61999CC0244_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
I - Introduction
A - Background to the dispute
1. Following investigations conducted in the polypropylene sector on 13 and 14 October 1983 pursuant to Article 14 of Council Regulation No 17 of 6 February 1962, first regulation implementing Articles 85 and 86 of the Treaty, the Commission of the European Communities commenced an inquiry on 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 Regulation No 17. 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. At the end of the proceeding, 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, 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.
7. The other cases were joined for the purposes of the oral procedure and the judgment.
8. By judgment of 27 February 1992, 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, set aside the judgment of the Court of First Instance and annulled the PVC I decision.
10. The Commission thereupon 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 94/599/EC 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 Hydro Norsk ... 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) Shell 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 the annulment of the PVC II decision in whole or in part and, in the alternative, the 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 (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, 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 29 June 1999, DSM NV and DSM Kunststoffen BV (hereinafter DSM' or the appellant') appealed pursuant to Article 49 of the EC Statute of the Court of Justice.
16. They claim that the Court should:
- annul the contested judgment in whole or in part and end the proceedings, or, in the alternative, refer the case back to the Court of First Instance for a resumption of proceedings;
- annul the PVC II decision in whole or in part;
- annul or reduce the fine imposed on the appellant;
- 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 DSM to pay the costs of the proceedings at first instance and on appeal.
II - Assessment
18. DSM puts forward nine pleas in support of its appeal. These should be considered in the order in which they appear in the application.
Plea of res judicata
19. The appellant complains that the Court of First Instance rejected its argument based on an infringement of the authority of res judicata.
20. The Court of First Instance held as follows:
77 The principle of res judicata extends only to the matters of fact and law actually or necessarily settled by a judicial decision (Case C-281/89 Italy v Commission [1991] ECR I-347, paragraph 14, and order of 28 November 1996 in Case C-277/95 P Lenz v Commission [1996] ECR I-6109, paragraph 50).
78 In this case, the Court of Justice found in its judgment of 15 June 1994 that the Court of First Instance had erred in law by declaring Decision 89/190 non-existent and held that the judgment under appeal before it must be set aside (paragraphs 53 and 54). In those circumstances, in accordance with the second sentence of the first paragraph of Article 54 of the EEC Statute of the Court of Justice, the Court decided to give final judgment in the matter, given that the state of the proceedings so permitted (paragraph 55).
79 As a consequence, the Court summarised the applicants' pleas in their actions before the Court of First Instance for the annulment of the 1988 decision in the following terms: "The pre-litigation procedure was defective in a number of ways; the contested decision was not reasoned or was insufficiently reasoned; the rights of the defence were not observed; the evidential basis adopted by the Commission was questionable; the contested decision was contrary to Article 85 of the Treaty and to general principles of Community law; the decision was in breach of limitation rules; it was vitiated by misuse of power; and the fines imposed were unlawful" (paragraph 56).
80 The Court then found that "in support, in particular, of the plea that the contested decision was not reasoned or was insufficiently reasoned", a number of applicants argued "in substance, that the reasons for the decision which had been notified to them probably differed on several points, some vital, from the decision adopted by the Commissioners at their meeting on 21 December 1988" (paragraph 57). The Court also indicated that: "From the Commission's arguments in its defence some applicants also concluded that the decision had not been adopted in two of the languages which were binding, namely Dutch and Italian, since only drafts in English, French and German had been submitted to the College of Commissioners" (paragraph 58). It then went on to state: "In the final stage of their argument, the applicant companies contended that Article 12 of the Commission's Rules of Procedure had not been observed" (paragraph 59). Finally, it turned to examine "the substance of the plea" (paragraph 61).
81 Having held that the Commission had infringed the first paragraph of Article 12 of its Rules of Procedure by failing to carry out the authentication of the 1988 decision in accordance with that article, the Court concluded: "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" (paragraph 78).
82 It follows that the judgment of 15 June 1994 did not actually or necessarily settle either the other procedural pleas of the applicants before the Court of First Instance or the substantive pleas, or, finally, the pleas in the alternative regarding the amount of the fines.
83 Moreover, according to the first paragraph of Article 54 of the Statute of the Court of Justice "if the appeal is well founded, the Court of Justice shall quash the decision of the Court of First Instance. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Court of First Instance for judgment".
84 The second sentence of that provision does not mean that where the Court itself gives final judgment in the dispute by accepting one or more pleas raised by the applicants it automatically settles all the points of fact and law raised by the latter in the context of the case. To follow Enichem's argument would amount to denying that res judicata has legal force only in relation to those points of fact and law which were actually or necessarily determined.
85 In the light of the above, the plea must be rejected.'
21. I agree with this assessment of the Court of First Instance.
22. It was right to base its reasoning on the definition of the authority of res judicata stemming from the case-law of the Court of Justice.
23. This, contrary to what the appellant states, does not concern only the matter of which pleas may be raised in an appeal against a judgment of the Court of First Instance. Indeed, the principal aim of that case-law, which, furthermore, predates the establishment of the appeal, is to enable the parties to ascertain the precise consequences of the Court's judgment, so that they may fulfil their obligation, under Article 176 of the EC Treaty (now Article 233 EC), to comply with it.
24. It follows, in particular, that, if a decision is annulled, the judgment binds the institution which is the author of the measure only in respect of the matters on which it has expressly or necessarily given judgment.
25. In the present case, the Court held, in its PVC I judgment, that the contested decision should be annulled for infringement of essential procedural requirements, and that it was therefore not necessary to examine the other pleas raised.
26. Accordingly, the Court did not give judgment on these, and left the way open for the Commission to fulfil its obligation under Article 176 of the Treaty to take steps to comply with the Court's judgment by adopting a fresh decision in accordance with its Rules of Procedure.
27. However, the appellant argues that it is necessary to take account of the fact that this is a criminal charge' within the meaning of Article 6(1) of the convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter the European Convention on Human Rights' or ECHR'); under the convention the judgment of the Court shall be final. It is inconsistent with that provision for the Commission to be able, following the annulment of its decision, to adopt a new one.
28. However, the Commission points out, rightly in my view, that Article 6 concerns the length of the proceedings, not the matter of which factual or legal points should be regarded as having been decided by a judicial ruling.
29. The appellant also relies on the second paragraph of Article 174 of the EC Treaty (now the second paragraph of Article 231 EC), from which it infers that an institution may repair the defects established in a judicial decision only in the case of regulations. By contrast, there is no such second chance' for decisions.
30. That assessment is based on an incorrect view of the scope of that provision. It does not apply to the issue in this case, namely the obligations of an institution whose decision has been annulled and which must take the appropriate steps, in accordance with what has been decided in the judgment pronouncing the annulment.
31. On the contrary, it relates to the completely different question - which is not raised in this case - of whether the Court may retain some of the effects of the annulled measure.
32. The question at issue in this case, namely, I repeat, the determination by the institution of the consequences of the annulment of its measure, is governed, as the Commission rightly points out, by Article 176 of the Treaty.
33. The appellant also quotes the Court's reference, in its PVC I judgment, to Article 54 of the Statute, pursuant to which it had decided that the state of the proceedings in the dispute permitted judgment to be given and had therefore given a final ruling.
34. It is true that the Court thus gave final judgment on the dispute concerning the validity of the contested decision. It considered that it was able to do so since it had found that the Commission had infringed its Rules of Procedure and that finding alone was sufficient grounds on which to annul the decision. There was therefore no need to refer the case back to the Court of First Instance.
35. However, that provides no ground for the inference drawn by the appellant, that the Court therefore prevented the Commission from adopting a new decision. On the contrary, it expressly stated, as we have seen, that it did not consider it necessary to examine the other pleas raised. These cannot therefore be regarded as upheld, even implicitly.
36. Against that background, it is pointless for the appellant to invoke the judgment in Transocean Marine Paint v Commission. It submits that that case, in which the Court of Justice expressly referred the case back to the Commission, shows that, in the absence of an express referral, the effect of the annulment is to prevent the Commission from adopting a new decision.
37. It should be pointed out, however, that Transocean Marine Paint v Commission concerned a different situation. The Commission was considering a request for exemption under Article 85(3) of the EC Treaty (now Article 81(3) EC), to which it was under a duty to respond. Therefore, the annulment of its decision required it to adopt a new one. It was therefore logical for the Court to make reference to that when referring the case to the Commission.
38. On the other hand, in the case of a decision finding an infringement, the Commission does not have the same duty to adopt a new decision. Therefore, the Court did not have to use the same formula as in Transocean Marine Paint v Commission.
39. It follows from the above that the plea alleging infringement of the authority of res judicata should be rejected.
Plea alleging infringement of the principle non bis in idem
40. The appellant disputes the rejection, in the contested judgment, of its argument based on the principle non bis in idem. The Court of First Instance relied, in that regard, on the following two considerations (see paragraphs 97 and 98 of the contested judgment).
41. Firstly, it pointed out that the Commission adopted its PVC II decision after the annulment of its 1988 decision and did not, therefore, make the undertakings incur a penalty twice in respect of the same infringement.
42. Secondly, it added that the judgment of the Court of Justice annulling the decision did not give a specific ruling on any substantive plea raised by the applicant. Consequently, by adopting its PVC II decision, the Commission had merely remedied the formal defect found by the Court and had not taken action against the appellant twice in relation to the same set of facts.
43. The appellant points out, in that connection, that, as the Court of First Instance also stated in paragraph 95 of the contested judgment, the said principle prohibits the Commission from imposing two penalties for the same offence and from initiating proceedings for infringement twice in respect of the same set of facts.
44. DSM complains that, in paragraph 96 of the contested judgment, the Court of First Instance stated that the principle invoked meant that the Commission could not bring proceedings against an undertaking or penalise it for anti-competitive conduct which the Court of First Instance or the Court of Justice has already found to be either proven or unproven by the Commission in relation to that undertaking'. In the appellant's submission, the Court of First Instance thus makes application of the principle non bis in idem depend on the grounds on which the decision was annulled: the principle applies if the decision was annulled for lack of proof; on the other hand, it does not apply in any other circumstances, as in the present case, where there has been an infringement of essential procedural requirements. This legal assessment is misconceived because the principle non bis in idem is designed to protect the undertaking against which proceedings have been brought merely against second proceedings and penalties, irrespective of the reason why the first proceedings did not end in a conviction. This interpretation is confirmed by Article 4(1) of Protocol No 7 to the ECHR, which had come into force in the meantime. In Commission v BASF and Others, the appellant had been acquitted' within the meaning of that provision.
45. In the appellant's submission, the Court of First Instance was wrong, in paragraph 97 of the contested judgment, to rule out application of the principle non bis in idem on the ground that the PVC I decision had been annulled by the judgment in Commission v BASF and Others. The effect of that reasoning would be that the principle in question could never be applied, even in the event of annulment for lack of proof, since the legal effect of the annulment is identical in those circumstances. However, a distinction between the grounds for annulment is irrelevant to the first paragraph of Article 174 of the Treaty.
46. The Court of First Instance was also wrong to find, in paragraph 98 of the contested judgment, that, in Commission v BASF and Others, the Court of Justice did not rule on any of the substantive pleas raised' and that the Commission, by adopting the PVC II decision, was merely remedying the formal defects found by the Court'. This reasoning is also misconceived, in that it makes a distinction between the grounds of annulment.
47. Furthermore, the Court of First Instance, by holding that the PVC I decision had never existed, contradicted its reasoning in response to a plea concerning limitation, in paragraph 1 100 of the contested judgment, in which it rejected the claim that the legal effect of the annulment of the PVC I decision had been to prevent suspension of the limitation period, stating that it is the very fact that an action is pending before the Court of First Instance or the Court of Justice which justifies the suspension, and not the conclusions reached by those courts in their judgments'.
48. As regards this last argument, it should be pointed out that the inconsistency is only apparent. The Court of First Instance's reasoning related to two different questions, that is, the conditions of limitation, on the one hand, and the conditions of application of the principle non bis in idem, on the other.
49. It is therefore not at all inconsistent to hold that, from the point of view of limitation, the adoption of a procedural measure may be relevant, irrespective of its content, whereas, in relation to the principle non bis in idem, account must be taken not only of the fact that there is a judgment annulling the measure, but also of the grounds on which it is based.
50. The appellant is also wrong to think that paragraph 96 of the contested judgment is inconsistent with paragraphs 97 and 98. On the contrary, in the two latter paragraphs, the Court of First Instance applied to the case in point the principle which it stated in paragraph 96, in order to show that the principle had not been infringed in the case.
51. Indeed, as the Commission also points out, the Court of First Instance made the applicability of the principle conditional on the establishment of tangible proof of the infringement. If a ruling had been given on this question, the Commission would have been required to take it into account when implementing the judgment, in accordance with Article 176 of the Treaty.
52. However, since the question of the existence of an infringement of competition law had not been the subject of any legal ruling, there was nothing to prevent the Commission from adopting a decision in that regard.
53. It should be pointed out that, contrary to what the appellant seems to think, this new decision was not an addition to the previous one, but a replacement for it. This is not, therefore, a situation in which an operator, who has been prosecuted and penalised once, is then prosecuted and penalised again. That would be in breach of the principle non bis in idem.
54. In this case, there has been only one procedure culminating in a decision. When that decision disappeared following its annulment, it was replaced, without a new procedure being opened, by another decision, which is the only measure penalising the set of facts in question.
55. The appellant is also wrong to consider that it is necessary to apply Article 4 of Protocol No 7 to the ECHR in the sense that the appellant has been finally acquitted or convicted' within the meaning of that provision and is therefore finally immune from any further proceedings.
56. In this case, there was no final decision on the substance of the dispute, but only a judgment finding a formal defect. It is not possible to place these two on the same footing, any more than it is possible to treat an acquittal in the same way as a judgment annulling a measure for a formal defect, to take up the analogy with criminal law, on which the appellant seems to insist. An acquittal, once final, makes it impossible to bring further proceedings, whereas annulment for a formal defect simply means that the accused will be judged again.
57. It follows from the above that the plea alleging infringement of the principle non bis in idem should be rejected.
Plea based on lapse of time
58. The appellant subdivides this plea into six limbs.
59. Under the first limb, it argues that the Court of First Instance infringed Article 6 of the ECHR by not giving a ruling on a plea which the appellant had expressly raised before it, in which it stated that Article 6 was as such applicable to Community proceedings in respect of competition.
60. First of all, it should be pointed out that, even if the complaint were well founded, this would not be an infringement of Article 6 of the ECHR but a breach of the duty of the Court of First Instance to give reasons for its judgment.
61. In any event, I regard the complaint as unfounded. The Court of First Instance - admittedly implicitly, but clearly - expressed its view of the appellant's argument by citing, in paragraph 121 of the contested judgment, its own case-law to the effect that it was necessary to consider whether the Commission had offended against the general principle of Community law requiring it to act with reasonable promptitude, without there being any need to rule on the question whether Article 6(1) of the European Convention on Human Rights is as such applicable to administrative proceedings before the Commission relating to competition policy'.
62. As the Commission rightly states, the Court of First Instance therefore replied to the appellant's argument by holding that what mattered was to determine whether the principle of reasonable promptitude had been observed in this case, and that it was not, on the other hand, necessary to analyse in detail the question of the foundation of the obligation to observe the said principle.
63. The first limb of this plea, alleging failure to respond to the appellant's argument, must therefore be rejected.
64. Under the second limb, the appellant argues that, according to the case-law of the European Court of Human Rights and the judgment in Baustahlgewebe v Commission, the Court of First Instance was not entitled to omit to give a ruling on the applicability or inapplicability of Article 6(1) of the ECHR to Community proceedings in relation to competition law or to redefine the fundamental principle of reasonable promptitude within the meaning of Article 6(1) of the ECHR as a general principle of Community law'.
65. Let us note at the outset that, as we have just seen, the Court of First Instance did, in fact, give a ruling on this question, unlike the Court of Justice in Baustahlgewebe v Commission, where it did not specifically decide whether the requirements related to the observance of the principle of reasonable promptitude arose from a general principle of law or the direct application of the ECHR.
66. The approach taken by the Court of First Instance was also wholly consistent with settled case-law, according to which the observance of fundamental rights forms part of the general principles of Community law whose observance the Court of Justice ensures. The Court of First Instance therefore did no more than apply that case-law, to which, furthermore, it expressly refers in paragraph 120 of the contested judgment, which also draws attention, in that respect, to Article F(2) of the Treaty on European Union, which provides: The Union shall respect fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, as general principles of Community law'.
67. As for the case-law of the European Court of Human Rights, cited by the appellant, this shows only that proceedings relating to competition are not excluded from the substantive scope of Article 6 of the convention, even though that provision refers to civil rights and obligations' and any criminal charge'. On the other hand, it provides no grounds for inferring that, as far as concerns Community proceedings concerning competition, observance of the principle of reasonable promptitude can be guaranteed only by direct application of that provision, excluding the reference to a general principle of Community law.
68. It follows from the above that the second limb of this plea should be rejected.
69. Under the third limb, the appellant claims that the aim of the principle of reasonable promptitude, within the meaning of Article 6 of the ECHR, is to ensure that an accused does not remain for too long under a charge before a ruling is given on its merits. Too long a wait constitutes an additional penalty.
70. DSM considers that, in paragraph 122 of the contested judgment, the Court of First Instance misinterpreted that aim by holding that:
- an infringement of the principle that decisions must be adopted within a reasonable time justified the annulment of the Commission's decision only if it also constituted an infringement of the defence rights of the undertakings concerned;
- where it has not been established that the rights of the defence have been infringed, 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 EC Treaty (now Article 235 EC and the second paragraph of Article 288 EC respectively).
71. In the event of failure to comply with the principle of reasonable promptitude, the appellant argues, what is at issue is an extra prejudice suffered by the accused, not an infringement of the rights of the defence as such.
72. In Baustahlgewebe v Commission, the Court of Justice reduced the fine after finding that a reasonable time had been exceeded. It expressly ruled out the idea that the solution should be found through compensation. It stated that, for the purposes of an annulment of the Commission's decision, the length of the proceedings must have had an influence on the outcome of the case. However, the background to this statement was the fact that, in that case, it was the Court of First Instance which had exceeded a reasonable period, a circumstance for which, theoretically, the Commission could not be blamed.
73. On the other hand, in the present case, it is the Commission itself which is held responsible for a reasonable period being exceeded. In those circumstances, the penalty should be the same as that imposed for other instances of periods being exceeded, for example, the exceeding of the time-limit for bringing an action: the Commission ceases to have competence to bring proceedings after exceeding a mandatory period. At the very least, the additional penalty of too long a wait should be covered by compensation in the form of a significant reduction in the penalty, by means of cancellation or reduction of the fine.
74. What are we to make of this line of argument?
75. First of all, as the Commission maintains, the appellant is clearly wrong in thinking that the Court of First Instance contradicted the case-law in Baustahlgewebe v Commission.
76. On the contrary, in so far as concerns the effect of exceeding the reasonable period on the validity of the contested measure, it took the same approach as the Court of Justice in that case. Accordingly, in paragraph 49 of that judgment, the Court held that the plea alleging failure to observe the principle of reasonable promptitude cannot, in the absence of any indication that the length of the proceedings affected their outcome in any way, result in the contested judgment being set aside in its entirety.
77. The Court thus defined the scope of paragraph 48 of the judgment, in which it stated that the plea alleging excessive duration of the proceedings was well founded for the purposes of setting aside the contested judgment, in so far as it set the amount of the fine imposed on the appellant at ECU 3 million.
78. We see this approach again in the line of reasoning followed by the Court of First Instance, where it considers that excessive length of the proceedings must lead to an annulment if the rights of the defence of the undertaking have been jeopardised, a situation in which there is bound to be a possible effect on the outcome of the proceedings, and to compensation in other cases.
79. Let us note, therefore, that the appellant's argument rests on the premiss, which is not disputed by the Commission, that the Court of First Instance, when hearing the action for annulment against the Commission's decision, should have applied the principle of reasonable promptitude. This consideration requires some thought.
80. Indeed, Article 6 of the ECHR, on which the appellant bases its claim, is clearly designed to establish the right to obtain a judicial determination, since it states the need for an independent and impartial tribunal' and mentions the necessity for judgments to be pronounced publicly. Therefore, this provision cannot automatically be applied to administrative proceedings before the Commission.
81. As for the case-law of the Court of Justice, it should be pointed out that this relates to circumstances in which the Court of First Instance has not observed the principle of reasonable promptitude and that it is therefore part of the same perspective as that covered by Article 6 of the ECHR.
82. In the contested judgment, the Court of First Instance nevertheless assimilated a possibly excessive duration of the proceedings before the Commission to failure of the Community judicature to observe the principle of reasonable promptitude. Was it entitled to do that or should it have concluded that the differences between those two situations required that they should be treated differently for the purposes of applying the principle of reasonable promptitude?
83. In that regard, it should be pointed out that the fact that the administration is required to take its decisions within a reasonable period is already established in Community law. Indeed, both the case-law relating to disciplinary measures in connection with the Community Staff Regulations and the case-law relating to the principle of the protection of legal certainty or the principle of sound administration provide numerous examples.
84. Furthermore, the need to protect operators from long legal uncertainty, which constitutes the rationale of the principle of reasonable promptitude, is present, in my view, just as much in proceedings before the Commission as in those before the Court of First Instance.
85. It is true that the procedure established by Regulation No 17 does not purport to be of a judicial nature. However, the fact remains that the continuous development of the case-law of the Court of Justice and of the practices of the Commission has had the effect of consolidating the judicial aspects of the procedure, at the expense of its administrative nature.
86. Nevertheless, it is necessary to draw a distinction in that regard, as did the Court of First Instance when it determined the period to be taken into consideration, between the inquiry stage, in the strict sense, and the adversarial stage of the proceedings.
87. 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.
88. On the other hand, after receiving the statement of objections, the undertakings concerned are the subject of a formal charge of infringing the competition rules and the procedure therefore becomes somewhat contentious in nature, since the undertakings must be heard.
89. At this stage in the proceedings, the position of the undertakings seems to me comparable to that of an accused in criminal proceedings. They are undeniably subject to a charge and are involved in proceedings which may end in a decision with significant consequences both for an undertaking's finances and for its reputation.
90. As regards this latter point, it is true that, in view of the fact that proceedings before the Commission are not public, the situation is not quite the same as proceedings before a criminal court.
91. It is also undeniable that there are other relevant differences between the position of an undertaking appearing before the Commission and its position before the Court of First Instance. In the first case, no measure likely to cause prejudice has yet been taken against the undertaking. In the second case, on the other hand, such a measure has been taken and the person to whom it is addressed is entitled to know as quickly as possible whether or not it has been taken with good reason.
92. That said, the fact remains that undertakings to which statements of objections are addressed are in a state of uncertainty as to whether a charge will be brought against them.
93. As the appellant points out, it is also apparent from the case-law of the European Court of Human Rights that proceedings relating to competition law may fall within the substantive scope of Article 6 of the ECHR and therefore the principle of reasonable promptitude may be applicable.
94. Must we necessarily infer, as does the appellant, that any infringement by the Commission of the principle of reasonable promptitude must lead to the annulment of the decision in its entirety?
95. Like the Court of First Instance, I do not think so, and that is because of the rationale of the principle in question, on which, indeed, the appellant claims to base its argument.
96. It is not disputed that the rationale of the principle of reasonable promptitude is to protect operators who are the subject of infringement proceedings under Regulation No 17. Therefore, application of that principle must give rise to consequences concerning the degree to which those operators have been affected by the excessive length of the proceedings.
97. It follows that if this did not affect the undertakings' exercise of their rights of defence and did not, therefore, have an influence on the outcome of the proceedings, the application of the principle must result in lesser consequences than in the converse situation.
98. In particular, I cannot see why the Commission's decision, the content of which would have been the same even if its adoption procedure had not been excessively long, should be annulled even so.
99. This is not only to display an excessive regard for formalities, but such a consequence is also out of proportion to the operators' rights, since the prejudice they suffer does not stem from the content of the measure taken but arises only from the moment it is finally adopted.
100. In such circumstances, compensation may reconcile the rights of the undertakings and the general interest which is jeopardised if the infringement committed is not penalised.
101. On the other hand, if it is established that the rights of the defence have been infringed, it is undeniable that the decision must be annulled in its entirety.
102. This solution, rightly found by the Court of First Instance, is, as the Commission maintains and contrary to what the appellant claims, essentially in accordance with the approach taken by the Court of Justice in Baustahlgewebe v Commission. Although the Court of Justice did indeed hold that infringement of the principle of reasonable promptitude should result in the annulment of the contested measure, it expressly limited the scope of the annulment to the fixing of the amount of the fine and specified that, in the absence of any indication that the length of the procedure had affected the outcome of the case, there was no need to annul the rest of the judgment.
103. This solution is essentially the same as that found by the Court of First Instance, which lay in not annulling the decision while leaving the way open for an action for damages for the prejudice possibly suffered due to the excessive length of the proceedings.
104. I should also point out that the idea that a formal defect leads to nullity only if the defect is sufficiently serious is not unknown to Community law in general. On the contrary, it is seen in settled case-law relating to annulment for infringement of an essential procedural requirement and also inspired Article 51 of the Statute of the Court of Justice, which makes the possibility of relying on procedural irregularities as a ground of appeal subject to the condition that they affected the appellant's interests.
105. It is true that, whilst the solution found by the Court of First Instance is essentially in accordance with the judgment in Baustahlgewebe v Commission, the fact remains that it diverges from it considerably in one fundamental respect, for which the appellant does not hesitate to blame the Court of First Instance.
106. In Baustahlgewebe v Commission, the Court of Justice, in practice, itself made an immediate award of compensation to the undertakings concerned in the form of a reduction in the fine. The undertakings were thus relieved of following the normal channels for obtaining compensation for damage resulting from a Community action, namely the proceedings laid down by Article 215 of the Treaty. It follows, in particular, that, in Baustahlgewebe v Commission, the appellant obtained compensation without having to prove prejudice, an opportunity which the Court of First Instance denied to the undertakings concerned in the present case.
107. Furthermore, it is hardly deniable that the remedy proposed by the Court of First Instance does not have the same immediacy as that granted by the Court of Justice.
108. Must it therefore be concluded that it failed to comply with the requirements of the principle of reasonable promptitude?
109. In that regard, it must be pointed out that, by making possible compensation conditional on the bringing of an action to establish liability, the Court of First Instance necessarily considered that the right to compensation was based on that liability. The judgment in Baustahlgewebe v Commission does not show that the Court of Justice intended to make compensation conditional on a finding of liability against a Community institution. In fact, the Court did not examine whether there was wrongful conduct, a prejudice and a causal connection between the two. It merely found that the length of the proceedings was unusual and, on the basis of that fact alone, reduced the amount of the fine imposed.
110. It must therefore be stated that the Court of First Instance, using liability as a basis for compensation, imposed conditions on that compensation which did not stem from the case-law of the Court of Justice and therefore committed an error of law in the application of the principle of reasonable promptitude.
111. That said, the error would only be of consequence if the length of the proceedings had actually been excessive. As the Court of First Instance in any event thought not, its error had no effect on the content of the judgment and cannot therefore in itself lead to the annulment of the judgment. It is therefore necessary to examine whether the Court of First Instance was right to consider that the length of the proceedings had not been excessive.
112. It is in the light of that consideration that we must examine the other three limbs of this plea.
113. Under the fourth limb, the appellant states that the Court of First Instance erred in law in its determination of the length of the reasonable period. It considers that the Court was wrong to hold, in paragraph 123 of the contested judgment, that the period during which it had examined the Commission decision could not be taken into consideration for determining the length of the proceedings before it.
114. The appellant also complains that the Court, in paragraphs 124 and 125 of the contested judgment, subdivided the length of the administrative proceedings into two periods, that is the period between the Commission's preliminary enquiries in November 1983 and the Commission's decision taken in March 1988 to open the file, and the period between the statement of objections on 5 April 1988 and the adoption of the PVC II decision.
115. It states, in that regard, that, according to the case-law of the European Court of Human Rights, the point from which the length of the proceedings is determined is the official notification from the competent authority of the complaint that a criminal infringement has been committed or of measures implying such a complaint and also having significant repercussions on the suspect's circumstances, and includes the total length of the proceedings, including the length of the court action.
116. In the present case, the reasonable period therefore started to run at the beginning of the investigations carried out by the Commission, that is in November 1983, and ended, provisionally, on 20 April 1999, the date on which the contested judgment was pronounced, subject to the later addition of the length of the appeal proceedings.
117. The Commission states in this connection that the Court of First Instance had to give judgment only on the Commission's conduct as reflected in the decision. That conduct can be analysed only for the periods during which the case was pending before the Commission. The Court of First Instance therefore rightly held that these periods were the length of the administrative procedure (from November 1983 to 21 December 1988) and the time between the judgment in Commission v BASF and Others and the decision of 27 July 1994. The intervention of the Court of First Instance and the Court of Justice cannot be attributed to the Commission.
118. I agree with that analysis. Unlike the appellant, I think it is impossible merely to add 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.
119. Such an approach would give rise to a series of paradoxical consequences.
120. 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!
121. There is reason to doubt whether such a view is conducive to greater protection of the rights of undertakings.
122. Furthermore, judicial protection would then become, for undertakings, a kind of gamble which they 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 given sufficiently promptly.
123. 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.
124. This view, in my opinion, fails to take account of the difference between procedure before the Commission and procedure before the Community courts.
125. 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.
126. On the other hand, the Court of First Instance considers a particular legal measure, a Community 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.
127. It is true, as I have stated above, that, in both situations, undertakings have the right for their situation to be settled within a reasonable time. It does not follow, however, that the two procedures may be regarded as being of equal value in the light of that principle and therefore accumulable.
128. The applicant is therefore wrong to criticise the Court of First Instance for not resorting to aggregation.
129. The same applies, in my view, as regards the distinction drawn by the Court of First Instance between the two stages it discerns in the proceedings before the Commission. Contrary to what the appellant claims, it cannot, in fact, be maintained that the requirements of the principle of reasonable promptitude are the same before and after the statement of objections.
130. It must be pointed out, in that regard, that, to use the wording of the case-law of the European Court of Human Rights, the measures of inquiry taken under Regulation No 17 before the statement of objections cannot be regarded as an allegation that a criminal offence has been committed.
131. Indeed, the very nature of those measures and their place in the chronology of the taking of the decision show that, at the time they are adopted, the Commission is not yet in a position to formulate complaints against anybody, but is still seeking facts which will result in the possible adoption of a statement of objections, which will not necessarily be addressed to the undertakings which have been the subject of measures of inquiry.
132. It is also revealing, in that regard, that Articles 11 and 14 of Regulation No 17, which govern, respectively, requests for information and investigations, make a distinction between measures which are merely requested by the Commission and those which are covered by a decision against which actions may be brought. This clearly shows that different measures may have different scope and that, consequently, the fact that some measure of inquiry or other is taken cannot automatically engender the protection of reasonable promptitude.
133. 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, the position of which is thus affected for the purposes of applying the principle of reasonable promptitude.
134. Moreover, as the Commission points out, it is during this second stage that the outcome of the proceedings before it is decided. It has already been shown that, in order to implement the principle of reasonable promptitude, the Court of First Instance had to determine whether the length of the proceedings had had an impact on their outcome. It is therefore logical that, in the application of that principle, the second stage is more important than the first.
135. I even think that the principle of reasonable promptitude is not applicable to the first stage. That is apparent, in my view, from the considerations expounded above relating to the rationale of this principle. As we have seen, it is a question of preventing a person from being kept in uncertainty for a long time in respect of an accusation made against him.
136. It should be noted, in that regard, that 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. Indeed, the very fact that such measures are taken indicates that the Commission is seeking evidence which will enable it to decide whether there are grounds for bringing proceedings against an undertaking and, if so, the identity of that undertaking. It is therefore not possible, by definition, to accuse anybody at this stage.
137. 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.
138. 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.
139. 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.
140. The Court of First Instance was therefore right to consider that, in order to determine the length of the proceedings, a distinction needs to be made between the different stages of the proceedings before the Commission.
141. The fourth limb of this plea should therefore be rejected in its entirety.
142. The fifth limb alleges an incorrect statement of reasons and infringement of the obligation to examine all the criteria for assessing whether the time taken was reasonable.
143. The appellant argues that one of the criteria for assessing whether the time taken is reasonable is what is at stake for the undertakings in the matter. The Court of First Instance examined that criterion only in relation to the period which began with the communication of the statement of objections, thereby completely omitting, without giving reasons, to examine that criterion and also the others, save for the criterion of the complexity of the matter, in relation to the previous period, which the Court had nevertheless itself identified.
144. It has been noted above that this period, which precedes the issue of the statement of objections, is fundamentally different, as regards the principle of reasonable promptitude, from the following stage, for which the Court of First Instance examined the assessment criterion in question.
145. I therefore take the view that there are no grounds for complaining that the Court of First Instance did not examine all of the criteria for assessing whether the length of the proceedings prior to the issue of the statement of objections was reasonable.
146. The appellant's plea alleging that the Court of First Instance failed to state its reasons in that regard is also unfounded. Indeed, in paragraph 132 of its judgment, the Court explained why the second stage of the proceedings was different from the first by pointing out that notification of the statement of objections presupposes that proceedings for infringement are being brought and indicates the Commission's intention to adopt a decision to that effect.
147. It also pointed out that it is only when the statement of objections is issued that an undertaking may acquaint itself with the subject-matter of the proceedings brought against it and the actions which the Commission complains it has committed. It concluded from this that it is of specific interest to the undertakings that the Commission should conduct the second stage of the proceedings particularly promptly.
148. The Court of First Instance gave sufficient reasons for its assessment differentiating between the successive stages of the procedure before the Commission.
149. It is apparent from all the above that the fifth limb of this plea is unfounded.
150. The sixth limb alleges infringement of the legal criteria for assessing whether the length of the period was reasonable.
151. DSM points out that the European Court of Human Rights held that a period of inactivity of more than three years is excessive, without going any further. In its judgment of 28 March 1990 in B v Austria (Series A No 175), a case in which the period had been 33 months, it had established that a criterion of two years was appropriate in criminal matters. A reasonable period cannot therefore exceed two years, according to the settled case-law of the European Court of Human Rights.
152. The appellant claims that the present case has striking similarities to the judgment in Garyfallou AEBE v Greece, relating to a case in which the determination of a criminal charge had taken more than 11 years, a period considered excessive by the European Court of Human Rights.
153. In Baustahlgewebe v Commission (paragraphs 45 to 47), the Court of Justice identified two separate periods of inactivity - in so far as concerned the proceedings before the Court of First Instance - of 32 and 22 months respectively, and held that the proceedings had not satisfied the requirements of reasonable promptitude.
154. DSM states that, in the present case, a period of inactivity by the Commission lasting about 41 months was alleged before the Court of First Instance.
155. The appellant complains that, in paragraph 134 of the contested judgment, the Court of First Instance held, without giving any reasons, that the PVC II decision had been adopted by the Commission within a reasonable period, whereas a period of five years and seven months, that is, 67 months, had elapsed between the PVC I and PVC II decisions. The Court of First Instance therefore also infringed, without stating its reasons, its legal obligation to assess and apply the legal criteria for reasonable promptitude. According to the appellant, the final full-stop was put to this case on 20 April 1999, the day on which the contested judgment was pronounced, so that by that date a period of 15 years and 7 months had elapsed since November 1983, when the period had started to run. Such a delay is, it maintains, excessive in the light of all the criteria.
156. This argument is based on two mistaken premisses. It presupposes that it is necessary to apply the principle of reasonable promptitude to the whole of the proceedings before the Commission, which, as we have just seen, is not the case.
157. Similarly, the calculations, or rather the additions, made by the appellant are relevant only if it is necessary to add together the stages in the proceedings before the Commission and those before the Community judicature, an approach which I think I have also shown to be mistaken.
158. It is also necessary, in that regard, to point out that, in any event, the problems at issue cannot consist in a simple comparison between the total length of the procedure and some prearranged standard. Such an approach fails to have regard to the eminently variable nature of the proceedings in question which may differ both in relation to the number and complexity of the legal and factual issues raised and in relation to the parties concerned. Furthermore, this situation is repeated at all stages, whether administrative or legal, of the proceedings.
159. Against that background, it is absurd to try and define ex ante a sole period of reference against which any proceedings, whatever their individual characteristics, should be measured.
160. It follows that only a casuistic approach can, in practice, make it possible to apply the principle of reasonable promptitude. Instead of mechanically adding together successive periods of time, it is a question, on the contrary, at each stage of the proceedings, of verifying that that stage has been completed within a reasonable period, in the light of what may be expected for the stage in question; in other words, it is necessary to examine each stage of the procedure individually.
161. That is, essentially, what the Court of First Instance did.
162. As regards the obligation of the Court of First Instance to provide a statement of reasons, it is apparent from what I have stated above that the Court gave reasons for the distinctions it made when determining the length of the procedure. Since the fact that the appellant's argument is unfounded is a direct and necessary result of those distinctions, the Court of First Instance did not have to give further reasons on this point.
163. As for the parallel which the appellant seeks to draw with the precedent in Garyfallou AEBE v Greece, this is in any event irrelevant since it follows from that precedent, assuming it is applicable to this case, that a period of 11 years is excessive. No period of that kind of length is relevant to the present case, given that the aggregations proposed by the appellant are misconceived.
164. It is therefore also necessary to reject the sixth limb of this plea.
165. Accordingly, in my view, the plea should be rejected in its entirety.
Plea alleging invalidity of the procedural measures prior to the decision
166. The appellant also argues that the effects of the annulment extend not only to the Commission's final decision but also to all the measures preceding it, which should be regarded as an integral part of the annulled measure.
167. It therefore challenges the assessment made by the Court of First Instance in paragraphs 183 to 193 of the contested judgment.
168. It cites, first of all, the settled case-law according to which the validity of preparatory acts can be assessed only within the framework of an action for annulment against the final measure.
169. The appellant then disputes the relevance of the case-law invoked by the Court of First Instance, on the ground that it related to situations different from the one in this case, namely the annulment of a regulation, directive or State aid decision. Furthermore, that case-law did not exclude the possibility that the annulment of the final decision might affect the validity of the preparatory measures.
170. 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.
171. 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.
172. 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, on the grounds of annulment, and the appellant does not dispute this.
173. 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 and by the case-law invoked by the appellant.
174. Indeed, in the precedents cited by the appellant, the nullity of the Commission's decision arose - unlike in the present case - from a procedural defect affecting measures taken prior to the final adoption of the text and therefore imposed an obligation on the author of the decision to remedy the invalidity affecting the preparatory measures, except in Italy v Commission, in which neither the final decision nor a preparatory measure was annulled.
175. The appellant relies in particular on the judgment of the Court of First Instance in Cimenteries CBR and Others v Commission, in which the Court held that, as a consequence of the annulment of the Commission decision, the whole procedure was unlawful.
176. However, this statement must be placed in the context of the judgment in question. The nullity of the decision was the consequence of the invalidity of the preparatory procedure, namely access to the file, and not, as in this case, the lack of authentication of the final text of the decision. It therefore necessarily followed that, when implementing the judgment annulling the decision, the Commission's task was to take into account the causes of the annulment and to remedy them, if necessary by repeating the procedural measures whose nullity had caused the invalidity of the final decision.
177. The same applies to the other judgments cited by the appellant. Thus, in Transocean Marine Paint v Commission, the partial nullity of the contested decision also arose from the measures taken preparatory to the decision. In British Aerospace and Rover v Commission and Italy v Commission, what was at issue was the adoption by the Commission of new decisions in respect of State aid in the context of disputes relating to the implementation of previous decisions and not the consequences of a judgment annulling a measure.
178. It is true that the judgment in BASF and Others v Commission, also cited by the appellant, concerned the same ground of annulment as the present case, but it certainly does not follow from that that all preparatory measures should be regarded as void.
179. 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.
180. 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 the said rules were not intended to apply.
181. The situation is therefore similar to that considered in the judgment in Spain v Commission, cited by the Court of First Instance, in which the Court of Justice held that the procedure for replacing the annulled measure may be resumed at the very point at which the illegality occurred.
182. 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.
183. This plea should therefore be rejected.
Plea alleging irregularity of the procedure for adopting the PVC II decision
184. In this regard the appellant puts forward an argument divided into two limbs relating, respectively, to the observance of the rights of the defence and consultation of the Advisory Committee.
185. Under the first limb, it claims that, by adopting the PVC II decision without first hearing the undertakings concerned, the Commission infringed the rights of the defence, which it is required to observe when adopting any measure liable to affect them adversely.
186. In the appellant's submission, this assessment is confirmed by the judgment in Cimenteries CBR and Others v Commission.
187. Contrary to the grounds stated in paragraphs 261 to 264 of the contested judgment, the fundamental principle of observance of the rights of the defence cannot be delimited, let alone restricted, by Regulations Nos 17 and 99/63, on account of the precedence of the general principles of Community law over secondary legislation.
188. The Court of First Instance was therefore wrong to hold that the principle merely imposed an obligation to give each undertaking the opportunity to put its case as to the accuracy and relevance of the facts and circumstances alleged, and on the documents' relied on by the Commission in support of its allegation that there had been a breach of Community law.
189. In the appellant's submission, this view is tantamount to denying undertakings the right effectively to express their view on the applicable substantive and procedural rules, the case-law, the economic background, etc., and is inconsistent with the case-law of the Court of First Instance and with that Court's findings in paragraphs 1021 and 1022 of the contested judgment, in respect of access to the file.
190. Accordingly, in this case, the undertakings could have influenced the appraisal of the College of Commissioners by making known their views on the necessity and expediency of adopting the PVC II decision, the lapse of time, the principle non bis in idem and the amendments to the rules applicable to the adoption of decisions.
191. The appellant adds that it could also have relied on the developments in the case-law between the PVC I and PVC II decisions, whether from decisions of the European Court of Human Rights or Community case-law relating to the definition of concerted practices. It mentions in that regard that, in paragraph 27 of the PVC II decision, the Commission had itself referred to a 1991 judgment.
192. DSM claims, in that connection, that the Court of First Instance was wrong to hold that the PVC II decision contained no new complaint in relation to the PVC I decision. On the contrary, a comparison of the two measures reveals numerous differences. Those differences were not merely of drafting, but constituted new facts or circumstances on which the undertakings should have been invited to state their views, without there being any need even to determine whether those new facts were to be classified as objections. The mere fact of those new facts arising is, the appellant argues, sufficient to entail a duty to hear the undertakings.
193. What are we to make of this line of argument?
194. It must be pointed out, first of all, as already shown above, that the validity of preparatory measures completed before the authentication of the text of the decision was unaffected by the annulment of the PVC I decision.
195. It follows that, contrary to what DSM appears to suggest, the undertakings were heard and were able to put their case as to the complaints made against them by the Commission.
196. Therefore, the question is this: was the Commission nevertheless under an obligation to give the undertakings concerned a second hearing?
197. It must be stated that no such obligation arises under Regulation No 17 or Regulation No 99/63. In fact, the clear inference of those provisions is that the Commission must give the undertakings mentioned in the statement of objections the opportunity of being heard on the matters to which the Commission has taken objection.
198. It is also provided 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 stating their views.
199. It follows that, if the Commission's decision does not contain new objections in relation to those which formed the subject-matter of the hearing of the undertakings, the regulations did not require another hearing to be held.
200. In that connection, the Court of First Instance stated, in paragraphs 252 and 266 of the contested judgment, that the appellant does not claim that the PVC II decision contains any new objections.
201. It is true that, in its appeal, DSM disputes this statement. However, I think this is to no avail. At no time does it refer to any objection which is new in relation to the 1988 hearing. Admittedly, it lists a series of textual differences between the PVC I and PVC II decisions; but it does not show how the Court of First Instance's statement that those amendments do not constitute objections is incorrect.
202. The onus is on the appellant to establish the existence of new objections, since the adage actori incumbit probatio is applicable.
203. Instead, it tries to establish that the matter of whether or not the new features in the PVC II decision should be defined as objections is irrelevant. In DSM's view, the mere fact that these new circumstances existed, and that the Commission intended to adopt a new decision, was sufficient basis for an obligation to hear the appellant again.
204. As we have just seen, this claim is not supported by Regulations Nos 17 and 99/63 since these require only that undertakings be given the opportunity to express their views regarding the objections made against them, not every new circumstance.
205. However, the appellant correctly points out that the rights of the defence, observance of which is a general principle of Community law, cannot be restricted by measures of secondary legislation, such as the aforementioned regulations.
206. Does it none the less follow that they should be interpreted as meaning, in the present case, that the Commission is under an obligation to consult the relevant undertakings again? I do not think so.
207. In my view, such a claim reflects, on the contrary, too wide an interpretation of the concept of rights of the defence.
208. That conclusion is confirmed by the case-law of the Court of Justice 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.
209. 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 be consulted on all the other aspects of the Commission's action.
210. In this case the Commission rightly points out that the PVC II decision relates only to acts carried out between 1980 and 1984, in respect of which the undertakings were fully able to express their views.
211. The fact that, since that period, there have been factual and legal developments has no relevance to the rights of the defence, which were guaranteed by the hearing concerning the objections contained in the contested decision.
212. By contrast, the appellant's claim that it should be heard on all the subsequent developments, and on the necessity and expediency of the decision, falls rather within the scope of a right of co-decision which cannot arise from the rights of the defence.
213. I would point out in that respect that the appellant, by requesting, in this case, to be able to make observations on the draft decision, seeks in fact to take a much more active part in the decision-taking process than required by the regulations and the case-law of the Court of Justice. Both the regulations and the case-law require undertakings to have the opportunity to comment on the complaints made against them. On the other hand, they certainly do not provide that the draft final decision should be subject to joint scrutiny by the Commission and the undertakings.
214. On the contrary, it is apparent from the case-law of the Court of Justice that such a claim is inconsistent with the system envisaged by Regulation No 17.
215. The possibility of developments in the case-law with the passage of time does not affect the above conclusions. Such developments, which the applicant has referred to but without any elaboration as to their content, 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 which it is in the course of taking.
216. The same applies to possible amendments, also invoked by the appellant, to the Rules of Procedure of the Commission. These are even less relevant since, by definition, they do not relate to the complaints made against the undertakings.
217. It follows from the above that the first limb of this plea is unfounded.
218. Under the second limb, the appellant states that, pursuant to Article 10(3) of Regulation No 17, the Advisory Committee is to be consulted before any decision concerning infringement proceedings.
219. The reference made by the Court of First Instance to Article 1 of Regulation No 99/63 and to the precedent in Hoechst v Commission is, it maintains, incorrect.
220. It adds that the Court of First Instance also incorrectly held that there were no substantial differences between the two decisions. In fact, the Commission had made several significant amendments. It is clear from the contested judgment that the Court itself acknowledges that, if such amendments had been made, it would have been necessary to consult the Advisory Committee.
221. Finally, the Court failed to take account of the importance of the Commission's obligation to cooperate with the other institutions. Consultation of the Advisory Committee ensures fulfilment of that obligation.
222. 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.
223. Therefore, the only question is whether the Commission was under a duty to consult the Advisory Committee for a second time.
224. It is clear from the recitals to Regulation No 17 that the Commission carries out its task in close conjunction with the authorities of the Member States. Article 10 of the regulation expressly provides that the Advisory Committee is to deliver an opinion on a preliminary draft decision.
225. It follows that it does not necessarily have to be consulted on the definitive text. Moreover, this is confirmed by the recitals to Regulation No 99/63, which provide that the Commission may inquire into the case after the Advisory Committee has been consulted.
226. The fact remains that the consultation has no purpose if the final decision is fundamentally different from the text submitted to the Advisory Committee.
227. The Court of First Instance was therefore entitled to find relevant the fact that the PVC II decision did not make substantial modifications to the PVC I decision. I agree with its assessment in that regard. It is not possible to regard as substantial modifications such as the deletion of two recitals which were present only in one of the language versions or the removal from the list of addressees of undertakings unaffected by the annulment of the previous decision.
228. The same is true of the addition of a reference to case-law in paragraph 27 of the decision, since the reference only confirms the one already included, and of developments relating to limitation, which, in this case, concern neither the truth of the facts alleged nor the main points of the legal assessment made by the Commission.
229. The conclusion reached by the Court of First Instance, that, in the absence of substantial modifications to the decision, it was not necessary for the Advisory Committee to be consulted again, does not constitute an error in law.
230. It is, moreover, confirmed by analogy with the settled case-law of the Court of Justice, according to which the European Parliament must be freshly consulted only when the text finally adopted differs in essence from the text on which the Parliament has already been consulted. I can see no reason not to apply this case-law mutatis mutandis, or even a fortiori, to the consultation of the Advisory Committee.
231. It follows from the above that the second limb of this plea should also be rejected.
232. The plea is therefore unfounded in its entirety.
Plea alleging inadequate statement of reasons
233. The appellant complains that the Court of First Instance gave insufficient reasons, in paragraphs 386 to 390 of its judgment, for rejecting the appellant's plea alleging that the Commission had not fulfilled its obligation to provide a statement of reasons for the contested decision.
234. It states that the decision should have contained reasons for the Commission's delay in adopting a decision, 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 or of evidence obtained in breach of the right not to give evidence against oneself, the refusal to grant access to the file in accordance with the case-law, the imposition of a fine based on an error as to the facts and the conclusion that the PVC I decision remained valid in respect of Norsk Hydro AS.
235. In the appellant's submission, the Court did not give an adequate explanation for its rejection of that argument.
236. The appellant's argument is unconvincing.
237. 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.
238. 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.
239. 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, DSM 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.
240. 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.
241. 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.
242. 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.
243. 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.
244. 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.
245. Accordingly, the complaint that the judgment is insufficiently reasoned on this point is unfounded.
246. This plea should therefore be rejected.
Plea relating to the inviolability of the home
247. The appellant recalls that the Court of Justice held, in its judgments in Hoechst v Commission, cited above, Dow Benelux v Commission and Dow Chemical Ibérica and Others v Commission, that the principle of the inviolability of the home under Article 8 of the ECHR does not apply to commercial premises, but refers to subsequent case-law of the European Court of Human Rights to the effect that the protection granted by that provision is also afforded to business premises.
248. In the appellant's submission, the Court of First Instance was wrong to consider that that development had no direct impact on the solutions adopted in judgments by the Court of Justice.
249. In the present case, the requirements of Article 8 of the ECHR, interpreted in the light of the criteria laid down in Niemietz, were disregarded in two respects: the authority on which an investigation had been carried out at the appellant's premises had been drafted in terms which were too vague and the manner in which the investigation had been carried out had constituted a disproportionate violation of business confidentiality.
250. The Court of First Instance examined those two questions in the light of an incorrect legal criterion, taking as a basis a general principle of Community law' instead of applying Article 8 of the ECHR. It is for that reason that it did not hold that the investigations at issue were unlawful and that the Commission could not therefore use the evidence thus obtained.
251. I have already pointed out that it is clear both from the case-law and the Treaty that it is as a general principle of Community law that the Community respects fundamental rights such the inviolability of the home, enshrined in Article 8 of the ECHR. The Court of First Instance cannot therefore be criticised for having taken the appellant's plea to mean that there had been an infringement of a fundamental principle enshrined in the case-law of the Court of Justice.
252. It would be no different if it appeared that the protection of a fundamental right had been jeopardised because the principle of Community law applied by the Court of First Instance had a narrower scope than the fundamental right alleged to have been infringed.
253. That is what the appellant is seeking to establish in this case by suggesting that the case-law of the Court of Justice applied by the Court of First Instance is superseded by developments in the case-law of the European Court of Human Rights.
254. It relies, for this purpose, on paragraph 30 of the judgment in Dow Benelux v Commission, in which the Court of Justice held that Article 8 of the ECHR did not apply to business premises, and contrasts it with the judgment of the European Court of Human Rights in Niemietz v Germany.
255. However, the appellant passes in silence over paragraph 31 of the judgment in Dow Benelux v Commission, on which the Court of First Instance rightly based the statement made in paragraph 420 of its judgment, which is criticised by the appellant. The Court of Justice expressed itself in the following terms:
None the less, in all the legal systems of the Member States, any intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, must have a legal basis and be justified on the grounds laid down by law, and, consequently, those systems provide, albeit in different forms, protection against arbitrary or disproportionate intervention. The need for such protection must be recognised as a general principle of Community law.'
256. Accordingly, even though the Court of Justice considered that Article 8 of the ECHR did not apply to business premises, it still did not hold that business premises were undeserving of protection; on the contrary, it specified the principles governing that protection.
257. The Court of First Instance therefore rightly held that, since legal persons were, in any event, protected under Community law, developments in the case-law of the European Court of Human Rights on that point did not have direct impact.
258. Furthermore, the appellant does not at any time demonstrate in what respect the principle of Community law invoked by the Court of Justice affords less protection than Article 8 of the ECHR, even read in the light of Niemietz v Germany.
259. In my view, it was hard put to demonstrate it. I do not believe that either a reading of the ECHR or an examination of the case-law cited substantiates such a conclusion.
260. It is sufficient to note in that regard that the criteria used by the Court of Justice include the legal basis of the measure and its justification for reasons provided by law, not forgetting the wording of Article 8(2) of the ECHR which mentions interference ... in accordance with the law' and necessary' in a democratic society.
261. The appellant puts forward two further arguments which, it claims, show that there has been an infringement of its fundamental right in this case.
262. Firstly, it alleges that the authority on the basis of which the investigations at issue were carried out was inordinately general. The wording used did not impose any restrictions on the Commission's action.
263. However, the Court of First Instance rightly pointed out that, under Article 14(2) of Regulation No 17, investigations carried out merely on an authorisation are based on the voluntary cooperation of the undertakings. Where, as in this case, an undertaking has actually cooperated in an investigation carried out on an authorisation, it cannot - without adducing any evidence to show that the Commission has exceeded the cooperation offered by the undertaking - claim that there has been undue interference by the public authority.
264. Secondly, the appellant claims that the conduct of the investigations constituted a disproportionate infringement of business confidentiality.
265. It must be stated, however, that it provides no tangible evidence in support of this claim.
266. It should also be noted that, unlike the confidentiality of its correspondence with its defence lawyer, which is covered by the latter's business confidentiality and which it is not claimed has been affected in this case, the undertaking cannot infer an infringement of business confidentiality from the fact that the Commission obtains copies of a large number of documents.
267. It is only if the Commission's officials infringe their obligation under Article 20(2) of Regulation No 17 not to disclose information acquired by them and covered by business confidentiality that there will be an infringement of that confidentiality. It is certainly not claimed that that was the situation in the present case.
268. It follows from all the above that the plea concerning the inviolability of the home is unfounded.
269. It should therefore be rejected.
Plea alleging infringement of the right not to give evidence against oneself
270. The appellant considers that it is clear from the case-law of the European Court of Human Rights and also, implicitly, from the judgment in Baustahlgewebe v Commission that an undertaking accused of infringing Community competition law has the right not to give evidence against itself.
271. DSM points out that, in its judgment of 25 February 1993 in Funke v France (Series A No 256 A, paragraph 44), the European Court of Human Rights stated that an accused has the right to remain silent and not to give evidence against himself. That was a case in which a person had been convicted in respect of his refusal to submit, at the request of the authorities, documents which could have helped to incriminate him; the Court held that such a conviction was an infringement of Article 6(1) of the ECHR. That judgment therefore means not only that the accused has the right to remain silent but also that he cannot be constrained to produce documents which may be used against him.
272. In that regard, DSM states that, contrary to the view taken by the Court of First Instance, its action concerned not only the questions contained in the Commission's decisions requiring information, which were mentioned in paragraphs 451 to 453 of the contested judgment and to which it had not responded, but also the replies given by ICI, BASF AG, Elf Atochem, Solvay and Shell International Chemical Company Ltd which had been specifically mentioned in the reply and had helped the Commission to gather proof. The appellant claims that the Court therefore wrongly held, in paragraph 453 of the contested judgment, that the illegality of the questions at issue, which was acknowledged in paragraph 451, did not have any impact on the legality of the PVC II decision.
273. DSM also criticises the Court of First Instance for holding, in paragraph 448 of the contested judgment, that the recognition of an absolute right of silence would go beyond what is necessary to preserve the defence rights of undertakings and would constitute a hindrance to the Commission in the accomplishment of its task. By thus refusing to apply Article 6(1) of the ECHR, the Court had made an incorrect assessment. Any restriction of the right arising under that provision would limit the full implementation of the provision. In its judgment in Saunders (No 43/1994/490/572, paragraph 74), the European Court of Human Rights had, furthermore, rejected the defence, offered by a government, that restrictions had been imposed in the public interest.
274. The Court of First Instance was also wrong to hold, in paragraph 448 of the contested judgment, that the undertakings had had every opportunity to put their point of view concerning the documents lodged in infringement of the right invoked, since the prejudice against which that right was intended to offer protection had already been suffered. DSM refers, in that regard, to the judgments mentioned in paragraph 446 of the contested judgment.
275. Observance of the rights of the defence requires that documents obtained in infringement of those rights cannot be used for evidential purposes. The appellant cites, in that respect, paragraph 34 of the order of the President of the Court of Justice in Hoechst v Commission, paragraph 16 of the judgment in Ludwigshafener Walzmühle Erling and Others v Council and Commission and also paragraphs 69 and 74 of the judgment in Saunders, cited above.
276. Finally, it is apparent from paragraph 71 of the last of those judgments that the distinction - made in the judgments to which the Court of First Instance refers in paragraph 449 of the contested judgment - between authorised, factual questions and unauthorised questions, by which the undertaking would be led to admit the existence of the infringement which it is incumbent upon the Commission to prove, is legally incorrect. Indeed, purely factual information could also fall within the scope of the protection of the right not to give evidence against oneself.
277. In the present case, the aforementioned replies given by ICI, BASF AG, Elf Atochem, Solvay and Shell International Chemical Company Ltd could not therefore be used by the Commission for evidential purposes.
278. It should be noted, first of all, that, contrary to the appellant's claims, it is not apparent from any statement contained in the contested judgment that the Court of First Instance considered that its action concerned only the questions which the Commission had put to it and not the replies of other undertakings.
279. The reasoning of the Court of First Instance does not, in fact, make any distinction in that regard. It distinguishes, on the contrary, between the questions which are the same as those at issue in Orkem v Commission - which it considers to be unlawful, and it examines the consequences of that unlawfulness - and the others.
280. Therefore, the appellant's sole complaint against the Court's conclusion that the illegality of certain questions has no impact on the legality of the Commission's decision appears to be unfounded, since the undertakings either refused to answer those questions or denied the facts to which they referred.
281. In fact the Court, in paragraph 454 of the contested judgment, without being contradicted by the appellant's pleadings, held that the undertakings have not identified any answer given specifically to those questions, or indicated the use made of those answers by the Commission in the Decision'.
282. In other words, the Court of First Instance found that the undertakings concerned did not, in actual fact, give evidence against themselves. Therefore, the infringement of the principle had in any event no effect on their ability to defend themselves and, accordingly, was incapable of resulting in the nullity of the decision.
283. It is true that, at the hearing, the appellant disputed paragraph 454 of the contested judgment; however, it did not provide any information in that regard.
284. Leaving aside the matter of whether that issue is admissible, let me point out that the Court's statement is only the inevitable consequence of the statement made in paragraph 452 that the undertakings had either not replied to the unlawful questions in accordance with the case-law in Orkem v Commission, or had denied the facts raised in them, a statement which the appellant seems, furthermore, to confirm in its appeal.
285. There are therefore grounds for believing that the issue raised at the hearing concerns the replies to questions other than those covered by the case-law in Orkem v Commission, which are not the subject of paragraph 454 of the contested judgment.
286. In any event, in the appellant's view the distinction between the replies covered by the case-law in Orkem v Commission and the others is unimportant.
287. The appellant considers that undertakings have a right of silence which no consideration of public interest can restrict. Therefore, even the replies to the questions which were not inadmissible within the meaning of the rule in Orkem v Commission could not be used by the Commission, since they would have been obtained under a power of constraint which infringed the right not to give evidence against oneself.
288. It would follow, even if DSM takes care not to say so expressly, that an undertaking could never be required to provide information to the Commission.
289. Therefore, Article 11(5) of Regulation No 17, which specifically establishes such a power of constraint, would be contrary to that fundamental right.
290. This claim is clearly inconsistent with the case-law of the Court of Justice and the Court of First Instance, which is correctly cited by the latter.
291. It is apparent, in fact, that, if the Commission has the obligation to respect the rights of the defence and cannot therefore require an undertaking to furnish replies by which it would be led to admit the existence of the infringement which it is incumbent on the Commission to prove, the fact remains that Regulation No 17 does not afford the undertaking any right to avoid complying with an investigatory measure on the ground that its results might provide the proof of an infringement of the competition rules which it has committed.
292. On the contrary, the regulation requires the undertaking actively to cooperate, which means that it shall make available to the Commission any information relating to the subject-matter of the inquiry.
293. The appellant argues that the judgment in Orkem v Commission is superseded by the more recent case-law of the European Court of Human Rights, in particular the judgments in Funke v France and Saunders, cited above.
294. However, the Commission points out that this recent case-law is much more moderate than the appellant suggests. It notes, in that regard, that, in Funke v France, what was before the Court was a request by the customs authorities in relation to documents which they suspected, but were not sure, existed, whereas, in the present case, the Commission requested information which it was certain was in the possession of the undertakings concerned.
295. As for the Saunders case, that concerned, according to the Commission, not the obtaining of documents by constraint but the improper use of such information.
296. In any event, there is absolutely no need in this case to examine any further whether the case-law of the Court of Justice is now obsolete because of the development of the case-law of the European Court of Human Rights.
297. For the issue of the right not to give evidence against oneself to be raised, constraint must also have been exercised against an undertaking in order to obtain information used against it or against the other undertakings concerned.
298. However, the appellant is not able to demonstrate anything concrete in that respect. It merely points out that the Commission used the replies given by some of the other undertakings concerned in the proceedings.
299. There are absolutely no grounds for inferring that they were constrained to provide those replies. Even if the replies were given further to requests under Article 11(5) of Regulation No 17, a point on which the appellant gives no details, it does not follow that they were given under constraint.
300. The mere existence of a power of constraint, like the one established by that provision, cannot lead to the conclusion that constraint was actually exercised. On the contrary, the failure, on the part of the undertakings which are the addressees of possible decisions requesting information, to bring any action against those decisions rather warrants the conclusion that those undertakings did not have fundamental objections to those requests.
301. Since it has not adduced any proof in that regard, the appellant cannot therefore claim that, in this case, information has been revealed under constraint.
302. Accordingly, it has not established that its right not to give evidence against itself has been infringed in this case, whatever scope should be attributed to that right.
303. It follows from the above that the plea alleging infringement of the right not to give evidence against oneself should be rejected.
Plea alleging infringement of Article 20(1) of Regulation No 17
304. The appellant points out that, under Article 20(1) of Regulation No 17, 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'.
305. The Commission had used, as evidence in the PVC case, documents obtained in another inquiry, namely the polypropylene inquiry.
306. In the appellant's submission, the Commission had therefore infringed Article 20 of Regulation No 17. The Court of First Instance was wrong to hold that the fact that the Commission had requested the relevant documents again from the undertakings concerned in the context of the PVC case permitted the inference that the regulation had not been infringed.
307. If the Commission, in order to be able to use documents in a procedure other than that in which it had obtained them, had only to request them again in the context of that second procedure, the guarantee of defence rights represented by Article 20 of the regulation would be rendered meaningless.
308. The findings of the Court of First Instance were also inconsistent with the case-law of the Court of Justice, according to which such documents may be used as evidence on which to initiate a new investigation, but not as direct proof of the existence of an infringement in another sector.
309. Furthermore, such a situation would be contrary to the principle of the right to a fair hearing laid down by Article 6 of the ECHR.
310. I note 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.
311. It is true that the appellant disputes the Court's statement that it had not been possible to identify DSM's documents. However, DSM itself states that those documents were also requested again by the Commission.
312. 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.
313. The case-law of the Court of Justice 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.
314. 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.
315. Since the issue here is that the Commission is requesting again a document which it already has and which, moreover, the undertakings not only know is in the Commission's possession but also know the circumstances in which it obtained it, because they themselves sent it to the Commission in the context of a previous proceeding, I cannot see how it is possible to raise the question of infringement of business confidentiality, which Article 20 of the regulation is designed to protect.
316. However, the Court of Justice stated, in its judgment in Dow Benelux v Commission, that that provision is also 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).
317. The 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.
318. 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.
319. It is evident 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).
320. 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 bypassing those guarantees by (re)using the documents in another context, without carrying out the preliminary procedures in that new context, thus depriving the undertakings of the safeguards provided by the regulation.
321. 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.
322. It follows from all the above that neither the rights of the defence nor the principle of the right to a fair hearing precludes the Commission from asking again for documents which came to its attention in the course of another proceeding.
323. The plea alleging infringement of Article 20(1) of Regulation No 17 should therefore be rejected.
Plea alleging infringement of the rules applicable to access to the Commission's file
324. DSM points out that, during the administrative procedure, it did not gain full access to the Commission's file; it was granted access subsequently, at the time of a measure of organisation of procedure taken by the Court of First Instance during the proceedings, except for internal Commission documents and documents containing business secrets or other confidential information.
325. It states that, in paragraph 1021 of the contested judgment, the Court referred to its case-law according to which it is sufficient, for a finding of infringement of defence rights, for it to be established that non-disclosure of the documents in question might have influenced the course of the procedure and the content of the decision to the applicant's detriment. According to DSM, it follows from that case-law that it is not necessary for the non-disclosure of the documents actually to have had an effect. It is enough that such a possibility existed.
326. The appellant also argues that, in paragraph 1022 of the contested judgment, the Court stated that an infringement of the rights of the defence occurring during the administrative procedure cannot be remedied in the proceedings before the Court of First Instance, which cannot be a substitute for a thorough investigation of the case in the course of the administrative procedure.
327. DSM complains that, subsequently, the Court of First Instance, contradicting the premisses thus stated, itself carried out a meticulous examination of the documents to which the undertakings had not had access during the administrative procedure, in order to determine whether their non-disclosure might have influenced the course of the procedure and the content of the decision to the applicant's detriment. In the appellant's submission, the Court of First Instance thus, itself, acted as author of the inquiry and made a rectification a posteriori. Furthermore, it had infringed the very principle which it had laid down, namely that the simple finding that there was a possibility of influence to the appellant's detriment was enough to justify annulment. In those circumstances, the Commission had every interest in denying access to the file, knowing that the position could always be rectified in subsequent legal proceedings.
328. The Court therefore infringed its own case-law and, furthermore, the general principle of equality of arms, to which paragraph 1012 of its judgment refers. According to the appellant, the right of equal access to the file which is to be inferred from Article 6 of the ECHR only has meaning if simple finding of incomplete access to the file results in the annulment of the Commission decision.
329. It is apparent from the above description that the appellant, after having cited with approval the case-law of the Court of First Instance, according to which it is sufficient, for a finding of infringement of defence rights, for it to be established that non-disclosure of the documents in question might have influenced the course of the procedure and the content of the decision to the applicant's detriment, is claiming that a mere finding of incomplete access to the file should result in the annulment of the Commission decision.
330. This claim has no support in the case-law of the Court of First Instance invoked by the appellant. That shows, on the contrary, that it is only when non-disclosure of a document could have harmed the appellant's defence that it may lead to the annulment of the Commission decision. On the other hand, according to that case-law, non-disclosure of a document unlikely to be useful to the undertaking's defence has no impact on the validity of the decision.
331. As the Commission rightly states, access to the file is not an end in itself, but is designed to allow undertakings effectively to exercise their rights of defence. It is therefore logical that, when an irregularity in access to the file has not had any effect on the exercise of those rights, it cannot lead to the annulment of the contested decision.
332. The appellant also refers to the general principle of equality of arms, as cited by the Court of First Instance in paragraph 1012 of the contested judgment, which refers to Solvay v Commission. However, it must be stated that, there too, it was a case only of access to documents which might be useful to the defence.
333. Also, the principle of equal access to the file which, according to the appellant, stems from Article 6 of the European Convention on Human Rights, cannot imply that a Commission decision must be annulled if the exercise of the rights of the defence has not been affected.
334. The Court of First Instance was therefore right to hold, in accordance with its current case-law, that it is only necessary to annul the contested decision if non-disclosure of documents could have had harmful consequences for the appellant.
335. It was therefore perfectly reasonable for the Court to check that that condition was fulfilled in this case. It is hard to see how it could have applied its case-law any other way, if it were not to deprive that condition of all substance.
336. The appellant is therefore in no position to state that the Court of First Instance rectified a posteriori the procedure before the Commission. In fact, it did no such thing. It quite simply satisfied itself as to whether the condition arising under its case-law, the validity of which is not disputed by the appellant, was fulfilled in this case.
337. The appellant, which does not claim in its pleadings that the Court committed an error in the course of that verification, is therefore wrong to complain of the very fact that it carried it out.
338. Admittedly, it was maintained at the hearing that the examination of the documents effected by the Court of First Instance in order to determine whether there had been an infringement of defence rights in this case was based on an incorrect approach.
339. It was argued that the Court, instead of looking at things from the perspective ex ante of the undertaking, took, on the contrary, an ex post approach. In other words, instead of examining whether the undertaking could have used the disputed documents, it analysed whether the undertaking's use of those documents could have culminated in the decision having a different content from that which it eventually had.
340. It is true that, in paragraph 1074 of the contested judgment, the Court states that none of the appellants establishes that the course of the procedure and the Decision might have been influenced, to the applicants' detriment, by failure to disclose documents of which they ought to have had knowledge'.
341. However, in paragraph 81 of its judgment in Hercules Chemicals v Commission, the Court of Justice expressly held that the undertaking concerned does not have to show that, if it had had access to the replies provided by the other producers to the statement of objections, the Commission decision would have been different in content, but only that it would have been able to use those documents for its defence'.
342. Must it therefore be considered that the Court of First Instance did indeed use an incorrect assessment criterion?
343. I do not think so. In analysing documents, the Court also used the terms affected the applicants' defence' (paragraph 1035 of the contested judgment), in what way their defence rights have been affected' (paragraph 1036), affected the undertakings' defence' (paragraph 1041), and contain anything relevant to the applicants' defence' (paragraph 1073).
344. Furthermore, the expression course of the procedure', used in paragraph 1074, itself refers, implicitly, to the undertakings' opportunities to defend themselves during the procedure.
345. Furthermore, reading the explanations given by the Court in respect of that examination unquestionably shows that it examined whether the documents in question would have been of any use at all to the appellant. It did not therefore confine its appraisal to whether the failure to disclose the disputed documents had had an impact on the content of the final decision.
346. In fact, its account had the effect, fundamentally, of showing that the documents concerned, far from providing the appellant with an argument, were either unlikely to be relied upon by the appellant, because of their nature or subject-matter, or, because of their content, liable to confirm the Commission's conclusions, or in any event not to contradict them in the slightest.
347. I therefore consider that the Court complied, in its method of analysis, with the aforementioned case-law of the Court of Justice.
348. Even if that were not the case, it is still for the appellant to prove the existence of documents in respect of which the Court of First Instance was wrong to hold that non-disclosure did not compromise the rights of the defence.
349. It could not just state in abstracto that the Court had followed an incorrect criterion. It was still necessary to prove that the consequence of that error was that a document which the Court had held could not lead to the adoption of a different decision by the Commission could, on the contrary, have been relied upon by the undertakings.
350. Furthermore, it is not possible to interpret the case-law of the Court of Justice as meaning that it is sufficient for the undertaking to state that it could, in theory, have used the document in question for its defence. Clearly - if absurd consequences are to be avoided - it is necessary to establish that the use of the said document by the defence, even if it is impossible to be sure that it would have changed the Commission's opinion, had a reasonable chance of doing so.
351. In any event, the appellant is careful not to identify any document which it could have used for its defence and in respect of which the Court of First Instance had therefore wrongly held that non-disclosure had not resulted in an infringement of the rights of the defence.
352. Accordingly, whatever criterion is followed, the appellant has not established that the irregularity committed in respect of access to the file had the slightest effect on its opportunity to defend itself.
353. It follows from the above that the plea alleging infringement of the right of access to the file should be rejected.
Plea relating to limitation
354. DSM argues that, under Article 2(1) of 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, the five-year limitation period for bringing infringement proceedings is interrupted by any action taken by the Commission for the purpose of the preliminary investigation or proceedings, namely, in particular, written requests for information or decisions requiring that information, authorisations to carry out investigations and decisions ordering investigations, and the commencement of a proceeding and notification of the statement of objections, but that, under Article 2(3) of that regulation, the limitation period shall expire when 10 years have elapsed without the Commission having imposed a fine.
355. Under Article 3 of Regulation No 2988/74, the limitation period is to be suspended only if proceedings are brought against those of the measures mentioned in Article 2 which, being in the form of a decision, are subject to challenge.
356. The absence - in the list of measures which interrupt the limitation period contained in Article 2(1) of Regulation No 2988/74 - of the decision imposing a fine is not by accident or omission, but reflects the express intention of the legislature, which wished to make the list exhaustive.
357. The adoption of a decision imposing a fine confers a new power on the Commission, namely the right to enforce that fine. Such a decision does not, therefore, interrupt the limitation period in proceedings and an action brought against it does not lead to the suspension of the limitation period. In the present case, the limitation period in proceedings therefore expired on 5 April 1993, that is five years after the issue of the statement of objections, which was the final interrupting measure, since the action brought against the PVC I decision had not had a suspensory effect. Therefore, on 27 July 1994, the Commission no longer had jurisdiction to adopt a new decision after the annulment of the preceding one.
358. DSM complains that the Court of First Instance held, in paragraph 1097 of the contested judgment, that it cannot be accepted that the word decision' used in Article 3 of Regulation No 2988/74 refers to the measures listed in Article 2 thereof. Contrary to the Court's finding, the PVC I decision and the consequences of its annulment do not fall within the scope of Article 3 of Regulation No 2988/74 but of Article 6 of that regulation, which relates to suspension of the limitation period concerning enforcement. Since the action had culminated in the annulment of the PVC I decision, it had not, therefore, suspended the limitation period in proceedings.
359. DSM claims, in the alternative, that, if this action were held to have suspended the limitation period under Article 3 of Regulation No 2988/74, the annulment of the PVC I decision should be regarded as having rendered the suspension, like the decision itself, retroactively non-existent. The Court of First Instance responded, incorrectly, in paragraph 1100 of the contested judgment, that the effect of that argument was to deprive Article 3 of Regulation No 2988/74 of all meaning. Indeed, that provision does retain one meaning, in accordance with the purpose and organisation of the regulation: the suspension of the limitation period where an action is brought against measures taken for the purpose of the preliminary investigation and proceedings protects the Commission against a limitation stemming from an objective reason which cannot be attributed to it. On the other hand, the same provision does not offer any protection against circumstances which may be attributed to the Commission, such as the adoption of a decision which is improper and is annulled for that reason.
360. In that regard, it must be pointed out that this argument was expressly rejected by the Court of First Instance, and rightly so. It is founded, in fact, on a dual confusion. In its reasoning, the appellant seems to have an inaccurate view of the distinction which the regulation makes between the power to impose fines and the power to enforce the decisions imposing the fines. It also seems not to wish to draw any conclusion from the distinction, also made in the regulation, between the interruption and the suspension of the limitation period.
361. The appellant's argument is based, first of all, on an incorrect reading of Article 2 of the regulation. This regards as a measure interrupting the limitation period any action taken by the Commission ... for the purpose of the preliminary investigation or proceedings in respect of an infringement' and states that actions which interrupt the running of the period shall include in particular' various measures which it lists.
362. It is unquestionably apparent from the structure of this provision and the use of the term in particular' that this list is not exhaustive. The appellant suggests in that respect an interpretation which can only be described as contra legem.
363. It follows that, contrary to the appellant's claims, the fact that the decision imposing a fine does not appear in Article 2 of the regulation in no way indicates the legislature's express intention to exclude it.
364. The reason why the Commission decision finding an infringement and imposing a fine does not appear in Article 2 is quite logical. The subject-matter of this provision, as its heading also states, is the interruption of the limitation period in proceedings. Once the Commission has taken such a decision, it has, by definition, put an end to the proceedings. Therefore, the question of a possible limitation of the right to bring proceedings can no longer be raised, since that right has already been exercised.
365. The Commission decision therefore does more than interrupt the limitation period. So far as concerns the addressees of the decision, it renders it devoid of purpose.
366. The only question which may still arise is a different one, namely the consequences of an action against the decision. The issue is covered by Article 3 of the regulation.
367. 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.
368. 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.
369. However, for there to be litigation, there has to be a Commission measure open to challenge before the Community court. The decisions' referred to in Article 3 must, therefore, be challengeable measures.
370. 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, this is hardly surprising; many measures of inquiry interrupt the limitation period but are not, in themselves, measures open to challenge.
371. The appellant maintains, however, that the Commission decision finding the infringement and imposing the fine cannot fall within the scope of Article 3, since it is not listed in Article 2. As we have just seen and as the Court of First Instance pointed out, the fact that these 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.
372. 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 the suspension of the limitation period, whereas an action against the decision imposing the fine would not.
373. The appellant tries to justify that difference, however, by arguing that the annulment of a decision imposing a fine is attributable to the Commission which therefore does not deserve to be protected against limitation.
374. However, it must be noted - as the Court of First Instance and the Commission point out - that the annulment of a Commission decision is always attributable to that institution, whatever the decision in question. Whether it is a question of measures of inquiry or of the imposition of fines, an annulment always involves an error of law or fact on the part of the Commission.
375. The distinction which the appellant seeks to draw in that respect is therefore wholly unfounded.
376. In addition to the fact that it is inconsistent with both the wording and aim of the regulation, 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, as the appellant itself points out, the first recital in the preamble to the regulation mentions the need to create a comprehensive set of rules.
377. Although the appellant tries to avoid that consequence by stating that Article 6 of the regulation is applicable in this case, merely reading that provision reveals immediately that the effort is futile.
378. It is undoubtedly clear from the wording of that provision that it applies 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.
379. It follows that Article 6 of the regulation is clearly inapplicable to the present case.
380. It follows from the above that the Court of First Instance was entitled to apply Article 3 of the regulation.
381. The applicability of Article 3 would be deprived of all significance if the appellant's alternative argument, that the annulment of the contested decision leads to the annulment of the suspension, were upheld. Article 3 would then, in fact, be inapplicable in the event of annulment, since the suspension for which it provides would disappear with that annulment.
382. In the light of the fact that that provision is also no longer designed to apply if the decision is not annulled since, as we have seen, the issue of the limitation period in proceedings cannot then be raised, the consequence of the appellant's alternative argument is that Article 3 would be wholly devoid of meaning.
383. Therefore, this argument cannot be upheld either.
384. The plea relating to limitation should therefore be rejected.
385. It follows that all of the pleas raised should be rejected.
III - Conclusion
386. In the light of the foregoing considerations, I propose that the Court should:
- dismiss the appeal;
- order the appellant to pay the costs.