Judgment of the Court of 15 October 2002. - Limburgse Vinyl Maatschappij NV (LVM) (C-238/99 P), DSM NV and DSM Kunststoffen BV (C-244/99 P), Montedison SpA (C-245/99 P), Elf Atochem SA (C-247/99 P), Degussa AG (C-250/99 P), Enichem SpA (C-251/99 P), Wacker-Chemie GmbH and Hoechst AG (C-252/99 P) and Imperial Chemical Industries plc (ICI) (C-254/99 P) v Commission of the European Communities. - Appeal - Competition - Polyvinylchloride (PVC) - Article 85(1) of the EC Treaty (now Article 81(1) EC) - Annulment of a Commission decision - New decision - Documents predating the first decision - Res judicata - Principle of non bis in idem - Limitation - Reasonable period - Statement of reasons - Access to the file - Fair hearing - Professional secrecy - Self-incrimination - Private life - Fines. - Joined cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P.



European Court reports 2002 Page I-08375



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

1. Court of First Instance - Organisation - Composition of chambers - Absence or inability to attend of a judge - Permanent or temporary - Not relevant

(EC Statute of the Court of Justice, Art. 15; Rules of Procedure of the Court of First Instance, Arts 10(1) and 32(1))

2. Procedure - Res judicata - Final judgment in the matter given on appeal by the Court of Justice - Scope

(EC Treaty, Art. 176 (now Art. 233 EC); EC Statute of the Court of Justice, Art. 54, para. 1)

3. Competition - Administrative procedure - Commission decision finding an infringement, adopted after annulment of an earlier decision on account of a procedural defect - Principle of non bis in idem - Whether breached - No such breach

4. Actions for annulment - Judgment granting annulment - Scope - Account to be taken of both the grounds and operative part of the judgment - Adoption of a fresh act on the basis of the valid previous preparatory acts - Permissibility

5. Community law - Principles - Rights of the defence - Scope - Competition - Administrative procedure - Scope of that principle after annulment of the first decision of the Commission - Hearing of undertakings - Consultation of Advisory Committee on Restrictive Practices and Dominant Positions - Hearing Officer

(Council Regulation No 17, Arts 10(3) and 19(1); Commission Regulation No 99/63, Arts 1 and 4)

6. Actions for annulment - Judgment granting annulment - Effects - Annulment of a Commission decision finding that the competition rules have been infringed - Effects vis-à-vis addressees who have not brought proceedings - No such effects

(EC Treaty, Arts 85 and 189 (now Arts 81 EC and 249 EC) and Art. 173 (now, after amendment, Art. 230 EC))

7. Competition - Administrative procedure - Limitation periods in proceedings - Suspension - Commission decision which is the subject of proceedings before the Court of Justice - Scope

(Council Regulation No 2988/74, Arts 2 and 3)

8. Community law - Principles - Action within a reasonable time - Scope - Competition - Administrative procedure - Judicial proceedings - Criteria of assessment

(Council Regulation No 17)

9. Appeals - Pleas in law - Infringement of the obligation to act within a reasonable period in administrative procedures relating to competition - Assessment falling within the jurisdiction of the Court of First Instance - Assessment to be made in the light of the specific circumstances - Review by the Court of Justice - Limits

(Art. 225 EC; EC Statute of the Court of Justice, Art. 51, para. 1)

10. Competition - Administrative procedure - Powers of the Commission in investigations - Investigations carried out pursuant to an authorisation - Voluntary cooperation of an undertaking - Consequences of an ability to show undue interference by a public authority

(Council Regulation No 17, Art. 14(2))

11. Community law - Principles - Rights of the defence - Observance in administrative procedure - Competition - Decision requiring information, addressed to an undertaking - Infringement of the privilege against self-incrimination - Assessment to be made by the Court of First Instance in the light of the specific circumstances - Review by the Court of Justice - Limits

(Council Regulation No 17, Art. 11(2) and (5))

12. Competition - Administrative procedure - Powers of the Commission in investigations - Use of information obtained during an investigation relating to a different proceeding - Limits

(Council Regulation No 17, Arts 14(2) and (3) and 20(1))

13. Competition - Administrative procedure - Access to the file - Purpose - Observance of the rights of the defence - Infringement - Consequences

(Council Regulation No 17, Art. 19(1); Commission Regulation No 99/63, Arts 3 and 7 to 9)

14. Appeals - Pleas in law - Infringement of the rights of the defence resulting from the refusal to grant access to the documents used as evidence against the enterprise in an administrative procedure applying competition rules - Plea requiring an appraisal of the facts falling within the exclusive jurisdiction of the Court of First Instance and not subject, save for distortion, to review by the Court of Justice

(Art. 225 EC; EC Statute of the Court of Justice, Art. 51)

15. Procedure - Measures of organisation of procedure - Oral procedure - Invitation to submit common pleas collectively - Permissibility

(Rules of Procedure of the Court of First Instance, Art. 64(2))

16. Procedure - Introduction of new pleas in law in the course of the proceedings - Plea based on matters coming to light during the proceedings - Matters coming to light following a measure of organisation of procedure granting access to the Commission's file - Permissibility

(Rules of Procedure of the Court of First Instance, Art. 48(2), subpara. 1)

17. Procedure - Reply - Procedural requirements - Summary of the pleas in law which the application is based on - Reference to arguments put forward during the oral procedure in relation to pleas in law contained in the application - Admissibility

(Rules of Procedure of the Court of First Instance, Arts 44(1)(c) and 48(2))

18. Appeals - Pleas in law - Plea in law alleging failure of the Court of First Instance to respond to a plea - Detailed rules on the presentation of appeals

(Rules of Procedure of the Court of Justice, Art. 112(1), subpara. 1(c))

19. Acts of the institutions - Statement of reasons - Obligation - Scope - Decision applying competition rules - Decision imposing penalty adopted following annulment of a previous decision with the same purpose

(EC Treaty, Arts 85(1) and 190 (now Arts 81(1) EC and 253 EC) and Art. 89 (now, after amendment, Art. 85 EC))

20. Competition - Fines - Decision imposing fines - Obligation to state reasons - Scope - Indication of the factors enabling the Commission to assess the gravity and duration of the infringement

(EC Treaty, Art. 190 (now Art. 253 EC); Council Regulation No 17, Art. 15(2), subpara. 2)

21. Competition - Agreements, decisions and concerted practices - Prejudice to competition - Criteria of assessment - Anti-competitive object - Sufficient to establish the existence thereof

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

22. Appeals - Jurisdiction of the Court of Justice - Challenge, on grounds of fairness, to the assessment by the Court of First Instance in regard to the amount of fines imposed on undertakings which have infringed the Treaty competition rules - Excluded - Assessment called in question for reasons based on infringement of the principle of non-discrimination - Permissibility

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

23. Actions for annulment - Jurisdiction of the Community judicature - Actions concerning penalties imposed on undertakings which have infringed the Treaty competition rules - Unlimited jurisdiction - Judgment granting annulment without exercise of that jurisdiction - Effect

(EC Treaty, Art. 172 (now Art. 229 EC); Council Regulation No 17, Art. 17)

Summary

$$1. For the purpose of the application of the rules laid down in Article 15 of the Statute of the Court of Justice and Articles 10(1) and 32(1) of the Rules of Procedure of the Court of First Instance, which relate to the composition of the chambers of the Court First Instance hearing a case, it is not the permanent or temporary nature of the inability of a judge to attend which is decisive. If a temporary absence or inability to attend justifies the change in the composition to allow an uneven number of members to sit, the same must apply, a fortiori, to the case of a permanent inability to attend as a result of, for example, the expiry of a member's term of office.

( see paras 35-38 )

2. Where the Court of Justice itself gives final judgment on the dispute in accordance with Article 54 of the Statute of the Court of Justice by accepting one or more pleas raised by an applicant, it does not automatically settle all the points of fact and law raised by that applicant.

The authority of res judicata attaching to a judicial decision which itself limits the obligations imposed under Article 176 of the EC Treaty (now Article 233 EC) on an institution whose act has been declared void extends only to matters of fact and law actually or necessarily settled by that judicial decision.

( see paras 44, 47-48 )

3. The principle of non bis in idem, which is a fundamental principle of Community law also enshrined in Article 4(1) of Protocol No 7 to the European Convention on Human Rights, precludes, in competition matters, an undertaking from being found guilty or proceedings from being brought against it a second time on the grounds of anti-competitive conduct in respect of which it has been penalised or declared not liable by a previous unappealable decision.

The application of that principle therefore presupposes that a ruling has been given on the question whether an offence has in fact been committed or that the legality of the assessment thereof has been reviewed.

Thus, the principle of non bis in idem merely prohibits a fresh assessment in depth of the alleged commission of an offence which would result in the imposition of either a second penalty, in addition to the first, in the event that liability is established a second time, or a first penalty in the event that liability not established by the first decision is established by the second.

On the other hand, it does not in itself preclude the resumption of proceedings in respect of the same anti-competitive conduct where the first decision was annulled for procedural reasons without any ruling having been given on the substance of the facts alleged, since the annulment decision cannot in such circumstances be regarded as an acquittal' within the meaning given to that expression in penal matters. In such a case, the penalties imposed by the new decision are not added to those imposed by the annulled decision but replace them.

( see paras 59-62 )

4. Annulment of a Community measure does not necessarily affect the preparatory acts preceding it since the procedure for replacing such a measure may, in principle, be resumed at the very point at which the penalised illegality occurred.

( see para. 73 )

5. In all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of Community law which must be complied with, even if the proceedings in question are administrative proceedings.

Article 19(1) of Regulation No 17 and Article 4 of Regulation No 99/63, which apply that principle, require the Commission to deal in its final decision only with those objections on which the undertakings and associations of undertakings concerned have had the opportunity to put their case.

Accordingly, observance of the rights of the defence requires that each undertaking or association of undertakings concerned be given the opportunity to be heard as to the objections raised against each of them which the Commission proposes to deal with in the final decision finding infringement of the competition rules.

Where, following the annulment of a decision penalising undertakings for infringement of Article 85(1) of the Treaty (now Article 81(1) EC) on account of a procedural defect affecting only the manner in which it was finally adopted by the college of Commissioners, the Commission adopts a new decision with the same substantial content and based on the same complaints, it is not obliged to hold a new hearing of the undertakings concerned with the result that it is also not required either to consult again the Advisory Committee on Restrictive Practices and Dominant Positions or to request fresh intervention by the Hearing Officer.

( see paras 85-87, 114, 118, 122, 126 )

6. Although drafted and published as a single decision, a decision adopted in a competition matter with respect to several enterprises must be regarded as a group of individual decisions establishing, in relation to each of the undertakings to which it is addressed, the breach or breaches which that undertaking has been found to have committed and, where appropriate, imposing on it a fine. It can be annulled only with respect to those addressees which have successfully brought an action before the Community judicature, and remains binding on those addressees which have not applied for its annulment.

( see paras 99-100 )

7. Article 3 of Regulation No 2988/74 concerning limitation periods in proceedings and the enforcement of sanctions relating to transport and competition protects the Commission against the effect of the limitation period in situations in which it must await the decision of the Community judicature in proceedings beyond its control before knowing whether the contested act is or is not vitiated by illegality. Article 3 therefore deals with cases in which the inaction of the institution is not the result of a lack of diligence.

Such situations arise both in the case of actions against the interruptive measures listed in Article 2 of Regulation No 2988/74 which are open to challenge and in the case of an action against a decision imposing a fine or penalty.

Accordingly, the wording and the purpose of Article 3 cover both actions brought against the challengeable measures referred to in Article 2 and actions brought against a final decision of the Commission.

Consequently, an action brought against a final decision imposing penalties suspends the limitation period in proceedings pending delivery by the Community judicature of a final ruling on that action.

( see paras 144-147 )

8. In competition matters, the general principle that action must be taken within a reasonable period must be observed both in administrative proceedings conducted pursuant to Regulation No 17 which may lead to the penalties provided for therein and in judicial proceedings in the event of an action against the Commission's decision. The examination of whether observance of that principle was guaranteed in the administrative procedure may be divided into two successive stages, the first covering the period in which the Commission takes measures involving a complaint that an infringement has been committed and having a significant impact on the situation of the suspected undertakings and the second covering the period from notification of the statement of objections up to adoption of the final decision.

The reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities.

However, that list of criteria is not exhaustive and the assessment of the reasonableness of the period in question does not require a systematic examination of the circumstances of the case in the light of each of them where the duration of the proceedings appears justified in the light of one of them. The purpose of those criteria is to determine whether the time taken in the handling of a case is justified. Thus, the complexity of the case or the dilatory conduct of the applicant may be deemed to justify a duration which is prima facie too long. Conversely, the time taken may be regarded as longer than is reasonable in the light of just one criterion, in particular where its duration is the result of the conduct of the competent authorities. Where appropriate, the duration of a procedural stage may be regarded as reasonable from the outset if it appears to be consistent with the average time taken in handling a case of its type.

( see paras 179, 181-183, 187-188, 207, 210 )

9. The reasonableness of a period in an administrative procedure cannot be assessed by reference to a precise maximum limit determined in an abstract manner but, rather, must be appraised in the light of the specific circumstances of each case.

An initial general examination is carried out to determine whether the period in question is prima facie too long having regard to the procedure being conducted. If it is, a more specific examination is required as to whether there have been any actual delays which cannot be justified by the circumstances of the case.

As regards an administrative procedure relating to competition law, the Court of First Instance has exclusive jurisdiction to establish and assess the relevant facts except where those facts are clearly distorted and then, subject to review by the Court of Justice, to define their legal nature with regard to observance of the principle that decisions should be adopted within a reasonable time.

( see paras 192-194 )

10. It is apparent from Article 14(2) of Regulation No 17 that, in contrast to those ordered by a decision pursuant to Article 14(3) of that regulation, investigations carried out on a simple authorisation are based on the voluntary cooperation of the undertakings. Where an undertaking has in fact cooperated in an investigation carried out on authorisation, a complaint of undue interference by the public authority in the sphere of its private activities is unfounded if it is not substantiated by evidence showing that the Commission went beyond the cooperation offered by the undertaking.

( see paras 252-254 )

11. Infringement of the privilege against self-incrimination presupposes the exercise of coercion against the person suspected of committing a breach in order to obtain information from him and an actual interference with the right in question.

An undertaking is not obliged to reply to requests for information under Article 11(2) of Regulation No 17.

With respect to decisions requiring information adopted under Article 11(5) of Regulation No 17, the assessment of an interference with the privilege against self-incrimination requires an appraisal of the facts at the level of both the content of the decisions and the information provided in response, which does not constitute, save where the clear sense of the evidence is distorted, a question of law which is subject, as such, to review by the Court of Justice.

( see paras 275-285 )

12. Under Articles 20(1) and 14(2) and (3) of Regulation No 17, information obtained during investigations must not be used for purposes other than those indicated in the order or decision pursuant to which the investigation is carried out.

That requirement is intended to protect, in addition to the professional secrecy expressly referred to in Article 20(1) of Regulation No 17, the undertakings' defence rights, which not only form part of the fundamental principles of Community law but are also enshrined in Article 6 of the European Convention on Human Rights, the interpretation of which by the European Court of Human Rights must be taken into account by the Community judicature.

Those rights would be seriously endangered if the Commission were able to rely on evidence against undertakings which was obtained during an investigation but was not related to the subject-matter or purpose thereof.

On the other hand, it cannot be concluded that the Commission is precluded from initiating an inquiry in order to verify or supplement information which it happened to obtain during a previous investigation if that information indicates the existence of conduct contrary to the competition rules in the Treaty.

First, undertakings are in no way deprived of the protection afforded by Article 20 of Regulation No 17 if the Commission makes a new request for a document. From the point of view of the defence of their rights, they are in the same position as where the Commission no longer has the document, since it is forbidden to make direct use as evidence in a second proceeding of a document obtained in a previous proceeding. Secondly, the fact that the Commission has obtained documents in a given matter for the first time does not confer such absolute protection that those documents cannot be requested under statutory powers in another matter and used as evidence.

( see paras 274, 298-301, 305-306 )

13. Access to the file in competition cases is intended in particular to enable the addressees of statements of objections to acquaint themselves with the evidence in the Commission's file so that on the basis of that evidence they can express their views effectively on the conclusions reached by the Commission in its statement of objections. The right of access to the Commission's file is therefore designed to ensure effective exercise of the rights of the defence, which are not only fundamental principles of Community law but are also enshrined in Article 6 of the European Convention on Human Rights.

Infringement of the right of access to the Commission's file during the procedure prior to adoption of the decision can, in principle, cause the decision to be annulled if the rights of defence of the undertaking concerned have been infringed.

In such a case, the infringement committed is not remedied by the mere fact that access was made possible during the judicial proceedings relating to an action in which annulment of the contested decision is sought. Where access has been granted at that stage, the undertaking concerned does not have to show that, if it had had access to the non-disclosed documents, the Commission decision would have been different in content, but only that it would have been able to use those documents for its defence.

( see paras 315-318 )

14. The Court of First Instance's appraisal of the question whether documents to which the undertaking alleged to have infringed the Treaty rules on competition has not had access during the administrative procedure could have been used by it for its defence concerns a question of fact. Therefore, it does not - save where the clear sense of the evidence produced is distorted - constitute a question of law which is subject, as such, to review by the Court of Justice.

( see para 330-331 )

15. In accordance with Article 64(2) of the Rules of Procedure of the Court of First Instance, the purpose of measures of organisation of procedure is, inter alia, to ensure efficient conduct of the oral procedure.

In compliance with the principle of hearing both parties and the rights of the defence, which are also enshrined in Article 6 of the European Convention on Human Rights, the Court of First Instance may thus invite the parties to submit collectively their common pleas in law, in order to avoid repetition of identical arguments, with each party continuing to have the opportunity to submit its own arguments in a complementary manner.

( see paras 348-349 )

16. In accordance with the first subparagraph of Article 48(2) of the Rules of Procedure of the Court of First Instance, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or fact which come to light in the course of the procedure.

That provision in no way excludes the possibility that matters of law or fact may have been discovered in the context of a measure of organisation of procedure which, in a case involving several applicants, granted access to the Commission's file to all of them, including those which did not raise a plea in law alleging infringement of their right of access to the file.

Indeed, it authorises any new plea in law which is based on such matters. In circumstances such as those referred to in the paragraph above, the possibility cannot therefore be excluded that an applicant may introduce a new plea in law based precisely on an alleged infringement of its right of access to the file.

( see paras 369-371 )

17. A complete restatement or even a summary, in a reply, of arguments previously submitted in an oral procedure in relation to pleas contained in the application is not a precondition for the examination of those arguments by the Court of First Instance. From the oral procedure onwards, those arguments are included in the case submissions and are known to the court before which the case has been brought. They must therefore be examined by that court since, being relevant and relating to pleas already raised, they do not constitute a new plea for the purposes of Article 48(2) of the Rules of Procedure of the Court of First Instance.

( see para. 385 )

18. Where an appellant submits that the Court of First Instance did not respond to a plea, its submission cannot be challenged, in terms of the admissibility of the ground of appeal, on the basis that it does not cite any passage or part of the contested judgment as the specific object of its complaint since, by definition, it is a failure to respond that is being alleged. For the same reason, the submission cannot be challenged on the ground that it simply repeats or reproduces the plea raised at first instance.

( see para. 423 )

19. By merely referring to the Treaty establishing the European Community, the Commission states sufficient reasons for its decision to adopt, after annulment of a previous decision on account of a procedural defect concerning only the manner in which it was finally adopted by the college of Commissioners, a fresh decision penalising undertakings which have infringed Article 85(1) of the Treaty (now Article 81(1) EC). In carrying out the task assigned to it by Article 89 of the Treaty (now, after amendment, Article 85 EC), the Commission has a discretionary power to bring actions in the context of its general competition policy.

( see paras 447-449 )

20. In the context of the application of Article 85(1) of the Treaty (now Article 81(1) EC), the scope of the obligation to state reasons for the method of calculating the fine, which is imposed on the Commission by Article 190 of the Treaty (now Article 253 EC), must be determined in the light of the second subparagraph of Article 15(2) of Regulation No 17, which provides that regard shall be had both to the gravity and to the duration of the infringement'.

The essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration.

That requirement does not oblige the Commission to indicate in its decision the figures relating to the method of calculating the fines; in any event, the Commission cannot, by mechanical recourse to arithmetical formulae alone, divest itself of its own power of assessment.

In the case of a decision imposing fines on several undertakings, the scope of the duty to state reasons must be assessed inter alia in the light of the fact that the gravity of the infringement depends on numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up.

( see paras 462-465 )

21. For the purposes of applying Article 85(1) of the Treaty (now Article 81(1) EC), it is sufficient that the aim of an agreement should be to restrict, prevent or distort competition, irrespective of the actual effects of that agreement.

Consequently, in the case of agreements reached at meetings of competing undertakings, that provision is infringed where those meetings have such an aim and are thus intended to organise artificially the operation of the market. The liability of a particular undertaking in respect of the infringement is properly established where it participated in those meetings with knowledge of their aim, even if it did not proceed to implement any of the measures agreed at those meetings.

The greater or lesser degree of regular participation by the undertaking in the meetings and of completeness of its implementation of the measures agreed is relevant not to the establishment of its liability but rather to the extent of that liability and thus to the severity of the penalty.

( see paras 508-510 )

22. It is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of Community law. The exercise of that jurisdiction in respect of the determination of those fines cannot result in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 85(1) of the Treaty (now Article 81(1) EC).

( see paras 614, 617 )

23. Article 172 of the Treaty (now Article 229 EC) and Article 17 of Regulation No 17, in conjunction with Article 87(2)(d) of the Treaty (now Article 83(2)(d) EC), which confer on the Community judicature unlimited jurisdiction in respect of measures of the Commission imposing fines in competition matters, are concerned only with the scope of the review carried out by the Community judicature in respect of Commission decisions on competition matters. More than a simple review of legality, which merely permits dismissal of the action for annulment or annulment of the contested measure, the unlimited jurisdiction conferred on the Community judicature authorises it to vary the contested measure, even without annulling it, by taking into account all of the factual circumstances, so as to amend, for example, the amount of the fine.

However, the mere bringing of an action does not entail the definitive transfer to the Community judicature of the power to impose penalties. The Commission finally loses its power once the court has actually exercised its unlimited jurisdiction. On the other hand, where the Community judicature simply annuls a decision on the ground of illegality without itself ruling on the substance of the infringement or on the penalty, the institution which adopted the annulled measure may reopen the procedure at the stage at which the illegality was found to have occurred and exercise again its power to impose penalties.

( see paras 692-693 )

Parties

In Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P,

Limburgse Vinyl Maatschappij NV (LVM), established in Brussels (Belgium), represented by I.G.F. Cath, advocaat, with an address for service in Luxembourg (C-238/99 P),

DSM NV and DSM Kunststoffen BV, established in Heerlen (the Netherlands), represented by I.G.F. Cath, with an address for service in Luxembourg (C-244/99 P),

Montedison SpA, established in Milan (Italy), represented by G. Celona and P.A.M. Ferrari, avvocati, with an address for service in Luxembourg (C-245/99 P),

Elf Atochem SA, established in Paris (France), represented by X. de Roux, avocat, with an address for service in Luxembourg (C-247/99 P),

Degussa AG, formerly Degussa-Hüls AG, before that Hüls AG, established in Marl (Germany), represented by F. Montag, Rechtsanwalt, with an address for service in Luxembourg (C-250/99 P),

Enichem SpA, established in Milan, represented by M. Siragusa and F.M. Moretti, avvocati, with an address for service in Luxembourg (C-251/99 P),

Wacker-Chemie GmbH, established in Munich (Germany),

Hoechst AG, established in Frankfurt am Main (Germany),

both represented by H. Hellmann, Rechtsanwalt, with an address for service in Luxembourg (C-252/99 P),

Imperial Chemical Industries plc (ICI), established in London (United Kingdom), represented by D. Vaughan QC, D. Anderson QC, K. Bacon, Barrister, and R.J. Coles and S. Turner, Solicitors, with an address for service in Luxembourg (C-254/99 P),

appellants,

APPEALS against the judgment of the Court of First Instance of the European Communities (Third Chamber, Extended Composition) of 20 April 1999 in Joined Cases T-305/94 to T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II-931, seeking to have that judgment set aside,

the other party to the proceedings being:

Commission of the European Communities, represented by J. Currall and W. Wils, acting as Agents, assisted by M.H. van der Woude, avocat (C-238/99 P and C-244/99 P), by R.M. Morresi, avvocato (C-245/99 P and C-251/99 P), by E. Morgan de Rivery, avocat (C-247/99 P), by A. Böhlke, Rechtsanwalt (C-250/99 P and C-252/99 P), and by D. Lloyd-Jones QC (C-254/99 P), with an address for service in Luxembourg,

defendant at first instance,

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet (President of Chamber), C. Gulmann (Rapporteur), D.A.O. Edward, A. La Pergola, P. Jann, F. Macken, N. Colneric and S. von Bahr, Judges,

Advocate General: J. Mischo,

Registrar: D. Louterman-Hubeau, Head of Division, and L. Hewlett, Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 13 June 2001, at which Limburgse Vinyl Maatschappij NV (LVM), DSM NV and DSM Kunststoffen BV were represented by I.G.F. Cath (C-238/99 P and C-244/99 P), Montedison SpA by G. Celona and P.A.M. Ferrari (C-245/99 P), Elf Atochem SA by C.-H. Léger, avocat (C-247/99 P), Degussa AG by F. Montag (C-250/99 P), Enichem SpA by M. Siragusa and F.M. Moretti (C-251/99 P), Wacker-Chemie GmbH and Hoechst AG by H. Hellmann and H.-J. Hellmann, Rechtsanwalt (C-252/99 P), Imperial Chemical Industries plc (ICI) by D. Vaughan, D. Anderson, R.J. Coles, S. Turner and S.C. Berwick, Solicitor (C-254/99 P), and the Commission by J. Currall and W. Wils, assisted by M.H. van der Woude (C-238/99 P and C-244/99 P), by R.M. Morresi (C-245/99 P and C-251/99 P), by E. Morgan de Rivery (C-247/99 P), by A. Böhlke (C-250/99 P and C-252/99 P) and by D. Lloyd-Jones (C-254/99 P),

after hearing the Opinion of the Advocate General at the sitting on 25 October 2001,

gives the following

Judgment

Grounds

1 By applications lodged at the Registry of the Court of Justice between 24 June and 8 July 1999, Limburgse Vinyl Maatschappij NV (LVM'), DSM NV and DSM Kunststoffen BV, Montedison SpA (Montedison'), Elf Atochem SA (Elf Atochem'), Degussa AG (Degussa'), formerly Degussa-Hüls AG and before that Hüls AG (Hüls'), Enichem SpA (Enichem'), Wacker-Chemie GmbH (Wacker-Chemie'), Hoechst AG (Hoechst') and Imperial Chemical Industries plc (ICI') brought appeals pursuant to Article 49 of the EC Statute of the Court of Justice against the judgment of the Court of First Instance of 20 April 1999 in Joined Cases T-305/94 to T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Maatschappij and Others v Commission [1999] ECR II-931 (the contested judgment'), by which the Court of First Instance, inter alia, reduced the fine imposed on Elf Atochem and that imposed on ICI by 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') and dismissed the remainder of the applications for annulment of that decision.

I - Factual background to the dispute

2 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 (OJ, English Special Edition 1959-1962, p. 87), the Commission of the European Communities commenced an inquiry concerning polyvinylchloride (PVC'). It subsequently undertook various investigations at the premises of the undertakings concerned and sent them several requests for information.

3 On 24 March 1988 it instituted on its own initiative a proceeding under Article 3(1) of Regulation No 17 against 14 PVC producers. On 5 April 1988 it sent each of those undertakings a statement of objections as provided for in Article 2(1) of Commission Regulation No 99/63/EEC of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regulation No 17 (OJ, English Special Edition 1963-1964, p. 47). All the undertakings to which that statement was addressed submitted observations in June 1988. Except for Shell International Chemical Company Ltd (Shell'), which had not requested a hearing, they were heard in September 1988.

4 On 1 December 1988 the Advisory Committee on Restrictive Practices and Dominant Positions (the Advisory Committee') delivered an opinion on the Commission's draft decision.

5 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) (OJ 1989 L 74, p. 1, hereinafter the PVC I decision'). By that decision, it penalised the following PVC producers for infringement of Article 85(1) of the Treaty (now Article 81(1) EC): Atochem SA, BASF AG (BASF'), DSM NV, Enichem, Hoechst, Hüls, ICI, LVM, Montedison, Norsk Hydro A/S (Norsk Hydro'), Société artésienne de vinyle SA, Shell, Solvay & Cie (Solvay') and Wacker-Chemie.

6 All those undertakings except Solvay brought actions to have that decision annulled by the Community judicature.

7 The Court of First Instance declared Norsk Hydro's application inadmissible by order of 19 June 1990 (Case T-106/89 Norsk Hydro v Commission, not published in the European Case Reports).

8 The other cases were joined for the purposes of the oral procedure and the judgment.

9 By judgment of 27 February 1992 in Joined Cases T-79/89, T-84/89, T-85/89, T-86/89, T-89/89, T-91/89, T-92/89, T-94/89, T-96/89, T-98/89, T-102/89 and T-104/89 BASF and Others v Commission [1992] ECR II-315 (the judgment of the Court of First Instance of 27 February 1992'), the Court of First Instance declared the PVC I decision non-existent.

10 On appeal by the Commission, the Court of Justice, by judgment of 15 June 1994 in Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555 (the Court's judgment of 15 June 1994'), set aside the judgment of the Court of First Instance of 27 February 1992 and annulled the PVC I decision.

11 On 27 July 1994 the Commission adopted the PVC II decision in relation to the producers which had been the subject of the PVC I decision, with the exception of Solvay and Norsk Hydro. That new decision imposed on the undertakings to which it was addressed fines of the same amounts as those imposed by the PVC I decision.

12 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 [a]rtésienne de [v]inyle SA, Shell International Chemical Co., Ltd, and Wacker Chemie GmbH infringed Article 85 of the EC Treaty (together with Norsk Hydro [A/S] and Solvay & Cie) 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 [A/S] 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 professional 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 [a]rtésienne de [v]inyle 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.'

II - The actions brought before the Court of First Instance and the contested judgment

13 By applications lodged at the Registry of the Court of First Instance between 5 and 14 October 1994, LVM, Elf Atochem, BASF, Shell, DSM NV and DSM Kunststoffen BV (collectively DSM'), Wacker-Chemie, Hoechst, Société artésienne de vinyle, Montedison, ICI, Hüls and Enichem brought actions before the Court of First Instance.

14 Each of the parties sought annulment of the PVC II decision in whole or in part and, in the alternative, annulment or reduction of the fine imposed on it. Montedison also claimed that the Commission should be ordered to pay damages.

15 By 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 had participated in the infringement complained of after the first half of 1981;

- reduced the fines imposed on Elf Atochem, Société artésienne de vinyle and ICI to EUR 2 600 000, EUR 135 000 and EUR 1 550 000 respectively;

- dismissed the remainder of the applications;

- ruled on the costs.

III - Forms of order sought in the appeals

16 LVM and DSM claim that the Court should:

- annul in whole or in part the contested judgment and end the procedure or, in the alternative, refer the case back to the Court of First Instance for resumption of the proceedings;

- annul in whole or in part the PVC II decision;

- annul the fines imposed on the appellants or reduce the amounts thereof;

- order the Commission to pay the costs of the proceedings at first instance and on appeal.

17 Montedison claims that the Court should:

- annul the contested judgment;

- annul the PVC II decision;

- refer the case back to the Court of First Instance;

- reduce the amount of the fine to a minimal sum;

- order the Commission to pay the costs of the proceedings at first instance and on appeal.

18 Elf Atochem claims that the Court should:

- annul the contested judgment and give a final ruling on the dispute;

- order the Commission to pay the costs.

19 Degussa claims that the Court should:

- annul the contested judgment in so far as it dismisses its application and orders it to pay the costs;

- annul Articles 1, 2 and 3 of the PVC II decision in so far as they concern it;

- order the Commission to pay the costs of the proceedings at first instance and on appeal.

20 Enichem claims that the Court should:

- annul the parts of the contested judgment challenged by it and consequently annul the PVC II decision;

- in the alternative, annul those parts of the contested judgment which adversely affect it and consequently annul or reduce the fine imposed;

- order the Commission to pay the costs of the proceedings at first instance and on appeal.

21 Wacker-Chemie and Hoechst claim that the Court should:

- annul paragraphs 4 and 5 of the operative part of the contested judgment in so far as they concern them;

- annul the PVC II decision in so far as it concerns them;

- in the alternative, reduce the amount of the fines imposed on them;

- in the further alternative, refer the case back to the Court of First Instance for a new ruling;

- order the Commission to the pay the costs or, in the event of a referral back to the Court of First Instance, reserve the issue of costs for a decision by that court.

22 ICI claims that the Court should:

- annul the contested judgment in so far as it concerns ICI;

- annul the PVC II decision in so far as it concerns ICI or, failing that, refer the case back to the Court of First Instance;

- annul the fine, which was reduced to EUR 1 550 000 by the Court of First Instance, or further reduce the amount thereof;

- order the Commission to pay the costs of the proceedings at first instance and on appeal.

23 The Commission contends that the Court should:

- dismiss the appeals;

- order the appellants to pay the costs.

IV - The pleas in law for annulment of the contested judgment

24 LVM and DSM raise nine - essentially identical - pleas in law for annulment of the contested decision:

- infringement of the principle of res judicata;

- infringement of the principle non bis in idem;

- infringement of the principle that decisions must be adopted within a reasonable time;

- invalidity of the procedural measures preceding the PVC I decision;

- need for new administrative procedural measures following annulment of the PVC I decision;

- insufficient statement of reasons for the dismissal of the plea in law alleging infringement by the Commission of Article 190 of the EC Treaty (now Article 253 EC) with respect to its decision to adopt the PVC II decision following annulment of the PVC I decision;

- infringement of the privilege against self-incrimination;

- infringement of the rights of the defence as a result of insufficient access to the Commission's file;

- expiry of the limitation period applying to proceedings.

25 DSM also relies on two further pleas in law:

- failure to observe the principle of the inviolability of the home;

- infringement of professional secrecy and of the rights of the defence.

26 Montedison raises, in essence, 11 pleas in law for annulment:

- failure to respond to its plea concerning a definitive transfer to the Community judicature of the power to impose penalties following the decision of the Commission;

- need for new administrative procedural measures following annulment of the PVC I decision;

- failure by the Court of First Instance to consider the economic context;

- expiry of the limitation period applying to proceedings;

- infringement of the right to a fair hearing, of Articles 48(2) and 64 of the Rules of Procedure of the Court of First Instance and of the principle of personal liability, resulting from the way in which the oral procedure was organised;

- infringement of the right to a fair hearing and of Article 48(2) of the Rules of Procedure of the Court of First Instance during the examination of the evidence;

- infringement of Articles 10(1) and 32(1) of the Rules of Procedure of the Court of First Instance;

- failure by the Commission to observe the scope of the obligation to state reasons for the method of calculating the fine;

- disproportionality and unfairness of the fine having regard to the gravity and duration of the infringement;

- infringement of the principle of equal treatment with respect to the amount of the fine;

- erroneous dismissal as inadmissible of its claims seeking payment of damages by the Commission.

27 Elf Atochem raises, in essence, four pleas in law for annulment:

- failure to respond to its plea alleging differences between the PVC I and PVC II decisions;

- invalidity of the procedural measures preceding the PVC I decision;

- need for new administrative procedural measures following annulment of the PVC I decision;

- infringement of the rights of the defence as a result of insufficient access to the Commission's file.

28 Degussa raises, in essence, six pleas in law for annulment:

- infringement of the principle that decisions must be adopted within a reasonable time;

- invalidity of the procedural measures preceding the PVC I decision;

- need for new administrative procedural measures following annulment of the PVC I decision;

- failure to respond to its complaint of a lack of intervention by the Hearing Officer prior to the adoption of the PVC II decision;

- infringement of the rights of the defence as a result of insufficient access to the Commission's file;

- failure by the Commission to take account of the scope of the obligation to state reasons for the method of calculating the fine.

29 Enichem raises 13 pleas in law for annulment:

- infringement of Article 44(1)(c) of the Rules of Procedure of the Court of First Instance;

- infringement of the principle of res judicata;

- invalidity of the procedural measures preceding the PVC I decision;

- need for new administrative procedural measures following annulment of the PVC I decision;

- erroneous reasons for the dismissal of the plea alleging infringement by the Commission of Article 190 of the EC Treaty with respect to its decision to adopt the PVC II decision following annulment of the PVC I decision;

- error in law by the Court of First Instance as regards the conclusions to be drawn from its finding of a lack of any correlation between two documents on which the Commission's allegation was based;

- attribution of collective responsibility;

- infringement of the rights of the defence as a result of insufficient access to the Commission's file;

- incorrect attribution of the infringement to the appellant as the holding company of a group and incorrect exclusion by the Court of First Instance of the relevance of the holding company's turnover to the calculation of the amount of the fine;

- infringement of Article 15(2) of Regulation No 17 resulting from an error on the part of the Court of First Instance as regards the correlation between the turnover in the business year preceding the PVC II decision and the amount of the fine;

- failure by the Commission to observe the scope of the obligation to state reasons for the method of calculating the fine;

- misinterpretation and misapplication of Community law and inadequate assessment of the evidence concerning the relationship between the fine imposed on the appellant and the appellant's market share;

- infringement of the principle of proportionality in fixing the amount of the fine.

30 Wacker-Chemie and Hoechst raise six pleas in law for annulment:

- infringement of Articles 10(1) and 32(1) of the Rules of Procedure of the Court of First Instance;

- incomplete examination of the facts;

- inconsistent and insufficient grounds for the contested judgment with respect to consideration of the documentary evidence;

- distortion of the evidence;

- need for new administrative procedural measures following annulment of the PVC I decision;

- infringement of Article 85(1) of the Treaty and Article 15(2) of Regulation No 17.

31 ICI raises, in essence, nine pleas in law for annulment:

- infringement of the principle of res judicata;

- infringement of the principle of non bis in idem;

- infringement of the principle that decisions must be adopted within a reasonable time;

- invalidity of the procedural measures preceding the PVC I decision;

- need for new administrative procedural measures following annulment of the PVC I decision and incompleteness of the file submitted for deliberation by the college of Commissioners at the time of adoption of the PVC II decision;

- erroneous reasoning for the rejection of the plea alleging infringement by the Commission of Article 190 of the Treaty with respect to its decision to adopt the PVC II decision following annulment of the PVC I decision;

- infringement of professional secrecy and of the rights of the defence;

- expiry of the limitation period applicable to proceedings;

- failure by the Court of First Instance to annul or reduce the fine as a result of the infringement of the principle that decisions must be adopted within a reasonable time.

V - The appeals

32 Having heard the parties and the Advocate General on the point, the Court considers that the present cases, on account of the connection between them, should be joined for the purposes of the final judgment in accordance with Article 43 of the Rules of Procedure of the Court of Justice.

A - Pleas in law concerning procedure and form

1. The plea raised by Montedison, Wacker-Chemie and Hoechst alleging infringement of Articles 10(1) and 32(1) of the Rules of Procedure of the Court of First Instance

33 Montedison, Wacker-Chemie and Hoechst observe that the Third Chamber (Extended Composition) of the Court of First Instance, which delivered the contested judgment, was composed of only three members although that Chamber included five members during the oral procedure.

34 They allege that the Court of First Instance thus deviated from the rules governing the normal composition of an extended chamber by misapplying Article 32(1) of its Rules of Procedure. The Court of First Instance considered as absent or prevented from attending within the meaning of that provision one of the members of that Chamber who had ceased to sit as a judge as a result of the expiry of his term of office on 17 September 1998 after the oral procedure. However, the case of the expiry of a judge's term of office is not covered by the provision applied. The contested judgment was therefore delivered by a chamber which was not properly constituted, in breach of Articles 10(1) and 32(1) of the Rules of Procedure of the Court of First Instance.

35 It should be observed that Article 10(1) of its Rules of Procedure requires the Court of First Instance to set up Chambers composed of three or five judges.

36 In accordance with Article 15 of the EC Statute of the Court of Justice, which also applies to the Court of First Instance pursuant to Article 44 of that Statute, decisions of the Court of First Instance are valid only when an uneven number of its members is sitting in the deliberations, and decisions of Chambers composed of three or five judges are valid only if they are taken by three judges.

37 Article 32(1) of the Rules of Procedure of the Court of First Instance provides that where, by reason of a judge being absent or prevented from attending, there is an even number of judges, the most junior judge is to abstain from taking part in the deliberations unless he is the Judge-Rapporteur, in which case the judge immediately senior to him is to abstain from taking part in the deliberations.

38 It thus makes clear how the rules laid down in Article 15 of the EC Statute of the Court of Justice are to be applied. For the purpose of the application of those rules, it is not the permanent or temporary nature of the inability to attend which is decisive. If a temporary absence or inability to attend justifies the change in the composition to allow an uneven number of members to sit, the same must apply, a fortiori, to the case of a permanent inability to attend as a result of, for example, the expiry of a member's term of office.

39 In the present case, the Third Chamber (Extended Composition) of the Court of First Instance could therefore reach a valid decision in a reduced composition of three members after the expiry, subsequent to the oral procedure, of the term of office of one of the five members of which it was initially composed.

40 It follows that this plea must be rejected.

2. The plea in law raised by LVM, DSM, Enichem and ICI alleging infringement of the principle of res judicata

41 Before the Court of First Instance, LVM, DSM, Enichem and ICI submitted that the Commission could not adopt the PVC II decision without disregarding the authority of res judicata attaching to the Court's judgment of 15 June 1994.

42 They allege that the Court of First Instance, in paragraph 77 et seq. of its judgment, failed to observe the principle of res judicata by dismissing the plea which they had raised on the basis thereof.

43 In their view, by ruling on the dispute in accordance with Article 54 of the EC Statute of the Court of Justice, after having annulled the judgment of the Court of First Instance of 27 February 1992, the Court of Justice, in its judgment of 15 June 1994, gave final judgment in respect of all the pleas raised by the undertakings in question.

44 In that connection, it should be observed that, in paragraph 77 of the contested judgment, the Court of First Instance rightly pointed out that the principle of res judicata extends only to matters of fact and law actually or necessarily settled by the judicial decision in question (Case C-281/89 Italy v Commission [1991] ECR I-347, paragraph 14, and Case C-277/95 Lenz v Commission [1996] ECR I-6109, paragraph 50).

45 It stated further, in paragraph 78 of the contested judgment, that, in its judgment of 15 June 1994, the Court of Justice found that the Court of First Instance had erred in law by declaring the PVC I decision non-existent and that, therefore, the judgment of the Court of First Instance of 27 February 1992 had to be set aside. It also pointed out in paragraphs 78 and 81 of the contested judgment that the Court of Justice, when giving its final ruling on the dispute in accordance with Article 54 of the EC Statute of the Court of Justice, annulled the PVC I decision for infringement of essential procedural requirements on the ground 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 PVC I decision in accordance with that article.

46 Therefore, it was fully entitled to conclude, in paragraph 82 of the contested judgment, that the Court's judgment of 15 June 1994, which expressly ruled out the need to examine the other pleas in law raised by the applicants, did not settle those pleas.

47 It rightly added in paragraph 84 of the contested judgment that, where the Court of Justice itself gives final judgment on the dispute in accordance with Article 54 of the EC Statute of the Court of Justice by accepting one or more pleas raised by the applicants, it does not automatically settle all the points of fact and law raised by them.

48 Accordingly, the Court's judgment of 15 June 1994 imposed on the Commission only the obligation - pursuant to Article 176 of the EC Treaty (now Article 233 EC), which requires an institution whose act has been declared void to take the necessary measures to comply with the judgment of the Court - to eliminate the illegality in the measure intended to replace the annulled measure (see, to that effect, Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris v Commission [1988] ECR 2181, paragraph 28).

49 LVM and DSM cannot validly maintain that the second paragraph of Article 174 of the EC Treaty (now the second paragraph of Article 231 EC) also precludes a new Commission decision. That provision is not relevant in this case. It refers only to the possibility open to the Court of expressly retaining some of the effects of a measure which it has declared void, whereas the situation under examination in the present case is covered by Article 176 of the Treaty.

50 Nor can LVM and DSM rely on Case 17/74 Transocean Marine Paint v Commission [1974] ECR 1063, in which the Court of Justice, having partially annulled a decision of the Commission, referred the matter back to the latter. The judgment in that case cannot be interpreted a contrario to exclude, in the absence of an express reference back to the institution concerned, any opportunity for that institution to eliminate the established illegality or, in the case of total annulment, to substitute a new decision for the annulled act. The scope of the obligation imposed on the institution in question by Article 176 of the Treaty is the same irrespective of whether or not the Community judicature has referred the matter back to it.

51 Enichem claims that its assessment is supported by Article 17 of Regulation No 17, which grants the Court of Justice unlimited jurisdiction to hear actions against decisions whereby the Commission has fixed a fine. In such circumstances, the Court deals with the whole of the case brought before it. That is what it did in this case, as is clear from the summary in paragraph 56 of its judgment of 15 June 1994 of the procedural and substantive pleas submitted to it. Since the Court gave no indication as to how the case was subsequently to be dealt with, for example by referring it back to the Court of First Instance, that judgment encompassed all of the arguments advanced before it.

52 That argument cannot be upheld. Article 17 of Regulation No 17 deals only with the scope of the power of the Community judicature to review the amount of the penalties imposed in competition matters, which it may annul, reduce or increase. The power conferred in that respect alone does not mean that the review of legality exercised in other respects covers all of the pleas raised if the Community judicature has ruled only on some of them.

53 It follows that this plea raised in the appeal must be rejected.

3. The plea raised by LVM, DSM and ICI alleging infringement of the principle of non bis in idem

54 Before the Court of First Instance, LVM, DSM and ICI maintained that the Commission had infringed the principle of non bis in idem by adopting a fresh decision after the Court of Justice had annulled the PVC I decision.

55 They observe that, in paragraph 96 of the contested judgment, the Court of First Instance held that the Commission cannot bring proceedings against an undertaking under Regulation No 17 and Regulation No 99/63 for infringement of Community competition rules or penalise it by the imposition of a fine 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. However, they object to the Court of First Instance's subsequent findings in paragraphs 97 and 98 of the contested judgment that, first, the annulment by the Court of Justice of the PVC I decision meant that the adoption of the PVC II decision did not result in the applicants' incurring a penalty twice for the same offence and that, second, the Commission did not take action against the applicants twice in relation to the same set of facts, since the Court of Justice did not rule, in its judgment of 15 June 1994, on any of the substantive pleas raised by the appellants.

56 According to LVM and DSM, the principle of non bis in idem applies in the case of annulment of a first decision where that annulment was ordered on the basis of a lack of evidence or of non-compliance with essential procedural requirements. The principle serves to protect the undertaking against action being taken or penalties being imposed twice, irrespective of the reason for the failure of the first measures taken against it. That interpretation is borne out by Article 4(1) of Protocol No 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR'), signed in Rome on 4 November 1950, which has in the meantime entered into force and according to which [n]o one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State'. In the Court's judgment of 15 June 1994, the appellants were acquitted' within the meaning of that provision.

57 ICI also submits that the principle of non bis in idem, which is a fundamental principle of Community law applicable to competition law (Case 7/72 Boehringer Mannheim v Commission [1972] ECR 1281), has been enshrined in Article 4(1) of Protocol No 7 to the ECHR. ICI complains that, for the purposes of dismissing the plea based on that principle, the Court of First Instance found that ICI had been relieved from having to pay the fine imposed by the PVC I decision after the latter had been annulled. According to ICI, that fact was irrelevant. The decisive question was whether the PVC II decision was based on the same conduct as that with which the Court's judgment of 15 June 1994 was concerned (see the judgment of the European Court of Human Rights of 23 October 1995 in the case of Gradinger, Series A, No 328 C, paragraph 55). That was the position in the present case.

58 ICI further submits that Article 4 of Protocol No 7 to the ECHR applies in the case of a final conviction, that is to say, where no further ordinary remedies are available or where the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them. That was the position in the present case since no further remedies were available to the appellant following delivery of the Court's judgment of 15 June 1994.

59 In that regard, it should be observed that, as is apparent from the grounds of the contested judgment, the principle of non bis in idem, which is a fundamental principle of Community law also enshrined in Article 4(1) of Protocol No 7 to the ECHR, precludes, in competition matters, an undertaking from being found guilty or proceedings from being brought against it a second time on the grounds of anti-competitive conduct in respect of which it has been penalised or declared not liable by a previous unappealable decision.

60 The application of that principle therefore presupposes that a ruling has been given on the question whether an offence has in fact been committed or that the legality of the assessment thereof has been reviewed.

61 Thus, the principle of non bis in idem merely prohibits a fresh assessment in depth of the alleged commission of an offence which would result in the imposition of either a second penalty, in addition to the first, in the event that liability is established a second time, or a first penalty in the event that liability not established by the first decision is established by the second.

62 On the other hand, it does not in itself preclude the resumption of proceedings in respect of the same anti-competitive conduct where the first decision was annulled for procedural reasons without any ruling having been given on the substance of the facts alleged, since the annulment decision cannot in such circumstances be regarded as an acquittal' within the meaning given to that expression in penal matters. In such a case, the penalties imposed by the new decision are not added to those imposed by the annulled decision but replace them.

63 Accordingly, since the Court of Justice, in its judgment of 15 June 1994, annulled the PVC I decision, including the penalties imposed thereby, without ruling on any of the substantive pleas raised by the appellants, the Court of First Instance was correct in finding that the Commission, by adopting the PVC II decision after curing the defect formally declared unlawful, had neither penalised the undertakings twice nor initiated a second procedure against them on the basis of the same facts.

64 LVM and DSM further submit that, with respect to the finding, in the context of the examination of the plea alleging infringement of the principle of non bis in idem, that the PVC I decision was to be deemed never to have existed as a result of its annulment, the Court of First Instance's reasoning was inconsistent with that set out in paragraph 1100 of the contested judgment in relation to the plea alleging expiry of the limitation period.

65 That submission is unfounded. The question of law dealt with by the Court of First Instance in paragraph 1100 of the contested judgment concerned the conditions governing suspension of the limitation period provided for in Article 3 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 (OJ 1974 L 319, p. 1), which states that [t]he limitation period in proceedings shall be suspended for as long as the decision of the Commission is the subject of proceedings pending before the Court of Justice of the European Communities'.

66 In paragraph 1098 of the contested judgment, the Court of First Instance stated that the specific purpose of Article 3 is to enable the limitation period to be suspended where the Commission is prevented from acting for an objective reason not attributable to it and connected precisely with the fact that an action is pending.

67 By adding, in paragraph 1100 of the contested judgment, that [i]t 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 judgment', it merely established that the scheme for suspension of the limitation period provided for in Regulation No 2988/74 is independent of the effect of an order annulling the decision. Moreover, in the same paragraph, it found essentially that, in fact, that suspension mechanism makes sense only in the case of actual annulment of a Commission decision, that is to say, where that decision is then deemed never to have existed.

68 It was not therefore inconsistent that, in relation to two different questions, the Court of First Instance, on the one hand, took account of the effect of the judgment annulling the PVC I decision as regards the principle of non bis in idem and, on the other hand, took into consideration the very fact that proceedings were pending before the Community judicature, independently of the content of the judgment ordering annulment and its effect on the PVC I decision, in relation to the scheme for suspension of the limitation period.

69 It follows that this plea in law must be rejected.

4. The plea raised by LVM, DSM, Elf Atochem, Degussa, Enichem and ICI alleging invalidity of the procedural measures taken prior to adoption of the PVC I decision

70 Before the Court of First Instance, LVM, DSM, Elf Atochem, Degussa, Enichem and ICI submitted that the annulment of the PVC I decision had affected all of the measures preparatory to that decision. Those measures could not therefore constitute valid measures preparatory to the PVC II decision.

71 They complain that, in paragraphs 183 to 193 of the contested judgment, the Court of First Instance rejected their plea to that effect by holding that the measures preparatory to the PVC I decision were not affected by the annulment of that decision.

72 In that connection, the Court of First Instance, relying on settled case-law to the effect that it is the grounds of a judgment ordering annulment which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part (Asteris, cited above, paragraph 27, and Case C-415/96 Spain v Commission [1998] ECR I-6993, paragraph 31) rightly held, in paragraph 184 of the contested judgment, that, in order to determine the scope of the Court's judgment of 15 June 1994, it was necessary to refer to the grounds of that judgment.

73 Annulment of a Community measure does not necessarily affect the preparatory acts (Spain v Commission, cited above, paragraph 32), since the procedure for replacing such a measure may, in principle, be resumed at the very point at which the illegality occurred (Spain v Commission, paragraph 31).

74 In paragraph 189 of the contested judgment, the Court of First Instance stated that the Court of Justice, by its judgment of 15 June 1994, had annulled the PVC I decision on account of a procedural defect affecting only the manner in which it was finally adopted by the Commission.

75 It was therefore entitled to conclude that, since the procedural defect had occurred at the final stage of adoption of the PVC I decision, the annulment did not affect the validity of the measures preparatory to that decision which were taken before the stage at which the defect was found (see, with respect to a directive, Case 331/88 Fedesa and Others [1990] ECR I-4023, paragraph 34).

76 It follows that this plea must be rejected.

5. The pleas raised by all the appellants alleging the need for new administrative procedural measures following the annulment of the PVC I decision and by ICI alleging the incompleteness of the file submitted for deliberation by the college of Commissioners at the time of adoption of the PVC II decision

77 Before the Court of First Instance, the appellants argued, in essence, that, even if the defect established by the Court's judgment of 15 June 1994 had occurred at the final stage of the adoption of the PVC I decision, the Commission could have remedied the defect only if it had complied with certain procedural guarantees before adopting the PVC II decision, since the latter was a new decision. Thus, they submitted before the Court of First Instance that the administrative procedure should either have been resumed in its entirety from the stage of notification of the statement of objections or that it should have included a fresh hearing of the undertakings concerned, a fresh consultation of the Advisory Committee and a fresh intervention by the Hearing Officer. It also submits that, accordingly, the file submitted for deliberation by the college of Commissioners did not contain documents which, had they been included, would have allowed the adoption of a decision in full knowledge of the questions of law and fact which would then have been raised.

78 In their appeals, the appellants complain that the Court of First Instance did not accept their pleas on those various points, which it is necessary to consider in turn.

(a) The absence of a fresh statement of objections

79 Montedison submits that, in accordance with Regulation No 17 and Regulation No 99/63, the Commission should have opened a fresh administrative procedure commencing with a fresh statement of objections before adopting the PVC II decision, since that was a new decision even though its content was identical to that of the PVC I decision.

80 It follows from the consideration, in paragraphs 41 to 53 of this judgment, of the plea alleging infringement of the principle of res judicata that the annulment of the PVC I decision by the Court's judgment of 15 June 1994 did not affect the validity of the prior procedural measures, including in particular the statement of objections.

81 The Commission was therefore not obliged, solely as a result of that annulment, to present the undertakings concerned with a new statement of objections.

82 Accordingly, the complaint submitted by Montedison cannot be accepted.

(b) The absence of a fresh hearing of the undertakings concerned

83 Each of the appellants submits that the annulment of the PVC I decision meant that a fresh hearing of the undertakings pursuant to Article 19(1) of Regulation No 17 was necessary for the adoption of the PVC II decision. LVM and DSM argue that that requirement arises from the fundamental principle of observance of the rights of the defence, the scope of which cannot be defined or limited by provisions of secondary law on account of the primacy of the fundamental principles of Community law.

84 The appellants also complain of the Court of First Instance's finding, in paragraphs 251 and 252 of the contested judgment, that a new hearing was not required in the absence of new objections.

85 In that regard, it should be stated that the Court of First Instance rightly observed, in paragraph 246 of the contested judgment, that, in all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of Community law which must be complied with, even if the proceedings in question are administrative proceedings (Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 9).

86 It also correctly pointed out, in paragraph 247 of the contested judgment, that Article 19(1) of Regulation No 17 and Article 4 of Regulation No 99/63, which apply that principle, require the Commission to deal in its final decision only with those objections on which the undertakings and associations of undertakings concerned have had the opportunity to put their case.

87 It was therefore entitled to conclude, in paragraph 249 of the contested judgment, that observance of the rights of the defence requires that each undertaking or association of undertakings concerned be given the opportunity to be heard as to the objections raised against each of them which the Commission proposes to deal with in the final decision finding infringement of the competition rules. In so doing, it did not lay down any limitation by the provisions of Regulation No 17 and Regulation No 99/63 of the fundamental principle of observance of the rights of the defence but in fact stated its content in relation to competition law.

88 Having gone on to declare that the PVC II decision did not contain any new objection as compared with the text of the PVC I decision, the Court of First Instance did not err in law in ruling, in paragraph 252 of the contested judgment, that no new hearing was required prior to adoption of the PVC II decision.

89 Three series of arguments have been put forward to no avail in opposition to that ruling.

90 First, LVM, DSM, Elf Atochem, Degussa, Enichem and ICI maintain that a new hearing would have enabled them to submit appropriate observations as to the consequences of the annulment of the PVC I decision. Thus, they could have commented on the need for, and the expediency of, the adoption of the PVC II decision, on issues such as the passage of time, the principles of res judicata and non bis in idem, developments in the case-law subsequent to the adoption of the PVC I decision and the access to the file which re-opening of the proceedings necessarily entails, on the obligation to have the Hearing Officer consider certain matters, on the obligation to consult the Advisory Committee, on the implications of Article 20 of Regulation No 17 and on the development of the PVC market since 1988.

91 In that connection, it must be pointed out that the assertion of a right to submit observations on the need for, and the expediency of, the adoption of a new decision after the annulment of the PVC I decision exceeds the parameters of the rights of the defence as laid down by Regulations Nos 17 and 99/63, which are limited to questions concerning the truth and relevance of the facts and matters alleged and the documents used by the Commission to support its claim that there has been an infringement of competition law (Hoffmann-La Roche, cited above, paragraph 11). The rights of the defence were observed prior to adoption of the PVC I decision. At the initial hearings, the undertakings concerned were able to submit their observations on the objections raised by the Commission, which then served as the basis of the assessment for the purposes of adoption of the PVC II decision.

92 Developments in the case-law or in the economic context cannot in themselves render new hearings necessary, any more than if they occur in the course of administrative proceedings prior to a final decision.

93 By the same token, the questions of law which may arise in the context of the application of Article 176 of the Treaty, such as those relating to the passage of time, the possibility of resuming proceedings, the access to the file required on resumption of the proceedings, the intervention of the Hearing Officer and the Advisory Committee and the possible implications of Article 20 of Regulation No 17, do not render a new hearing necessary since they do not alter the substance of the objections, being at most amenable to subsequent judicial review.

94 Second, LVM and DSM dispute the finding by the Court of First Instance that the PVC II decision contains no new objection as compared with the PVC I decision. In that regard, they allege that important amendments' were made in the PVC II decision as compared with the PVC I decision, namely a new operative part, amendments to the statement of reasons as regards the facts and law and a new chapter concerning prescription. More generally, LVM and DSM consider that the relevant legal test is not whether it is possible to qualify new facts and circumstances as objections' but only whether there are new facts and circumstances in respect of which the undertakings have not yet submitted observations. In this case, the new facts include the issues referred to in paragraph 90 of this judgment, in respect of which the appellants wished to submit observations, and the amendments to the PVC II decision.

95 Elf Atochem asserts that the Commission was required to hold new hearings by virtue of the sole fact that, according to the appellant, the PVC II decision contains new facts' as compared with the PVC I decision. First, the PVC II decision excludes Norsk Hydro and Solvay, which are no longer the subject of the proceedings. Second, those two companies nevertheless continue to be referred to with respect to the collective conduct alleged against the undertakings to which the PVC II decision is addressed, so that the two successive decisions of the Commission concern alleged agreements or concerted practices in respect of which the participants proceeded against in 1994 are different from those proceeded against in 1998. Third, the PVC II decision contains arguments relating to limitation, which are intended to justify the right to adopt a new decision. According to Elf Atochem, it is in any event of little relevance whether the new decision contains new objections. A new hearing is always required. The Commission cannot simply repeat the objections contained in a previous annulled decision. Every decision adopted by the Commission must contain its own set of objections.

96 In that regard, it should be observed that, contrary to what LVM and DSM claim, the differences between the operative parts of the PVC I and the PVC II decisions and the arguments relating to limitation do not constitute a new objection upheld by the Commission in the PVC II decision. The appellants do not state which of the alleged amendments of fact and law indicate, in their view, that new objections were taken into account; nor do they show how those amendments actually relate to such objections.

97 Moreover, contrary to the claims made both by LVM and DSM and by Elf Atochem, the mere existence of differences between the two successive decisions

of the Commission did not in itself render new hearings necessary, since those differences did not involve the consideration of new objections.

98 Where, following the annulment of a decision in a competition matter, the Commission chooses to rectify the illegality or illegalities found and to adopt a new identical decision which is not vitiated by those illegalities, that decision relates to the same objections as those in respect of which the undertakings have already submitted observations. Elf Atochem cannot therefore validly maintain that the PVC I and the PVC II decisions each refer to separate sets of complaints.

99 It must additionally be stated that the differences between the PVC I and PVC II decisions with respect to Norsk Hydro and Solvay are merely the result of the scheme of legal remedies available against a decision adopted in a competition matter with respect to several enterprises.

100 Although drafted and published as a single decision, such a decision must be regarded as a group of individual decisions establishing, in relation to each of the undertakings to which it is addressed, the breach or breaches which that undertaking has been found to have committed and, where appropriate, imposing on it a fine. It can be annulled only with respect to those addressees which have successfully brought an action before the Community judicature, and remains binding on those addressees which have not applied for its annulment (see, to that effect, Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraph 49 et seq.).

101 In this case, Solvay did not bring an action against the PVC I decision and the action brought against that decision by Norsk Hydro was declared inadmissible by the order in Norsk Hydro, cited above.

102 Therefore, since the PVC I decision had become final in relation to those two undertakings, they could no longer be addressees of the PVC II decision. Nevertheless, to the extent that they were involved in the objections raised with respect to all the undertakings initially implicated, their respective roles could be taken into account by the Commission in the PVC II decision in so far as they related to the objections raised against the addressees of that decision for the purposes of establishing the infringements found to have been committed by those addressees, each within the limits of its own liability. The PVC I and PVC II decisions do not therefore relate to agreements or concerted practices in respect of which the participants proceeded against in 1994 are different from those proceeded against in 1988. They concern the same agreements or concerted practices in respect of the same undertakings which, solely by virtue of the application of procedural rules, were penalised by two successive decisions.

103 The arguments relating to limitation in respect of the PVC II decision, alleged by Elf Atochem to constitute a third difference as compared with the PVC I decision, are clearly unrelated to any new objection, since they do not concern any conduct other than that in respect of which the undertakings had already submitted observations.

104 Finally, Wacker-Chemie and Hoechst complain that the Court of First Instance did not accept the need for new hearings in the absence of new objections even though the PVC II decision extended the duration of the infringement found to have been committed, was unfounded as regards the order to terminate the infringement made in Article 2 of the decision and did not determine the amount of the fine in accordance with Article 15(2) of Regulation No 17.

105 Solely as a result of the date of adoption of the PVC II decision, the duration of the infringement found to have been committed was extended by five and a half years as compared with the infringement established as at the date of adoption of the PVC I decision.

106 However, Articles 1 and 3 of the PVC II decision, like Articles 1 and 3 of the PVC I decision respectively, stated that the appellants had participated in the infringement found to have been committed and imposed fines on those undertakings. As regards, in particular, Wacker-Chemie and Hoechst, point 54 of the account of the facts contained in each of the PVC I and PVC II decisions states that the amount of the fines was assessed on the basis that their participation in the cartel continued until at least May 1984'. Consequently, the adoption of the PVC II decision on 27 July 1994 did not have the effect of prolonging the infringement penalised as compared with the PVC I decision, since the duration of the infringement actually taken into account was the same.

107 Wacker-Chemie and Hoechst submit that the order to terminate the infringement presupposes the existence of proof that the infringement was continuing at the time of adoption of the PVC II decision and that, in the absence of such proof, the legal basis of that order had been eliminated as a result of the passage of time. They further assert that they had definitively terminated their activity on the PVC market before the adoption of the PVC II decision, and could not therefore be required to terminate any infringement.

108 However, it should be observed that, in point 50 of the of the account of the facts contained in both the PVC I and the PVC II decisions, the Commission stated that, notwithstanding assurances given by some undertakings during the administrative procedure, it did not know whether meetings or at least some communication between firms on prices and volumes have in fact ever ceased'. It therefore concluded that it was necessary to include in any decision a formal requirement that those undertakings still active in the PVC sector terminate the infringement'. It therefore ordered the undertakings, in Article 2 of the PVC II decision as previously in Article 2 of the PVC I decision, to terminate the infringement immediately if they have not already done so'. The order made was thus directed only at those undertakings which were still committing the infringement at the time of adoption of the decision. Just as in the PVC I decision, the order made in the PVC II decision was therefore simply irrelevant as regards those undertakings which had already terminated the infringement by the date of its adoption. It was also irrelevant in relation to Wacker-Chemie and Hoechst if, as they maintain, they had definitively terminated their activities on the PVC market, since Article 2 of the PVC II decision, like Article 2 of the PVC I decision, refers to undertakings still involved in the PVC sector'.

109 Finally, with respect to the determination of the amount of the fine, Wacker-Chemie and Hoechst submit that a fine imposed some considerable time after the alleged offences need not lead to the same result as a penalty imposed immediately after the infringement and that the Commission should have determined the turnover for the last business year prior to the PVC II decision in accordance with Article 15(2) of Regulation No 17, which provides that the maximum fine which can be imposed is 10% of the turnover realised in the preceding business year.

110 In that connection, it must be pointed out that the obligation to take into account the turnover for the preceding business year arises at the stage of the final decision of the Commission for the purposes of determining the maximum amount of the fine. The need to ascertain that turnover therefore arises after the hearing of the undertakings, which is designed to enable them to submit their observations on the objections raised against them. Furthermore, it arises only if, at the end of the hearing, the Commission considers that the infringement has been established. Accordingly, the appellants' argument is irrelevant for the purposes of establishing, in the present case, the existence of an obligation to hold a new hearing.

111 It follows that the objection concerning the absence of a new hearing of the undertakings concerned must be rejected.

(c) The objection that the Advisory Committee was not re-consulted

112 All of the appellants submit that the annulment of the PVC I decision necessitated a fresh consultation of the Advisory Committee, pursuant to Article 10(3) of Regulation No 17, for the purposes of adopting the PVC II decision.

113 They complain that the Court of First Instance, in paragraphs 256 and 257 of the contested judgment, held that a fresh consultation of the Advisory Committee would only have been required if a new hearing had itself been necessary.

114 In that connection, it should be observed that Article 1 of Regulation No 99/63 states that:

Before consulting the Advisory Committee on Restrictive Practices and Dominant Positions, the Commission shall hold a hearing pursuant to Article 19(1) of Regulation No 17'.

115 In paragraph 256 of the contested judgment, the Court of First Instance rightly observed that, pursuant to that provision, the hearing of the undertakings concerned and the consultation of the Advisory Committee are necessary in the same situations (Joined Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859, paragraph 54).

116 It has already been established in this case that the annulment of the PVC I decision did not affect the validity of the administrative procedural measures preceding the adoption of that decision and that new hearings were not required.

117 Thus, in accordance with Article 10(3) of Regulation No 17 and Article 1 of Regulation No 99/63, the PVC II decision in fact followed up' a procedure establishing an infringement under Article 85 of the Treaty and was preceded by the hearings of the undertakings concerned and by delivery of the opinion of the Advisory Committee on 1 December 1988.

118 In those circumstances, since the PVC II decision did not contain substantial amendments as compared with the PVC I decision, on a draft of which the Advisory Committee had been consulted pursuant to Article 10(5) of Regulation No 17, the Court of First Instance was right to hold, in paragraph 257 of the contested judgment, that fresh consultation of the Advisory Committee was not required (see, by analogy, with respect to consultation of the Parliament during the legislative process, Case C-392/95 Parliament v Council [1997] ECR I-3213, paragraph 15).

119 It follows that the complaint concerning the absence of any fresh consultation of the Advisory Committee must be rejected.

(d) The absence of any fresh intervention by the Hearing Officer

120 Degussa, Enichem and ICI claim that the Commission should also have involved the Hearing Officer, whose new role had in the interim been defined by the Commission's decision of 24 November 1990 on the hearings in proceedings relating to Articles 85 and 86 of the EEC Treaty and Articles 65 and 66 of the ECSC Treaty (XXth Report on Competition Policy, p. 350, hereinafter the decision of 24 November 1990').

121 They object to the finding by the Court of First Instance, in paragraph 253 of the contested judgment, that, since the Commission was not required to hold a new hearing of the undertakings concerned, it could not be in breach of its decision of 24 November 1990, which was not applicable ratione temporis to the oral stage of the administrative procedure which preceded adoption of the PVC II decision.

122 In that connection, it should be pointed out that the Commission created the office of hearing officer with effect from 1 September 1982 in accordance with the Notice on procedures for applying the competition rules of the EEC and the ECSC Treaties (Articles 85 and 86 (EEC) and 65 and 66 (ECSC))' published in the Official Journal of the European Communities of 25 September 1982 (OJ 1982 C 251, p. 2).

123 In the notice cited above, it defined the office as follows:

The Hearing Officer shall ensure that the hearing is properly conducted and thus contribute to the objectivity of the hearing itself and of any decision taken subsequently. He shall seek to ensure in particular that in the preparation of draft Commission decisions in competition cases due account is taken of all the relevant facts, whether favourable or unfavourable to the parties concerned.

In performing his duties he shall see to it that the rights of the defence are respected, while taking account of the need for effective application of the competition rules in accordance with the regulations in force and the principles laid down by the Court of Justice.'

124 The functions of the hearing officer were set out in a text published as an annex to the XIIIth Report on Competition Policy, relating to 1983. The wording of Article 2 of that report was identical to that of the initial definition. The text was itself replaced by the decision of 24 November 1990 and the terms of Article 2 of that decision were likewise identical to those of the initial definition.

125 It follows from what was actually involved in the task entrusted to the Hearing Officer who intervened in the procedure prior to adoption of the PVC I decision that the intervention in question was necessarily linked to the hearing of the undertakings with a view to the possible adoption of a decision.

126 Accordingly, having correctly held that a new hearing was not necessary following the annulment of the PVC I decision, the Court of First Instance was right to conclude, in paragraph 253 of the contested judgment, that a fresh intervention by the Hearing Officer in the circumstances provided for in the decision of 24 November 1990, which had meanwhile become applicable, was no longer required.

127 It follows that the complaint concerning the absence of any fresh intervention by the Hearing Officer must be rejected.

(e) The composition of the file submitted to the college of Commissioners for deliberation

128 ICI considers that, as a result of defects in the administrative procedure prior to adoption of the PVC I decision, the college of Commissioners was unable to consider all the relevant documents, particularly a fresh report by the Hearing Officer and a fresh report on the outcome of consultation of the Advisory Committee. The college of Commissioners, the composition of which was different from that of the college which adopted the PVC I decision, thus had at its disposal only the submissions of the parties lodged six years earlier, the report of the Hearing Officer drawn up around that time and the opinion of the Advisory Committee, also dating from 1988.

129 It complains that the Court of First Instance dismissed this plea in paragraph 316 of the contested judgment.

130 It should be noted in that regard that, in paragraph 315 of the contested judgment, the Court of First Instance correctly pointed out that, after the annulment of the PVC I decision, the Commission did not commit any error in law by not carrying out a fresh hearing of the undertakings concerned before adopting the PVC II decision.

131 Furthermore, it follows from paragraphs 122 to 127 and 114 to 119 of this judgment that neither a fresh intervention by the Hearing Officer nor a fresh consultation of the Advisory Committee was required.

132 Accordingly, contrary to what ICI maintains, the file submitted to the college of Commissioners did not have to contain, inter alia, a new report by the Hearing Officer or a fresh report on the consultation of the Advisory Committee.

133 The Court of First Instance was therefore right to rule, in paragraph 316 of the contested judgment, that ICI's argument concerning the composition of the file was based on a false premiss and that its plea was accordingly without legal foundation.

134 It therefore follows from all the above considerations that these pleas must be rejected.

6. The plea raised by LVM, DSM, Montedison and ICI alleging expiry of the limitation period for penalising infringements

135 LVM, DSM, Montedison and ICI complain that, in paragraph 1089 et seq. of the contested judgment, the Court of First In