: failure to take into account the duration of the proceedings as a whole
59 ICI complains that, for the purposes of assessing the duration of the proceedings, the Court of First Instance excluded the time it took for the Court of First Instance and the Court of Justice to examine the case, amounting to about 10 years.
60 It argues that that approach is inconsistent with the rationale behind the right to have a case decided within a reasonable time, which is threefold:
- the need to avoid commercial and financial uncertainty for an unduly long period;
- protection of the right to mount an effective defence;
- the importance of maintaining public confidence in the procedures of the Commission and the supervisory role of the Court.
61 The PVC II decision failed to observe those three requirements. The fact that part of the total time spent was spent in proceedings before the Court of First Instance and the Court of Justice is, ICI submits, irrelevant because it was the Commission itself which caused those proceedings through the procedural irregularities which it committed at the time of the adoption of the PVC I decision.
62 The reasoning followed by the Court of First Instance was, moreover, contrary to Article 6 of the ECHR. In the light of the case-law concerning that provision, (15) it was necessary, in order to assess whether the PVC II decision infringed the principle that decisions must be adopted within a reasonable time, to consider the proceedings `in their entirety'.
63 I do not agree with that analysis.
64 Unlike the appellant, I think it is impossible merely to add together the duration of the administrative proceedings and the duration of the court proceedings in order to determine the duration of the proceedings for the purposes of the principle of reasonable promptitude
65 Such an approach would give rise to a series of paradoxical consequences.
66 Thus, in a complex case in which, by definition, the Commission needs considerable time to establish the matters of law and of fact necessary to provide grounds for its decision, the Community judicature would have only a negligible length of time in which to assess the same complex case; otherwise the aggregate period would be too long!
67 There is reason to doubt whether such a view is conducive to greater protection for the rights of undertakings.
68 That argument is also inconsistent with the guarantee of judicial independence since it implies that the administration might, merely by exploiting the time factor, make it necessary for the court to carry out a speedy examination of the case, lest the undertaking automatically win.
69 Furthermore, judicial protection would then become, for undertakings, a kind of gamble which they would win in almost every possible situation. Indeed, by bringing an action for annulment against the Commission's decision, they would unleash a process in which only a judgment of the Court of Justice rejecting all their pleas could prevent them from prevailing by alleging an infringement of the principle of reasonable promptitude, assuming, of course, that the judgment was delivered sufficiently promptly.
70 In all other situations - annulment of the decision, whether or not followed by the adoption of a fresh decision, or even annulment of the judgment at first instance with reference back to the Court of First Instance - the undertakings concerned would merely need to continue, for as long as necessary, to bring actions while keeping an eye, if I may say so, on the calendar so as to be able, when the time came, to bring an end to the proceedings by playing the trump card of the reasonable time requirement.
71 I would add that, in my opinion, that view fails to take account of the difference between procedure before the Commission and procedure before the Community court.
72 Before the Commission, what is at issue is a set of facts which are attributed to the undertaking and whose correctness and legal significance are, as a rule, the subject of debate. That debate may or may not be followed by the adoption of a decision by the Commission, a decision whose very principle and content fall to a certain extent within the discretion of the Commission, which is responsible for implementing Community competition policy.
73 On the other hand, the Court of First Instance considers a particular legal measure, a Commission decision against which a series of specific complaints are made. The same is true, mutatis mutandis, of the Court of Justice in an appeal. The action must be brought within a given time and the Court is under a duty to decide the case.
74 The fact that, both before the Commission and before the Court of First Instance, undertakings have the right for their situation to be settled within a reasonable time, does not mean that the two procedures may be regarded as being of equal value in the light of that principle and therefore accumulable.
75 Furthermore, an examination of the case-law of the European Court of Human Rights cited by the appellant does not lead to a different conclusion.
76 Thus, the fact that, in the Wemhoff judgment, (16) the European Court of Human Rights held that the period to be taken into consideration in applying the principle of reasonable promptitude lasts, in some circumstances, until a decision is reached on appeal, does not render it necessary to add together the duration of the procedures before the Commission and before the Community judicature.
77 As for the judgment in Garyfallou AEBE v Greece, cited above, it must be stated that it did not concern the aggregation of an administrative proceeding and a legal proceeding, but of proceedings brought before various courts. It cannot therefore be invoked in support of the appellant's argument.
78 It is apparent from the above that the appellant is wrong to criticise the Court of First Instance for not resorting to aggregation.
79 The second part of this plea cannot, therefore, be upheld.
The third part: the principle that decisions must be adopted within a reasonable time was infringed by reason of the sheer duration of the administrative procedure
80 ICI argues that the principle that decisions must be adopted within a reasonable time has been infringed by the mere fact that 52 months elapsed prior to the initiation of the procedure under Regulation No 17. It refers in that respect to judgments of the European Court of Human Rights in cases where, respectively, a period of four years elapsed while a claim was pending before the trial court and a period of 15 months elapsed during a period of preliminary investigation before indictment. (17) It also refers to the judgment in Baustahlgewebe v Commission, (18) concerning delays of 32 months between the end of the written procedure before the Court of First Instance and the decision to open the oral procedure, and 22 months between the close of the oral procedure and delivery of the judgment.
81 ICI states that, according to the Commission, the PVC infringement started in August 1980. The Commission accepted that, by the time it opened its PVC file, ICI's involvement had probably ceased. More significantly, ICI ceased its PVC business in October 1986, at which time it did not know the exact nature of the Commission's allegations. It remained unaware of the nature of those allegations until April 1988, when the Commission notified the Statement of Objections to it, two-and-a-half years after the initiation of the investigation. By that time, however, ICI no longer retained any direct interest in PVC and no longer had access either to the relevant personnel, who had by that time left ICI's employment, or to the pertinent records, which had been routinely destroyed.
82 Despite those circumstances, the Commission took no steps at all between June 1984 and January 1987. That delay inevitably severely undermined ICI's ability to put forward an effective defence, even though such prejudice is not, in ICI's submission, a condition for the finding of an infringement of the duty to take action within a reasonable time.
83 ICI concludes that the period of four-and-a-half years before the formal opening of proceedings must be regarded as a wholly unreasonable length of time and that, contrary to the conclusion reached by the Court of First Instance, the PVC II decision should be annulled on that ground alone.
84 I consider, however, that the question whether the proceedings were excessively protracted in the light of the problems raised is a matter to be assessed by the Court of First Instance. It is a question of fact, to be settled, as the appellant itself states, according to the circumstances of the specific case, which means, furthermore, that it is pointless for the appellant to refer to various delays that have been the subject of case-law of the European Court of Human Rights, since it does not show how the context in which they occurred is comparable to the present situation.
85 It is therefore not possible, in the context of the appeal, to call in question the assessment of the Court of First Instance in that regard. (19)
86 This conclusion is unaffected by ICI's claim that it suffered prejudice as a consequence of the delay caused by the Commission. Let us remember that ICI states, in this context, that, as it no longer had any direct interest in PVC when the proceedings under Regulation No 17 were initiated, it no longer had access either to relevant personnel who had by that time left ICI's employment or to pertinent records which had been routinely destroyed.
87 In that regard, it should be pointed out that the possible existence of prejudice does not deprive the plea raised of its factual nature.
88 Furthermore, I note, as does the Commission, that this claim is hardly specific and that, in particular, ICI does not explain whether it took steps to preserve documents in order to protect its interests and, if not, why not because, from October 1983, the date on which the investigation was carried out on its premises, it knew that there was a possibility of proceedings.
89 Since the appellant's argument regarding the length of the administrative proceedings is, in my view, one based on fact and, therefore, inadmissible, it is only in the alternative that I point out that this argument is, moreover, unfounded.
90 Like the Court of First Instance, I consider that, in order to determine the time to be taken into consideration, a distinction must be drawn between the investigation stage, in the strict sense, and the adversarial stage of the proceedings.
91 At the former stage, no complaint has yet been made against the operators. The Commission may indeed ask them for information but they do not have to defend themselves against any accusation. There is therefore no uncertainty in respect of the substance of any charge against them or, consequently, any material or non-material damage.
92 Furthermore, it must be pointed out in that regard that, before the statement of objections, the only measures taken by the Commission are measures of inquiry. These, as provided for under Regulation No 17, cannot be regarded as an allegation that a criminal offence has been committed.
93 Indeed, the very nature of those measures and their place in the chronology of the taking of the decision show that, at they time they are adopted, the Commission is seeking evidence that will enable it to decide whether there are grounds for bringing proceedings against an undertaking and, if so, the identity of that undertaking, which will not necessarily be the same as the undertakings which have been the subject of measures of inquiry. It is therefore not possible, by definition, to accuse anybody.
94 In other words, the mere fact that an undertaking is the subject of measures of inquiry adopted by the Commission does not mean that it is an accused.
95 The contrast with the situations which have been examined in the case-law of the European Court of Human Rights concerning the beginning of the relevant period, cited by the appellant, (20) is also revealing, assuming that it is appropriate, in this context, to refer to cases where what was at issue was the liberty of the parties concerned, not the application of commercial law to legal persons.
96 The point of departure in those cases was marked by the existence of specific accusations, in general a charge, sometimes accompanied by remand in custody. It is clearly not possible to equate these situations with that of the subject of measures of inquiry adopted even before the statement of objections.
97 Furthermore, it will be seen in that respect that, at this stage in the proceedings, Regulation No 17 imposes on undertakings the obligation to cooperate with the Commission. The Community legislature therefore also considered that, at this stage, the undertaking is not in the position of an accused.
98 It should also be noted that the application of the principle of reasonable promptitude to this stage of the proceedings would have the adverse effect of encouraging undertakings to be as dilatory as possible in fulfilling that obligation because they would know that every delaying tactic on their part would increase their chances of obtaining the annulment of a possible decision for failure by the Commission to observe that principle.
99 As for the Commission, it might be required to inquire into cases within time-limits which would not allow it properly to substantiate its final decision.
100 On the other hand, an undertaking which receives a statement of objections is clearly the subject of a specific allegation. Furthermore, the issue of a statement of objections means that the Commission intends to adopt a decision against the undertaking, representing a change to its situation for the purposes of applying the principle of reasonable promptitude.
101 It is apparent from the above that the Court of First Instance was right to consider that a distinction needs to be made between two phases of the administrative proceedings and that it is therefore impossible merely to invoke their total duration.
102 I would add, also in the alternative, that the above arguments, in my view, justify the conclusion that the principle of reasonable promptitude is not applicable to the first stage of the administrative proceedings, prior to the statement of objections.
103 It is important to point out, in that regard, that it certainly does not follow that individuals do not have any protection against Commission investigations that are excessively long. Indeed, as the Commission rightly points out, the speed at which the Commission deals with competition cases is already subject to an exhaustive series of rules reflecting the principles of legal certainty and the right to a fair hearing, established by Council Regulation (EEC) No 2988/74 of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition. (21)
104 I agree with the Commission's analysis that that regulation enables the Commission and any undertaking concerned to know precisely, in advance, the time-limits within which the Commission is required to act if it intends to impose a fine. Before the expiry of that time-limit, any undertaking which knows that it has participated in an infringement of the competition rules will know that a fine may still be imposed upon it. Caution and common sense will therefore encourage it to take the appropriate measures, including preserving documents and taking witness statements from relevant staff, in order to be able to defend itself if necessary.
105 Similarly, the Commission is able to organise its proceedings in the knowledge that the undertakings concerned will not, or ought not, to be under any illusions that, by lapse of time, they will escape any possibility of a fine.
106 The Commission is also quite right when it adds that the introduction of the principle of `undue delay', to be evaluated according to the specific circumstances of each particular case, in addition to the provisions of the aforementioned regulation, would not meet the requirements of legal certainty.
107 It follows from all the above that the plea alleging infringement of the principle of reasonable promptitude is unfounded or inadmissible in its entirety and must therefore be rejected.
D - The lack of a proper administrative procedure
108 ICI argues that the Court of First Instance erred in law by holding that the PVC II decision was preceded by a proper administrative procedure. Its plea in law comprises two parts.
The first part, alleging invalidity of the measures preparatory to the PVC I decision
109 ICI complains that, at paragraph 189 of the contested judgment, the Court of First Instance held that the judgment in Commission v BASF and Others had not affected the validity of the measures preparatory to the PVC I decision, before the stage at which the defect penalised by annulment was found.
110 ICI maintains that, in reality, procedural steps taken by the Commission prior to the adoption of a decision have no significance independently of the final decision. As the Court of First Instance stated in paragraph 10 of the contested judgment, the PVC II decision was a fresh decision. As such, it required compliance with the procedural guarantees relating thereto. The annulment of the PVC I decision involved nullification of the effects of the measures of administrative procedure prior to the PVC I decision, so that those measures could not constitute the necessary procedural steps for the adoption of the PVC II decision.
111 However, it is not clear why the fact that the validity of the preparatory acts can be contested only in the context of an appeal against the final decision means that the nullity of the final decision extends to those preparatory acts.
112 If such acts cannot be the subject of a separate action for annulment, it is only because, as they do not have a definitive effect, they cannot be regarded as acts having an adverse effect.
113 The question of the effects of the annulment of a decision on the validity of the preparatory acts depends, as the Court of First Instance rightly held, (22) on the grounds of annulment, and the appellant does not dispute this.
114 That statement, which, moreover, merely reflects the application to this case of the general principle of res judicata, is confirmed by the case-law cited by the Court of First Instance. (23)
115 The Court of First Instance was therefore right to hold that it was necessary to determine, in the light of the operative part and of the grounds of the judgment of the Court of Justice in respect of the PVC I decision, the effect of the annulment of that decision on the preparatory acts.
116 That annulment arose from the mere fact that the Commission infringed the procedural rules governing only the detailed procedure for the definitive adoption of the decision. The nullity could not extend to the procedural stages which predated the occurrence of that irregularity and to which those rules were not intended to apply.
117 The situation is therefore similar to that considered in the judgment in Spain v Commission, (24) cited by the Court of First Instance, in which the Court of Justice held that the procedure for replacing the annulled measure could be resumed at the very point at which the illegality occurred.
118 The Court of First Instance did not, therefore, err in law by holding that the nullity of the PVC I decision did not extend to the measures taken prior to the annulled decision.
119 The first part of this plea should therefore be rejected.
The second part, alleging non-compliance with certain prescribed steps of the prior administrative procedure
120 ICI argues that, in any event, adoption of the PVC II decision required a fresh hearing of the undertakings concerned, a fresh report of the Hearing Officer, and a fresh consultation of the Advisory Committee. It also considers that the composition of the file submitted for the deliberation of the College of Commissioners was incomplete.
Hearing
121 ICI complains that, at paragraph 251 of the contested judgment, the Court of First Instance held that a new hearing of the undertakings concerned before the adoption of the PVC II decision would have been required only if that decision had contained objections which were new in relation to those set out in the PVC I decision, as was the case. According to ICI, the undertakings had to be heard not just in the event of there being new objections. They should have had an opportunity to submit observations concerning any objection made against them.
122 Moreover, their right to be heard, both in writing and orally, extended not only to matters of fact but also to matters of law. (25) In paragraph 264 of the contested judgment, the Court of First Instance itself acknowledged that each of the undertakings must be in a position effectively to put its case as to the accuracy and relevance of the facts and circumstances alleged.
123 ICI also refers to the judgments in Italy v Commission and British Aerospace and Rover v Commission. (26) In the latter judgment, the Court of Justice stressed the importance of compliance with the applicable procedures before a further decision was adopted.
124 ICI's right to be heard should have extended to the relevance and implications of the allegations made against it, in the light of the changes in the factual and legal position since 1988. The appellant could have made observations in particular on the principles of res judicata and non bis in idem, the principle that decisions must be adopted within a reasonable time, the matters to be considered by the Hearing Officer, the obligation to consult the Advisory Committee, the implications of Article 20 of Regulation No 17, fines, changes in the factual situation, and on various judgments delivered by the Court of First Instance.
125 The appellant submits that the importance of the right to be heard afresh is evident by analogy with the Rules of Procedure of the Court of First Instance itself, Article 119(1) of which gives the parties an absolute right to lodge further observations in cases where the Court of Justice remits a case to the Court of First Instance for decision after the annulment of a judgment of the latter, notwithstanding that the written procedure would ordinarily have been considered to be complete.
126 A fresh hearing was also warranted by the need for members of the Commission to consider carefully the arguments as to whether it was appropriate to adopt a new decision.
127 Finally, the appellant argues that the need for such a hearing follows from Article 4 of Protocol No 7 to the ECHR, according to which a new decision may be taken only where the case is reopened `in accordance with the law and penal procedure of the State concerned'.
128 It must be pointed out, first of all, that it has already been shown that the measures taken preparatory to the final decision, including the hearing of the undertakings, the proceedings before the Hearing Officer and the meeting of the Advisory Committee, completed before the adoption of the PVC I decision, remained valid.
129 It follows that the undertakings were heard, in accordance with the applicable rules, since they were able to put their case as to the complaints made against them.
130 In that regard, it should be borne in mind that Article 19(1) of Regulation No 17 provides that, before taking its decision, the Commission is to give the undertakings `the opportunity of being heard on the matters to which the Commission has taken objection'.
131 In that regard, Article 4 of Regulation No 99/63 provides that the Commission is to deal, in its decisions, only with those objections in respect of which the undertakings have been afforded the opportunity of making known their views.
132 It is not claimed that the PVC I decision contained objections in respect of which the undertakings were not heard or that the PVC II decision contained objections additional to those contained in the PVC I decision. It follows that, in this case, the regulations did not require the undertakings to be given a fresh hearing.
133 That conclusion is confirmed by the case-law of the Court of Justice (27) which shows that, as the appellant itself points out, the principle of the rights of the defence requires that the person against whom the Commission has initiated an administrative procedure must have been afforded the opportunity, during that procedure, to make known his views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of Community law.
134 Observance of the rights of the defence therefore implies that the undertakings should have been able to put forward their arguments with regard to the acts they are alleged to have committed. On the other hand, it does not go so far as to require that the undertakings should have been consulted on all the other aspects of the Commission's action.
135 It is therefore pointless for the appellant to try to establish, by pointing out that the right to be heard applies not only to questions of fact but also to points of law, that there is an obligation to consult on a series of matters, listed in point 124 above, which are not part of the objections stated by the Commission or of the statement of reasons given to substantiate the statement of objections and cannot, therefore, fall within ICI's right to be heard.
136 The fact, described in detail by the appellant, that some time has passed since the preparatory proceedings, and that there have therefore been developments in the factual and legal situation, does not affect the above conclusions. Indeed, such developments may occur at any time in the proceedings and the Commission cannot be required to arrange a new hearing on every occasion. It is even more the case that such developments do not mean that the Commission is required to amend the decision that it is in the course of taking, which, it should be pointed out, relates to a well-defined period in the past.
137 That applies, for example, to the developments in case-law invoked by the appellant. Those developments have not altered the facts alleged against the appellant, or the evidence of them, or the treatment of them, and they could not, therefore, be relevant to the obligation to give the undertakings the opportunity to state their views in respect of the complaints made against them by the Commission.
138 The possibility that, in consequence of those developments, the validity in law of certain complaints might be affected is, as the Commission points out, a matter completely different from the question whether ICI was able to make known its views about them. If it is found that, owing to those developments, which, let us remember, the Commission does not have to take into account ex ante, the position taken in the statement of objections and in the decision is incorrect in law, the decision will be annulled for misapplication of the Treaty, not for infringement of ICI's right to be heard regarding the complaints made against it.
139 I should also point out, as regards, more specifically, the developments in case-law relating to procedure, that procedural matters, by their very nature, do not usually form part of the statement of objections.
140 As for changes in the factual situation between 1988 and 1994, particularly in market conditions, they too are completely irrelevant, since the decision covers the period from 1980 to 1984, (28) and therefore relates exclusively to the events which took place during that period, in respect of which ICI had every opportunity to express its views when the PVC I decision was adopted on the same facts.
141 I therefore agree with the Commission's analysis that it is not necessary to apply a principle - assuming it exists - according to which decisions may be taken only within a limited period from the date on which the undertakings were given the opportunity to submit their observations. I should point out that, in any event, the limitation rules apply.
142 Furthermore, the appellant is wrong to invoke the precedent in Italy v Commission and British Aerospace and Rover v Commission. Those two judgments did not concern a situation where, as in this case, a new decision relating to the same infringement replaced a decision previously annulled. Rather, they involved a situation where a new decision concerning a fresh infringement was based on an earlier decision relating to a similar infringement. The need for a fresh hearing therefore arose because there were two different infringements, and that is not the case here.
143 The analogy which the appellant seeks to draw with Article 119(1) of the Rules of Procedure of the Court of First Instance is not persuasive either. This is not a situation in which a superior court is referring a matter back for a fresh judgment but a case of annulment of an administrative measure for procedural irregularity. It is that ground of annulment, as we have seen, that fixes the limit of the effects of the annulment and allows, in this case, a new measure to be adopted without the need to repeat steps validly taken.
144 ICI's argument that, in view of the exceptional nature of the adoption of a second decision, it was particularly important for the undertakings to be heard, should also be rejected. It is apparent from what has been stated above with regard to the subject-matter of the hearings granted to undertakings, namely the objections stated against them, that this did not include the matter of the expediency of adopting a decision.
145 Finally, the appellant's reference to Article 4 of Protocol No 7 to the ECHR, which provides that a case may be reopened only `in accordance with the law and penal procedure of the State concerned', does not assist its case at all, even if that provision is assumed to be applicable. This action is specifically concerned with compliance with the applicable law.
146 It follows from all the foregoing considerations that the Court of First Instance was fully entitled to hold that the Commission could adopt the PVC II decision without granting the undertakings a fresh hearing.
The role of the Hearing Officer
147 ICI complains that the Court of First Instance rejected its arguments concerning the intervention of the Hearing Officer without addressing the arguments concerning his role. After citing the functions of the Hearing Officer set out in the Commission decision of 24 November 1990 on the hearings in proceedings relating to Articles 85 and 86 of the EEC Treaty and Articles 65 and 66 of the ECSC Treaty (Twentieth Report on Competition Policy, p. 350), the appellant emphasises that the role thus conferred is an essential one. If no hearing were organised before the adoption of a decision, it would be impossible for the Hearing Officer to carry out his duties and exercise his powers, so that essential questions raised by an undertaking would not be drawn to his attention or, through him, to the attention of the Advisory Committee, the Director-General for Competition, the Member of the Commission responsible for Competition, or the College of Commissioners, contrary to a fundamental requirement of the rights of the defence.
148 It should be pointed out, in that regard, that the role of the Hearing Officer is intrinsically linked to the hearing; accordingly, if, as in this case, there was no obligation to hold a fresh hearing, it necessarily follows that there was also no obligation to call for the further intervention of the Hearing Officer. He was able, in the procedure to adopt the PVC I decision, to exercise all the functions entrusted to him, thus safeguarding the appellant's rights.
Consultation of the Advisory Committee
149 ICI complains that the Court of First Instance, in paragraphs 256 and 257 of its judgment, held that a fresh consultation of the Advisory Committee was unnecessary.
150 The appellant maintains that it is clear from Article 10(3) of Regulation No 17 that separate consultation is required for each separate decision, regardless of whether the undertakings have been heard and regardless of the extent of the similarity between the decisions, and a fortiori where the decision upon which consultation has taken place has been annulled, and was taken a long time earlier.
151 Since the legal and factual position had changed significantly at the date on which the PVC II decision was adopted, and even if, as the Court of First Instance found, the PVC II decision contained only editorial amendments, the Advisory Committee should have been consulted afresh in order to give its views on the appropriateness of adopting a final decision and imposing fines, and the amount thereof.
152 It should be pointed out, first of all, that it has already been established that measures taken preparatory to the decision were not affected by the annulment of the decision. Therefore, the Advisory Committee was properly consulted before the adoption of the PVC II decision.
153 Therefore, the only issue is whether the Commission was under a duty to consult the Committee for a second time.
154 Article 10 of Regulation No 17 expressly provides that the Committee is to deliver an opinion on a preliminary draft decision. It follows that it does not necessarily have to be consulted on the definitive text. Moreover, this is confirmed by the preamble to Regulation No 99/63, according to which the Commission may inquire into the case after the Committee has been consulted.
155 The fact remains that the consultation would be devoid of purpose if the final decision were fundamentally different from the text submitted to the Committee.
156 The Court of First Instance was therefore right to find relevant the fact - which was not disputed by the appellant - that the PVC II decision did not make substantial modifications to the PVC I decision. In the absence of such modifications, the regulation did not require, in my view, that the Committee should be consulted again on a text which was substantially the same as that on which it had already properly given its opinion.
157 The changes of circumstances invoked by the appellant, and also the effect which they may have had on the Committee's appraisals, do not seem to me to be capable of justifying a different solution: given that the period to which the decision related was the same, they are irrelevant.
158 As regards the probable change in the composition of the Committee, that manifestly cannot serve as the basis of an obligation to consult the Committee again.
159 Finally, the parallel which the appellant seeks to draw between the role of the Advisory Committee in the event of renewal, amendment or revocation of an exemption decision has no bearing on the issue. Indeed, such decisions are valid for a different period of time from that covered by the measure which they replace, unlike the situation in the present case.
Composition of the file submitted for the consideration of the College of Commissioners
160 ICI argues, finally, that, as a result of defects in the administrative procedure prior to the PVC I decision, the College of Commissioners was unable to consider all relevant documents, particularly a fresh report of the Hearing Officer and a fresh report on the outcome of consultation of the Advisory Committee.
161 In ICI's submission, the Court of First Instance wrongly based its rejection of the argument on the premiss that the Commission had not erred in law by not hearing the parties concerned afresh. In this case, the College of Commissioners, which was different from the college which adopted the PVC I decision, thus had at its disposal only the submissions of the parties lodged six years earlier, the report of the Hearing Officer drawn up around that time, and the opinion of the Advisory Committee, also dating from 1988.
162 It must be pointed out that, since there was no obligation to hold a fresh hearing or to consult the Advisory Committee, it necessarily follows that there could be no obligation to submit to the College of Commissioners fresh documents relating to those steps.
163 It is apparent from the above that the second part of this plea and, consequently, the whole plea, should also be rejected.
E - Insufficient statement of reasons for the manner in which the Commission proceeded for the purposes of adopting the PVC II decision.
164 ICI recalls that, before the Court of First Instance, it accused the Commission of having, in breach of Article 190 of the EC Treaty (now Article 253 EC), failed to state reasons for, in particular, its procedural decision not to serve a fresh Statement of Objections and hear the parties, the use of documents discovered in the course of a separate investigation and evidence obtained in breach of the right not to give evidence against oneself, and the refusal to grant access to the file. It states that, in paragraph 389 of the contested judgment, the Court of First Instance held that those arguments were essentially concerned only with challenging the validity of the Commission's assessment concerning those various questions, and were relevant only to the examination of whether the decision was justified.
165 ICI argues that, in the present case, the Commission was under no obligation to take a new decision. Its decision to do so without serving a new statement of objections, and with neither a fresh hearing of the undertakings nor fresh consultation of the Advisory Committee, was not only unusual but wholly unprecedented. In those circumstances, the undertakings were entitled to an explanation for the manner in which the Commission chose to proceed. The Commission's refusal to provide that explanation constituted a clear breach of Article 190 of the Treaty. On that point, the appellant relies in particular on the judgments in Groupement des fabricants de papiers peints de Belgique and Others v Commission and Delacre and Others v Commission. (29)
166 The appellant's argument is unconvincing.
167 I should point out, in that regard, that it is settled case-law that the aim of the obligation to state the reasons for an act is to inform the person concerned of the justification for the measure adopted in order that he may contest it if appropriate, and to enable the court to exercise its power of review of the legality of the measure. (30)
168 The contested decision must therefore explain in sufficient detail the nature of the infringement which the person to whom it is addressed is alleged to have committed, the reasons why the Commission considers that it has been committed and the obligations which it intends to impose on the addressee.
169 It is not at all clear from the line of argument developed by the appellant that the Commission failed to fulfil that obligation in the present case. Indeed, ICI does not claim that the text of the decision did not allow it to understand without any difficulty the nature of the complaints made by the Commission or the way in which it justified them.
170 It must therefore be concluded that the appellant has not established that there has been a breach of the Commission's duty to provide a statement of reasons.
171 It should be pointed out, furthermore, that the fact that, in its decision, the Commission did not rebut all the appellant's complaints cannot be regarded as a breach of the duty to provide a statement of reasons, since the conditions set out above are satisfied.
172 Indeed, the obligation to provide a statement of reasons cannot include - lest it paralyse the exercise of any decision-making power - the duty to reject in advance all the complaints which might be made at the litigation stage.
173 In that connection, the Commission correctly cites settled case-law according to which it is not required to discuss, in its decision, all the issues of fact and law which have been raised by an undertaking during the administrative proceedings, (31) and infers, a fortiori, that that consideration applies to arguments put forward for the first time in proceedings for the annulment of the decision in question.
174 Furthermore, if complaints such as those raised by the appellant were proved to be well founded, it would be the justification for the decision that would be at issue. On the other hand, it does not follow that the statement of reasons for the decision did not allow the appellant to understand the measure taken against it and the reasons relied on to justify it, whether correctly or not.
175 The Court of First Instance did not say otherwise in paragraph 389 of the contested judgment, in which it states that the fact that the Commission gives no explanation in respect of the complaints referred to above cannot constitute insufficient reasoning for the decision, since those arguments are essentially concerned only with challenging the validity of the Commission's assessment concerning those various questions. Since such a challenge falls within the scope of an examination of whether the decision was justified, it cannot be relevant to an examination of whether the statement of reasons for the contested measure is adequate or not.
176 Accordingly, the complaint that the judgment is insufficiently reasoned on this point is unfounded.
177 This plea should therefore be rejected.
F - Infringement of Article 20(1) of Regulation No 17
178 ICI recalls that it argued before the Court of First Instance that the Commission had infringed Article 20(1) of Regulation No 17, under which information acquired as a result of the application of Articles 11, 12, 13 and 14 of the regulation `shall be used only for the purpose of the relevant request or investigation', by using as evidence in this case information obtained in investigations carried out in another sector, namely polypropylene.
179 In its submission, the Court of First Instance was wrong to hold that the Commission had not merely introduced documents which it had obtained in another case, but had requested the relevant documents again from the undertakings concerned in the context of authorisations or decisions concerning the PVC case, so that it had not infringed Article 20(1).
180 ICI contends that, even if it was entitled to use the documents in question for the purposes of initiating a new investigation, the Commission could not use them in the latter as evidence, even on the basis of new copies requested in the context of that second investigation. That conclusion is supported by the case-law. (32)
181 In this case, in ICI's view, the infringement of Article 20(1) of Regulation No 17 was particularly serious because the disputed documents used by the Commission as evidence were presented in the PVC I decision as having been decisive.
182 Let me point out at the outset that the Court of First Instance found as a fact that all the relevant documents were requested and obtained by the Commission again within the framework of the PVC inquiry, after it had already used them in connection with the polypropylene inquiry.
183 The Court of First Instance therefore correctly concluded that the problem was confined to the question whether the Commission, having obtained documents in one matter and used them as evidence to open another proceeding, was entitled, on the basis of authorisations or decisions concerning that second proceeding, to request fresh copies of those documents and then use them as evidence in the second matter.
184 The case-law of the Court of Justice (33) unquestionably shows that the Commission is entitled to use documents obtained in one proceeding as evidence to open another proceeding. Furthermore, this is not disputed by the parties.
185 The question then arises to what use the Commission is entitled to put the documents it already has, once the new inquiry has been initiated.
186 In that connection, the Court of Justice stated, in its judgment in Dow Benelux, that Article 20(1) is intended to protect the rights of the defence, which would be `seriously endangered if the Commission could rely on evidence against undertakings which was obtained during an investigation but was not related to the subject-matter or purpose thereof' (paragraph 18).
187 That provision therefore seeks to protect undertakings from the element of surprise which would operate against them if the Commission were allowed to make unlimited use of all the evidence found during an investigation.
188 It therefore supplements the terms of Article 14, and also Article 11, of the regulation, which require the Commission to specify the subject-matter and purpose of the investigation or request for information. According to the case-law, that obligation represents a quid pro quo for the duty of undertakings to cooperate.
189 It is indisputable that undertakings are in no way deprived of that protection if the Commission requests a document again. Indeed, undertakings are then, from the point of view of the protection of their rights, in the same position as if the Commission did not yet have the document (with the sole exception that the Commission knows exactly what it has to ask for).
190 It follows that the limits that the Court of Justice wished to impose on the use of those documents consist in making it impossible to use them as evidence unless they are covered by the safeguards provided by Regulation No 17, namely the substantive and procedural conditions contained in Articles 11 and 14 of the regulation, compliance with which is subject to review by the Community judicature. In other words, it is a matter of preventing the Commission from by-passing those guarantees by (re)using the documents in another context, without following the preliminary procedures in that new context, thus depriving the undertakings of the safeguards provided by the regulation.
191 On the other hand, it would be wholly out of proportion with that objective to require the Commission, once the new proceeding had been initiated, to consign to oblivion the document which indicated the need to initiate it. Furthermore, it is hard to imagine, in practice, what form should be taken by the new inquiry conducted by the Commission, compelled as it would be to undergo `acute amnesia', to echo the expression used by the Court of Justice in its judgment in Asociación Española de Banca Privada and Others, cited above.
192 As the Commission points out, it would be totally paradoxical if it were able, on the basis of documents discovered accidentally in connection with one proceeding, to open another, without ever examining and investigating - within the context of the second proceeding - the very documents which prompted its initiation.
193 It follows from all the above that the rights of the defence do not preclude the Commission from asking again for the documents which came to its attention in the course of another proceeding.
194 The case-law invoked by the appellant itself cannot lead to a different conclusion.
195 Thus, so far as concerns the judgment in Dow Benelux, the appellant rightly points out that it is apparent that the Commission cannot use as evidence documents obtained in connection with another proceeding. However, it is clear from the above that this is not what the Commission did in this case. It used those documents as a basis for properly initiating a new proceeding, in connection with which it requested and obtained the relevant documents again.
196 As for the case of Asociación Española de Banca Privada and Others, that does not help the appellant's cause either. In that case, the Court of Justice merely applied the rule in Dow Benelux to the use of information by a national authority. It held that a national authority cannot use as evidence in national proceedings documents disclosed to it under Regulation No 17. However, it stated that the information they contain may be used to assess the expediency of bringing national proceedings, in the course of which proof of their existence may be established again by exercising the powers conferred by national law and in compliance with the safeguards it provides.
197 Finally, in SEP v Commission, the Court of Justice referred to the dicta in Asociación Española de Banca Privada and Others.
198 The plea alleging infringement of Article 20(1) of Regulation No 17 should therefore be rejected.
G - Limitation period for the adoption of a decision
199 ICI recalls that the Court of First Instance did not accept its argument that the Commission's power to impose fines was time-barred under Regulation No 2988/74. It complains of the fact that the Court held that the actions challenging the PVC I decision had suspended the limitation period, pursuant to Article 3 of Regulation No 2988/74.
200 In its submission, the suspension of the period provided for by that article in the event of a legal action being brought is not concerned with challenges to the final decision but with challenges to decisions made during the course of the administrative proceedings, as is shown by the reference to Article 3 appearing in Article 2(3) and by the reference to `suspension of the limitation period in proceedings' in both the heading and the text of Article 3, since that expression does not relate to the final decision itself.
201 In the appellant's submission, the use of the definite article `the' in the expression `the decision of the Commission' in Article 3 shows that that expression must refer to a decision mentioned in Article 2, namely a decision under Article 11 or Article 14 of Regulation No 17.
202 Finally, since Article 3 or its equivalent did not form any part of the Commission's proposal for a regulation, there is no reasoning in the recitals to Regulation No 2988/74 specific to the addition of Article 3. If Article 3 were to have such dramatic consequences as those for which the Court of First Instance contends, separate recitals would have been included in the regulation in order to justify that provision.
203 ICI also considers that the interpretation adopted by the Court of First Instance is inconsistent with its own statement that the purpose of Article 3 is to enable the limitation period to be suspended where the Commission `is prevented from acting for an objective reason not attributable to it'. The bringing of an action against a final decision of the Commission imposing fines does not in any way prevent the Commission from adopting a decision of that type. Such an action does not even prevent the Commission from enforcing the fine, since a final Commission decision is fully enforceable until such time as it is annulled or declared non-existent by the Court.
204 ICI also argues that the interpretation by the Court of First Instance is inconsistent with the principle of Community law that a party may not benefit from its own wrongdoing.
205 However, the consequence of this last argument is that suspension of the limitation period can apply only in the absence of any wrongdoing on the part of the Commission, that is to say, when the action against the Commission decision is dismissed. In fact, it is to be supposed that any annulment is the consequence of the Commission's wrongdoing. However, it is precisely in the absence of annulment that it is pointless to invoke the limitation period.
206 That argument also detracts from the appellant's contention that suspension of the limitation period applies in the event of annulment of decisions other than the final decision. In fact, such annulments are also due to wrongdoing on the part of the Commission.
207 ICI's argument alleging that the Court of First Instance is inconsistent in its reasoning is no more convincing. Indeed, the preclusion to which it refers is that which arises where, as in this case, the Commission decision is annulled and, in the absence of suspension, the length of the court proceedings results in the right of action being time-barred, which therefore prevents the Commission from taking action against the offence to which the decision related.
208 The appellant's various textual arguments do not reinforce its thesis; indeed, they undermine it.
209 The wording `in proceedings' does not in any way seek to exclude the measure which constitutes the object and culmination of the proceedings, that is, the final decision, but quite simply to place the provision within the context of the distinction made by the regulation between time-barring of the right to bring proceedings and time-barring of the right to enforce the decisions taken.
210 The use of the definite article `the' in Article 3 is explained by the fact that the regulation relates to a specific decision, namely the decision which is the subject-matter of an action. On the other hand, as the Commission points out, if the regulation had intended to refer to a decision covered by Article 2, it would have had to use the expression `any' decision or `a' decision, since Article 2 refers to numerous decisions, not to one specific decision, which is `the' decision.
211 More fundamentally, I do not agree with the appellant's argument concerning the interdependence of Article 2 and Article 3 of the regulation. Both the title and the wording of Article 3 show that, contrary to the appellant's claims, that provision pursues a different aim from that of Article 2.
212 In fact, it prescribes not an interruption in the limitation period, which would have the effect of making the author of the decision run a risk associated with the length of the proceedings, but a suspension of the limitation period for the duration of the proceedings.
213 Furthermore, for there to be litigation, there has to be a Commission measure open to challenge before the Community court. The `decisions' referred to by Article 3 must, therefore, be challengeable measures.
214 As the Court of First Instance quite rightly pointed out, this is not necessarily the case with regard to the measures covered by Article 2, which lists various measures that do not constitute decisions. Moreover, that is hardly surprising; many measures of inquiry can interrupt the limitation period but are not, in themselves, measures open to challenge.
215 The appellant maintains, however, that the Commission decision finding the infringement and imposing the fine cannot fall within the scope of Article 3.
216 It is apparent from the above that that contention is in no way supported by the wording of that provision.
217 Furthermore, as the Court of First Instance pointed out, the fact that those two provisions pursue different aims precludes the scope of the second from being defined by the terms of the first. The opposite view would disregard the logic of the regulation.
218 Furthermore, the paradoxical consequence of the appellant's argument is that an action against a decision relating to a measure of inquiry would lead, under Article 3, to suspension of the limitation period, whereas an action against the decision imposing the fine would not.
219 The argument put forward by the appellant has a second paradoxical consequence, namely the fact that no provision in the regulation would be applicable to the present case, that is to say the annulment of the decision imposing the fine, which is all the more surprising because the first recital in the preamble to the regulation mentions the need to create a comprehensive set of rules.
220 Admittedly, the appellant tries to avoid that consequence by stating that the implications regarding limitation arising out of a final decision are dealt with in Articles 4, 5 and 6 of the regulation. It thus wholly disregards the fact that a Commission decision which is open to challenge cannot be regarded as final.
221 It also overlooks the fundamental distinction between limitation of the right to bring proceedings and limitation of the right of enforcement.
222 It is undoubtedly clear from the wording of those articles that they apply to the limitation period in respect of the enforcement of a decision. This question can, by definition, be raised only when the decision at issue has not - as in this case - been annulled.
223 It follows that those articles of the regulation are clearly inapplicable to the present case.
224 The appellant also contends that the Court of First Instance's interpretation disregards the maximum duration of 10 years - at the end of which the limitation is established once and for all in spite of possible interruptions - for which provision is made in Article 2(3) of the regulation.
225 However, it must be stated that that provision expressly provides that the 10-year period is to be extended by the time during which the running of time is suspended pursuant to Article 3.
226 I should point out, finally, that there is no objective reason for the appellant's fear that the Commission might take `a series of successive decisions extending into the latter half of the 21st century'. The concatenation of such a series of unlawful decisions would be somewhat of a challenge, or indeed an achievement, since the Commission may reproduce a measure only if the annulment was granted solely on procedural grounds and only after it has resumed the procedure at a point prior to the adoption of the measure found to contain a procedural irregularity.
227 It follows from the above that the Court of First Instance was right to apply Article 3 of the regulation and, accordingly, to hold that the Commission's right to adopt the PVC II decision was not time-barred.
228 The plea alleging that the limitation period had expired should therefore be rejected.
H - Failure by the Court of First Instance to annul or reduce the fine as a result of infringement of the principle of reasonable promptitude
229 ICI complains that the Court of First Instance rejected its claims for annulment or reduction of the fines on the ground of breach of the principle of reasonable promptitude. That rejection was based on the finding that the duration of the procedure followed by the Commission was not unreasonable. ICI argues that, if it were to be accepted that the length of the Commission procedure was indeed unreasonable, the Court of First Instance also erred in failing to take that into account in its assessment of the fine imposed on ICI.
230 Independently of that argument, ICI submits that the fine imposed upon it should be substantially reduced on the ground of the excessive and unreasonable length of the procedure as a whole. It recalls that, in Baustahlgewebe, the fine was reduced by the Court of Justice on the ground that the procedure before the Court of First Instance had been excessively long.
231 The appellant points out that, in that case, the proceedings as a whole lasted approximately 13 years, from the commencement of investigations to the delivery of the judgment of the Court of Justice. In this case, by the time the judgment of the Court of Justice is delivered, the proceedings as a whole could have lasted 19 or 20 years. During that time, ICI will have incurred irrecoverable costs associated with the provision of a guarantee in respect of the fine imposed for the periods corresponding to the PVC I and PVC II decisions and for the duration of the judicial proceedings. The duration of those proceedings, and the consequent burden for the accused undertakings, are without precedent in the history of the Court.
232 On those grounds, ICI submits that the fine imposed upon it should be substantially reduced or annulled.
233 However, it must be stated that this plea rests on the premiss that, in this case, there has been an infringement of the principle of reasonable promptitude. However, it has been explained above that there was no such infringement. It necessarily follows that this plea must be rejected.
234 Since the Court of First Instance correctly held that the principle had not been infringed, its judgment cannot be criticised for not awarding compensation for damage caused by the alleged infringement. Even if the damage were proved, an award of compensation presupposes that the principle was infringed.
235 The comparison drawn by the appellant with the case of Baustahlgewebe v Commission confirms this analysis since, in contrast to the present case, the Court there held that the principle had been infringed and therefore awarded compensation.
236 Accordingly, this final plea should also be rejected and, consequently, the appeal should be dismissed in its entirety.
Conclusion
237 In the light of the foregoing considerations, I propose that the Court should:
- dismiss the appeal;
- order the appellant to pay the costs.
(1) - OJ, English Special Edition 1959-62, p. 87.
(2) - OJ, English Special Edition 1963-64, p. 47.
(3) - OJ 1989 L 74, p. 1.
(4) - Case T-106/89, not published in the ECR.
(5) - Joined Cases T-79/89, T-84/89, T-85/89, T-86/89, T-89/89, T-91/89, T-92/89, T-94/89, T-96/89, T-98/89, T-102/89 and T-104/89 BASF and Others v Commission [1992] ECR II-315.
(6) - Case C-137/92 P [1994] ECR I-2555.
(7) - Joined Cases T-305/94, T-306/94, T-307/94, T-313/94, T-314/94, T-315/94, T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 [1999] ECR II-931.
(8) - Case C-281/89 Italy v Commission [1991] ECR I-347, paragraph 14, and Case C-277/95 P Lenz v Commission [1996] ECR I-6109, paragraph 50.
(9) - Case C-70/88 Parliament v Council [1990] ECR I-2041, paragraphs 21 and 22.
(10) - See, for example, Joined Cases 97/86, 193/86, 99/86 and 215/86 Asteris and Others and Greece v Commission [1988] ECR 2181, paragraphs 26 and 27.
(11) - Case 7/72 [1972] ECR 1281, paragraph 3.
(12) - Case 374/87 Orkem v Commission [1989] ECR 3283.
(13) - Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 49.
(14) - Eur. Court H.R., Eckle judgment of 15 July 1982, Series A no. 51, § 66, and Eur. Court H.R., Corigliano judgment of 10 December 1982, Series A, no. 57, § 31.
(15) - Eur. Court H.R., Garyfallou AEBE v. Greece judgment of 24 September 1997, Reports of Judgments and Decisions 1997-V, p. 1821, § 40 to 43.
(16) - Eur. Court H.R., Wemhoff judgment of 27 June 1968, Series A no. 7.
(17) - Eur. Court H.R., Guincho v. Portugal judgment of 10 July 1984, Series A, no. 81, and Eur. Court H.R., Neumeister v. Austria judgment of 27 June 1968, Series A, no. 8.
(18) - Paragraphs 45 and 46.
(19) - See, as an example of consistent case-law, the judgment in Case C-315/99 P Ismeri Europa v Court of Auditors [2001] ECR I-0000, paragraph 48.
(20) - Judgments in Wemhoff and Neumesiter, cited above.
(21) - OJ 1974 L 319, p. 1.
(22) - Paragraph 184 et seq. of the contested decision.
(23) - See, for example, Asteris and Others and Greece v Commission, cited above.
(24) - Case C-415/96 [1998] ECR I-6993.
(25) - See the judgment of the European Court of Human Rights in Sanchez-Reisse 1986 Series A, No 107, and the judgment in Case T-36/91 ICI v Commission [1995] ECR II-1847, paragraph 69.
(26) - Case C-261/89 [1991] ECR I-4437 and Case C-294/90 [1992] ECR I-493.
(27) - Case 234/84 Belgium v Commission [1986] ECR 2263.
(28) - See paragraph 5 of the decision.
(29) - Case 73/74 [1975] ECR 1491, paragraph 31, and Case C-350/88 [1990] ECR I-395, paragraph 15.
(30) - See, as an example of settled case-law, Case 250/84 Eridania and Others [1986] ECR 117.
(31) - Joined Cases 209/78 to 215/78 Van Landewyck and Others v Commission [1980] ECR 3125, paragraph 66.
(32) - Case 85/87 Dow Benelux v Commission [1989] ECR 3137, Case C-67/91 Asociación Española de Banca Privada and Others [1992] ECR I-4785, and Case C-36/92 P SEP v Commission [1994] ECR I-1911.
(33) - Dow Benelux, cited above.