Case T-410/03

Hoechst GmbH

v

Commission of the European Communities

(Competition – Agreements, decisions and concerted practices – Market in sorbates – Decision finding an infringement of Article 81 EC – Calculation of the amount of the fines – Obligation to state the reasons on which the decision is based – Gravity and duration of the infringement – Aggravating circumstances – Principle non bis in idem – Cooperation during the administrative procedure – Access to the file – Duration of the procedure)

Summary of the Judgment

1. Competition – Administrative procedure – Breach resulting from the obligation placed on the Commission – Respect for the principles of sound administration and equal treatment

(Council Regulation No 17, Arts 15(2) and 17; Commission Notice 96/C 207/04)

2. Competition – Administrative procedure – Respect for the rights of the defence – Access to the file

(Art. 81(1) EC; Council Regulation No 17, Arts 19(1) and 20)

3. Competition – Administrative procedure – Bringing infringements to an end – Commission’s powers – Injunctions addressed to undertakings

(Council Regulation No 17, Art. 3(1))

4. Competition – Administrative procedure – Limitation period for fines – Exclusive application of Regulation No 2988/74

(Council Regulation No 2988/74, Art. 2(1) and (3))

5. Competition – Fines – Decision imposing fines – Obligation to state the reasons on which the decision is based – Scope

(Art. 253 EC; Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03)

6. Competition – Fines – Amount – Determination – Criteria – Discretion of the Commission

(Council Regulation No 17, Art. 15(2))

7. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 1A)

8. Competition – Fines – Amount – Determination – Criteria – Division of undertakings concerned into categories having the same starting point

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 1A)

9. Competition – Fines – Amount – Determination – Criteria – Deterrent effect of the fine

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 1A, fourth and fifth paras)

10. Competition – Fines – Amount – Determination – Criteria – Duration of the infringement

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 1B, first and third paras)

11. Competition – Fines – Amount – Determination – Criteria – Gravity and duration of the infringement

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 1A and B)

12. Competition – Administrative procedure – Statement of objections – Necessary content – Respect for the rights of the defence

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03, point 2)

13. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Repeated infringement

(Council Regulation No 17, Art. 15(2); Commission Notice 98/C 9/03)

14. Competition – Fines – Amount – Determination – Non-imposition or reduction of the fine for cooperation of the undertaking concerned with the Commission

(Council Regulation No 17, Art. 15(2); Commission Notices 96/C 207/04 and 2002/C 45/03)

15. Competition – Fines – Amount – Determination – Criteria – Taking into account of the cooperation of the undertaking concerned with the Commission

(Council Regulation No 17, Art. 15(2); Commission Notice 96/C 207/04, title B)

16. Competition – Fines – Community sanctions and sanctions imposed in a non-member State for breach of national competition law

(Art. 3(1)(g) EC; Council Regulation No 17, Art. 15)

1. Within the framework of the application of the Notice on the non-imposition or reduction of fines in cartel cases, the Commission fails to have regard to the principles of sound administration and equal treatment when it provides one of the cooperating undertakings with an assurance that it will be warned if other undertakings attempt to overtake it in relation to cooperation, even if that assurance is not in fact subsequently implemented.

Where that procedural irregularity cannot lead to the annulment of the Commission’s final decision, the importance of the observance of those principles by the Commission may justify, in favour of an undertaking which has been the victim of that irregularity, a reduction in the fine by the Community judicature, in the exercise of its unlimited jurisdiction.

(see paras 136-137, 581-582)

2. The right of access to the file, which is a corollary of the principle of respect for the rights of the defence, means in competition cases that the Commission provides the undertaking concerned with the opportunity to examine all the documents in the investigation file that might be relevant for its defence. Those documents comprise both inculpatory and exculpatory evidence, with the exception of business secrets of other undertakings, internal documents of the Commission and other confidential information.

The Commission cannot, however, make a general reference to confidentiality to justify a total refusal to disclose documents in its file. The right of undertakings and associations of undertakings to protect their business secrets must be balanced against the safeguarding of the right to have access to the whole of the file.

In that regard, the fact that access is given to the non-confidential version of a document forming part of the Commission’s file, virtually all of the pages of which are blank and marked ‘Business secrets’, without a more comprehensible non-confidential version, or even a summary of the content of those documents, being provided, may bear a close relationship to failure to disclose that document.

(see paras 145, 152-153)

3. The application of Article 3(1) of Regulation No 17 may include a prohibition on pursuing certain activities or practices or on allowing situations which have been found to be unlawful to continue, but also a prohibition on adopting similar future conduct. Such obligations on undertakings must not however exceed the limits of what is appropriate and necessary to achieve the aim pursued. Furthermore, the Commission’s power to issue injunctions is to be applied according to the nature of the infringement found.

The fact that an undertaking which took part in anti-competitive practices is no longer involved in the market concerned on the date of adoption of the Commission decision imposing sanctions in regard to those practices, or that those practices ceased before the adoption of the decision, does not mean that the Commission exceeds the powers conferred on it by Article 3(1) of Regulation No 17 by enjoining that undertaking to refrain from any anti-competitive act or conduct, as such an injunction is by nature preventive and does not depend on the situation of the undertaking concerned at the time of adoption of the decision.

(see paras 198-200)

4. While the fact that a reasonable period is exceeded may, in certain circumstances, justify annulment of a decision finding an infringement of the competition rules, that does not apply where what is being disputed is the amount of the fines imposed by that decision, since the Commission’s power to impose fines is governed by Regulation No 2988/74 concerning limitation periods in proceedings and the enforcement of sanctions under the rules relating to competition, which established a limitation period for that purpose. That regulation established a complete system of rules covering in detail the periods within which the Commission is entitled, without undermining the fundamental requirement of legal certainty, to impose fines on undertakings which are the subject of procedures under the Community competition rules. Article 2(3) of that regulation provides that, subject to any suspension, the limitation period expires in any event after 10 years where it is interrupted pursuant to Article 2(1) of that regulation, so that the Commission cannot put off a decision about fines indefinitely without incurring the risk of the limitation period expiring. In the light of those rules, there is no room for consideration of the Commission’s duty to exercise its power to impose fines within a reasonable period.

(see paras 220, 223-224)

5. A Commission decision imposing fines on a number of undertakings for an infringement of the Community competition rules contains, with respect to the classification of the undertakings concerned in different categories for the purposes of determining the starting amount of the fine, a sufficient statement of reasons when the Commission states that it took as a basis the worldwide market shares obtained on the basis of the worldwide turnover for the relevant product, even if, on grounds of confidentiality, it does not specify those turnovers but merely indicates brackets of market shares, as those factors are sufficiently comprehensible.

(see paras 258-259, 261, 263-265)

6. When determining the amount of a fine imposed for infringement of the Community competition rules, the Commission has a discretion. Under Article 15(2) of Regulation No 17, the amount of the fine is to be determined on the basis of the gravity of the infringement and its duration. In addition, that amount is the result of a series of arithmetical calculations performed by the Commission in accordance with the Guidelines. That amount is set, inter alia, on the basis of various factors linked to the individual conduct of the undertaking in question, such as the existence of aggravating or attenuating circumstances.

It cannot be inferred from that legal framework that the Commission must ensure a proportion between the amount of the fine, as thus calculated, and the overall volume of the relevant product market in the European Economic Area, for a given year of the infringement.

(see para. 342)

7. The three aspects to be taken into consideration in the assessment of the gravity of the infringement, which, according to the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, are the very nature of the infringement, its actual impact on the market, where this can be measured, and the size of the relevant geographic market, do not have the same weight in the context of the global examination. The nature of the infringement plays a preponderant role, in particular, in characterising ‘very serious’ infringements. In that regard, it follows from the description of very serious infringements in those guidelines that agreements or concerted practices aimed, in particular, at setting prices or the allocation of sales quotas may entail, solely on the basis of their very nature, the characterisation as ‘very serious’, without there being any need to characterise such conduct by a particular impact.

(see paras 343, 345)

8. Although a Commission decision imposing sanctions which is addressed to different undertakings which have participated in an unlawful cartel is drafted in the form of a single decision, it must be analysed as a bundle of individual decisions finding in respect of each of the undertakings to which it is addressed the infringement or infringements alleged and imposing fines on them. The Commission may therefore examine separately the situation of the different undertakings concerned and divide them into categories in order to determine the individual contribution of each undertaking to the success of the cartel even where, within the cartel, a set of undertakings has always engaged in concerted conduct.

(see paras 308, 360, 365)

9. When determining the amount of a fine to be imposed for infringement of the competition rules in accordance with the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty, the Commission may apply an increase to the starting amount to take account of the undertaking’s size and global resources.

First, the need to ensure that the fine has a sufficient deterrent effect requires that the amount of the fine be adjusted in order to take account of the desired impact on the undertaking on which it is imposed, so that the fine is not rendered negligible, or on the other hand excessive, notably by reference to the financial capacity of the undertaking in question, in accordance with the requirements resulting from, first, the need to ensure that the fine is effective and, second, respect for the principle of proportionality. The Commission may take account of the fact that, owing to its worldwide turnover by comparison with that of the other members of the cartel, the undertaking concerned would find it easier to find the funds necessary to pay its fine, which, in order to ensure that the fine is sufficiently deterrent, justifies the application of a multiplier. In that context, the financial resources of the undertaking must be assessed, in order to achieve properly the objective of deterrence, while observing the principle of proportionality, on the date on which the fine is imposed. In that regard, for the same reasons, it must be noted that, in the context of Article 15(2) of Regulation No 17, the upper limit of the fine, fixed at 10% of the turnover of the undertaking concerned, is determined by reference to the turnover achieved during the business year preceding the decision.

Second, the Commission may take into account the legal and economic infrastructures which place undertakings in a better position to recognise that their conduct constitutes an infringement. That factor is intended to impose a more severe penalty on large undertakings, which are presumed to have knowledge and sufficient structural means to be aware that their conduct constitutes an infringement and to evaluate the advantages to be gained from it. In that hypothesis, the turnover on the basis of which the Commission determines the size of the undertakings concerned, and therefore their ability to determine the nature and the consequences of their conduct, must relate to their situation at the time of the infringement.

An increase of 100% of the starting amount of the fine to take account of the size and overall resources of the undertakings concerned does not exceed the limits laid down in Article 15(2) of Regulation No 17 and in the Guidelines.

(see paras 374, 379, 382, 387)

10. Whilst it is true that the third paragraph of Section 1 B of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty speaks, with respect to long-term infringements of the competition rules, of a ‘significant increase’ in the starting amount of the fine, the use of those words does not, however, permit the conclusion that an increase in excess of 100% for an infringement lasting more than 10 years would be contrary to the calculation method provided for in those guidelines or would exceed the limits fixed by those guidelines or by Article 15(2) of Regulation No 17. Even though the third indent of the first paragraph of Section 1 B of the Guidelines does not provide for an automatic increase of 10% per year for long-term infringements, it leaves a margin of discretion in that regard to the Commission, which may fix such an increase without breaching the principle of proportionality.

(see paras 395-396)

11. Even on the assumption that certain kinds of cartels, such as cartels on prices and sales volumes, are intrinsically conceived in order to last, a distinction must always be drawn, in application of Article 15(2) of Regulation No 17, between the duration of their actual functioning and their gravity as resulting from their actual nature. The increase for the duration of the infringement therefore does not take account of the gravity of the infringement for a second time.

(see paras 397-398)

12. In the context of an administrative procedure in competition matters, the Commission fails to respect an undertaking’s rights of defence when it establishes an aggravating circumstance as against that undertaking on the basis of elements of fact which, although mentioned at various points in its statement of objections, were, taken as a whole, insufficiently precise as to their scope and characterisation, so that it is only at the decision stage that those elements were brought together into a single part and the objection became clearly apparent.

(see paras 424, 431, 433)

13. The Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty refer to an ‘infringement of the same type’ by the same undertaking. In those circumstances, once an undertaking commits an infringement of the same type, even though the economic sector concerned is a different one, the Commission may find that there is an aggravating circumstance.

In that regard, the Commission cannot find that an undertaking has committed a repeated infringement by referring to a previous decision imposing a penalty on that undertaking for an infringement of the same type where that decision was annulled by the Community judicature before the decision making a finding of repeated infringement was adopted. Article 231 EC provides that where an action for annulment is well founded, the Court is to declare the contested act void.

On the other hand, the Commission may rely on a previous decision imposing a penalty on that undertaking for an infringement of the same type but which was the subject of an action for annulment pending before the Community judicature when a stay of execution was not even sought. Such a decision, in accordance with the first paragraph of Article 256 EC, is enforceable, provided that it imposes a pecuniary burden on persons other than the States, notwithstanding the initiation of an action for annulment, since under Article 242 EC an action before the Community judicature does not have suspensory effect.

If, in order to make a finding of repeated infringement, the Commission relied on a number of previous decisions imposing sanctions on the undertaking concerned, one of which was annulled before the adoption of the decision finding a repeated infringement, the error on the Commission’s part does not call in question either the characterisation of repeated infringement, which is sufficiently supported by the other previous decisions, or the rate of increase applied, at least where there is nothing to indicate that the Commission’s finding that the repeated infringement followed a number of previous infringements gave rise to a greater increase in the fine for an aggravating circumstance than would have been determined if only a single previous infringement had been identified.

(see paras 465-466, 468-470, 474)

14. Where the undertakings concerned by a cartel procedure began to cooperate with the Commission before the adoption of the 2002 Notice on immunity from fines and reduction of fines in cartel cases and where those undertakings relied on the previous 1996 Notice on the non-imposition or reduction of fines in cartel cases, the latter provision is the only one applicable, even though the Commission definitively ruled only after the adoption of the 2002 Leniency Notice and, in particular, on the question of which undertaking, if any, could benefit from immunity from a fine. While it is true that, in such a hypothesis, the effects of the acts of cooperation were produced after the adoption of the 2002 Leniency Notice, the future rule applies immediately to the future effects of the situation which arose under the former rule only in the absence of transitional provisions. However, Section 28 of the 2002 Leniency Notice clearly provides that that notice is to apply from 14 February 2002 for all cases for which no undertaking has relied on the 1996 Leniency Notice.

Nor can that conclusion be called in question by reliance on the ‘most favourable provision’ principle. Without there being any need to determine whether such a principle might apply to the Commission’s Lenience Notices, it is not possible to characterise the 2002 Leniency Notice as being more favourable overall than the 1996 Leniency Notice, which is amended on several points, as regards both the substantial rules and the procedural rules, some amendments being more favourable to the undertakings concerned, while others are not.

Last, any application by analogy of the 2002 Leniency Notice must be rejected, since this situation may be distinguished from cases in which the 1996 Leniency Notice was applied by analogy to procedures which had commenced before the adoption of that notice but which were not subject to any other legal rule.

(see paras 507-511)

15. The grant of total immunity or a reduction in the amount of the fine under Section B of the 1996 Notice on the non-imposition or reduction of fines in cartel cases requires, in particular, that the undertaking concerned has been the first to adduce decisive evidence of the cartel’s existence. In that regard, while such evidence need not necessarily be sufficient in itself to establish the existence of the cartel, it must none the less be decisive for that purpose. It must therefore not be simply an indication as to the direction which the Commission’s investigation should take but must be material which may be used directly as the principal evidence supporting a decision finding an infringement. That evidence may also be adduced orally.

The Commission has a certain discretion in determining whether, for the performance of its task of finding the existence of an infringement and putting an end to it, the cooperation in question was decisive and it is only where it manifestly exceeds that discretion that it may be criticised by the Community judicature.

The Commission does not make a manifest error of assessment where it considers that an undertaking which provided it at a meeting with a detailed oral description of the activities and functioning of a cartel, supported by relevant documentary evidence to prove its existence, was the first to cooperate within the meaning of Section B of the 1996 Leniency Notice, when another undertaking had, at an earlier meeting, provided a less detailed account of the cartel which did not accurately reflect the object and the functioning of the cartel and which was not supported by any documentary evidence.

(see paras 552-555, 568-569)

16. The application of the principle non bis in idem is subject to a threefold condition of identity of the facts, unity of the offender and unity of the protected legal interest. That principle therefore precludes a penalty being imposed on the same person more than once for the same unlawful conduct for the purpose of protecting the same legal asset.

With respect to penalties for infringement of the competition rules, that principle does not apply to situations in which the legal orders and the competition authorities of non-member States intervened in the exercise of their own powers.

In the case of a worldwide cartel, for which penalties are imposed both by the competition authorities of a non-member State and by the Commission, that principle cannot therefore apply, even though the facts at issue before the former and the latter have their origin in the same set of agreements, because the legal interests protected are different. The Commission’s action seeks to protect free competition within the common market, which, under Article 3(1)(g) EC, constitutes a fundamental objective of the Community, whereas, if the procedure initiated by the authorities of a non-member State relates to the application of the cartel or its effects other than on the territory of that State, and in particular in the European Economic Area, that would manifestly encroach on the territorial jurisdiction of the Commission.

For the same reasons, considerations relating to fairness, and aimed at securing the deduction from the fine imposed of the penalty imposed by the authorities of the non-member State, cannot be upheld.

(see paras 600-605)

JUDGMENT OF THE COURT OF FIRST INSTANCE (Fifth Chamber)

18 June 2008( )

(Competition – Agreements, decisions and concerted practices – Market in sorbates – Decision finding an infringement of Article 81 EC – Calculation of the amount of the fines – Obligation to state the reasons on which the decision is based – Gravity and duration of the infringement – Aggravating circumstances – Principle non bis in idem – Cooperation during the administrative procedure – Access to the file – Duration of the procedure)

In Case T‑410/03,

Hoechst GmbH, formerly Hoechst AG, established in Frankfurt am Main (Germany), represented initially by M. Klusmann and V. Turner, then by M. Klusmann, V. Turner and M. Rüba, and finally by M. Klusmann and V. Turner, lawyers,

applicant,

v

Commission of the European Communities, represented initially by W. Mölls, O. Beynet and K. Mojzesowicz, and subsequently by W. Mölls and K. Mojzesowicz, acting as Agents, assisted by A. Böhlke, lawyer,

defendant,

APPLICATION for annulment, so far as the applicant is concerned, of Commission Decision 2005/493/EC of 1 October 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Chisso Corporation, Daicel Chemical Industries Ltd, Hoechst AG, The Nippon Synthetic Chemical Industry Co. Ltd and Ueno Fine Chemicals Industry Ltd (Case No COMP/E‑1/37.370 – Sorbates) (Summary in OJ 2005 L 182, p. 20), or, in the alternative, a reduction to an appropriate level of the amount of the fine imposed on the applicant,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fifth Chamber),

composed of M. Vilaras, President, F. Dehousse and D. Šváby, Judges,

Registrar: K. Andová, Administrator,

having regard to the written procedure and further to the hearing on 8 February 2007,

gives the following

Judgment

Facts

1 By Decision 2005/493/EC of 1 October 2003 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement against Chisso Corporation, Daicel Chemical Industries Ltd, Hoechst AG, The Nippon Synthetic Chemical Industry Co. Ltd and Ueno Fine Chemicals Industry Ltd (Case No COMP/E‑1/37.370 – Sorbates) (‘the Decision’), the Commission found that a number of undertakings had infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area (EEA) by participating in a cartel on the sorbates market.

2 The undertakings to which the Decision was addressed are Chisso Corporation, Daicel Chemical Industries Ltd (‘Daicel’), The Nippon Synthetic Chemical Industry Co. Ltd (‘Nippon Synthetic’), Ueno Fine Chemicals Industry Ltd (‘Ueno’), all established in Japan, and the applicant, Hoechst AG, subsequently Hoechst GmbH, established in Germany.

3 The period during which the infringement was found to have been committed lasted from 31 December 1978 until 31 October 1996 (for Chisso, Daicel, Ueno and Hoechst) and from 31 December 1978 until 30 November 1995 (for Nippon Synthetic).

4 ‘Sorbates’, as defined in the Decision, are chemical preservatives (anti-microbial agents) capable of retarding or preventing growth of micro-organisms, such as yeast, bacteria, moulds or fungi. They are used essentially in food and beverages. Sorbates sometimes also preserve other food characteristics such as flavour, colour, texture and nutritional value. In addition, sorbates are also used to stabilise other types of products such as pharmaceutical products, cosmetics, pet food and animal feed (recital 56 to the Decision).

5 According to the Decision, there are three types of sorbates. First, sorbic acid is the main product, from which other sorbates derive. It is a technically complex substance to produce and of limited application owing to its low solubility in water. Second, potassium sorbate is used where high water solubility is desired. Third, calcium sorbate is used for the coating of cheese wrapping paper in France and Italy. Sorbic acid represents almost 30% of sorbates sales in Western Europe, potassium sorbate represents 70% and calcium sorbate represents a residual part (recitals 57 to 61 to the Decision).

6 At the material time there were seven large suppliers of sorbates at worldwide level: two undertakings were European (Hoechst and Cheminova A/S); one was in the United States (Monsanto, later Eastman Chemical Company); and the remaining four undertakings were Japanese (Chisso, Daicel, Nippon Synthetic and Ueno) (recital 64 to the Decision).

7 Until September 1997, when it transferred its sorbates business to one of its wholly-owned subsidiaries (Nutrinova Nutrition Specialities & Food Ingredients GmbH, ‘Nutrinova’), Hoechst was the main operator on the worldwide market (more than 20% in 1995) and on the European market (more than 45% in 1995). Hoechst was followed by Chisso, Daicel, Nippon Synthetic and Ueno (each of which had between 9.5 and 15% of the European market for the same year (recitals 65 and 70 (Table I of the Decision)).

8 According to recitals 4 and 5 to the Decision, lawyers acting for Chisso met the representatives of the Commission’s services on 29 September 1998 in order to inform the Commission that Chisso was willing to cooperate within the framework of the Commission Notice of 18 July 1996 on the non-imposition or reduction of fines in cartel cases (OJ 1996 C 207, p. 4, ‘the 1996 Leniency Notice) concerning a worldwide cartel on the sorbic acid market.

9 On 27 October 1998 Nutrinova’s lawyer also contacted the Commission’s services and informed them that Nutrinova was willing to cooperate within the framework of the 1996 Leniency Notice.

10 On 29 October 1998, at a meeting between lawyers acting for Hoechst and Nutrinova and the Commission’s services, an oral description of the relevant market, the producers, market shares, the proceedings in the United States and the cartel’s activities was provided.

11 On 13 November 1998, Chisso provided an oral description of the cartel’s activities to the Commission’s services and supplied documentary evidence.

12 On 9 December 1998 the Commission’s services received oral testimony from Chisso’s representative in the cartel, who supplied explanations and clarifications about the documents submitted on 13 November 1998.

13 On 21 December 1998 Nutrinova submitted a memorandum on the sorbates market.

14 On 19 March and 28 April 1999 Nutrinova submitted a memorandum setting out the anti-competitive activities affecting the sorbates market and documentary evidence.

15 On 20 April 1999 Chisso submitted a declaration confirming and expanding upon the oral statement made at the meeting of 13 November 1998.

16 On that basis, the Commission on 26 May and 17 June 1999 issued requests for information to Daicel, Nippon Synthetic and Ueno under Article 11 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and Article [82 EC] (OJ, English Special Edition 1959-62, p. 87) (recital 6 to the Decision).

17 On 15 July 1999, 24 October 2001 and 21 February 2002 respectively, Nippon Synthetic, Ueno and Daicel expressed their willingness to cooperate under the 1996 Leniency Notice. They responded to the Commission’s requests for information (recitals 7, 10 and 11 to the Decision).

18 The Commission subsequently sent further requests for information under Article 11 of Regulation No 17, the last such request being sent on 13 December 2002 (recital 21 to the Decision).

19 Between 1998 and 2001 proceedings were initiated in the United States and in Canada concerning price-fixing in the sorbates sector. Fines were imposed on Daicel, Hoechst, Nippon Synthetic and Ueno (in the proceedings in the United States) and Daicel, Hoechst and Ueno (in the proceedings in Canada) (recitals 30 to 32 to the Decision).

20 On 20 December 2002 the Commission initiated a proceeding under Article 81 EC and Article 53 of the EEA Agreement and issued a statement of objections to the undertakings to which the Decision is addressed (recital 22 to the Decision).

21 On 24 April 2003 the undertakings to which the Decision is addressed took part in the hearing before the Commission (recital 29 to the Decision).

22 On 1 October 2003 the administrative procedure was closed when the Commission adopted the Decision.

23 According to Article 1 of the operative part of the Decision, the following undertakings had infringed Article 81(1) EC and, from 1 January 1994, Article 53(1) of the EEA Agreement, by participating, for the periods indicated below, in a complex, single and continuous agreement and concerted practice in the sorbates sector, by which they had agreed to fix target prices and to allocate volume quotas, to define a reporting and monitoring system and not to supply technology to potential entrants:

a) Chisso, from 31 December 1978 to 31 October 1996;

b) Daicel, from 31 December 1978 to 31 October 1996;

c) Hoechst, from 31 December 1978 to 31 October 1996;

d) Nippon Synthetic, from 31 December 1978 to 30 November 1995;

e) Ueno, from 31 December 1978 to 31 October 1996.

24 In Article 2 of the operative part of the Decision, the Commission ordered the undertakings listed in Article 1 to bring to an end immediately the infringements referred to in that article, in so far as they have not already done so, and to refrain from repeating any act or conduct described in Article 1 and from adopting any measure having equivalent object or effect.

25 On the basis of the findings of fact and the legal assessments made in the Decision, the Commission imposed on the undertakings concerned fines calculated in application of the method set out in the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3, ‘the Guidelines’) and in the 1996 Leniency Notice.

26 In Article 3 of the operative part of the Decision, the Commission imposed the following fines:

a) Daicel: EUR 16 600 000;

b) Hoechst: EUR 99 000 000;

c) Nippon Synthetic: EUR 10 500 000;

d) Ueno: EUR 12 300 000.

27 The amount of the fine imposed on Hoechst takes into account, in particular, the role as leader of the cartel which it played jointly with Daicel, and also of the fact that its conduct constituted a repeated infringement (recitals 363 to 373 to the Decision). However, Hoechst received a reduction of 50% of the amount of the fine for its cooperation during the administrative procedure (recitals 455 to 466 to the Decision).

28 Chisso was considered by the Commission to have been the first to provide decisive evidence in the context of the investigation. On that basis, it was given complete immunity and was not fined (recitals 439 to 447 to the Decision).

29 The Decision was served on Hoechst on 9 October 2003, by letter dated 8 October 2003.

Procedure and forms of order sought by the parties

30 By application registered at the Registry of the Court of First Instance on 18 December 2003, Hoechst brought the present action.

31 On 16 December 2004 the Court rejected an application to intervene by Chisso (order of 16 December 2004 in Case T‑410/03 Hoechst v Commission [2004] ECR II‑4451).

32 On 2 March 2006 the Commission was requested to answer a question put by the Court and to supply, first, a number of documents in the investigation file, in the form made accessible to Hoechst, and, second, a usable non-confidential version or non-confidential summary of Chisso’s letter of 17 December 2002, with the annexes thereto. The Commission responded to that request within the prescribed period. As regards Chisso’s letter of 17 December 2002, together with the annexes, the Commission stated that Chisso agreed that the original versions of those documents should be used for the sole purposes of the proceedings before the Court.

33 On 5 April 2006 the Commission’s response and the documents supplied by it were notified to Hoechst.

34 On 18 May 2006 Hoechst was invited to submit its observations on the Commission’s response. In particular, it was invited to state how the non‑disclosure of Chisso’s letter of 17 December 2002, with the annexes thereto, in the form submitted to the Court by the Commission, had prevented it from having knowledge of documents that might be useful to its defence and had thus breached its rights of defence. By letter of 16 June 2006 Hoechst responded to that question within the prescribed period.

35 On 12 July 2006 the Commission was invited to submit its observations on certain points in Hoechst’s response. By letter of 5 September 2006 the Commission submitted its observations within the prescribed period.

36 Upon hearing the report of the Judge-Rapporteur, the Court (Fifth Chamber) decided to open the oral procedure.

37 The parties submitted oral argument and their answers to the questions put by the Court at the hearing held on 8 February 2007.

38 At the hearing the Court ordered the Commission, on the basis of Article 65(b) and the second subparagraph of Article 67(3) of the Rules of Procedure of the Court, to produce, within three weeks from the date of the hearing, the internal notes relating to the telephone conversations which had taken place between its services and Chisso between September 1998 and April 1999.

39 The order of the Court, which was recorded in the minutes of the hearing, was served on the parties on 13 February 2007.

40 The Commission complied with the Court’s request within the prescribed period.

41 In accordance with the second subparagraph of Article 67(3) of the Rules of Procedure, the documents submitted by the Commission were not communicated to the applicant while the Court ascertained their confidential nature and their relevance to the result of the case.

42 On 30 April 2007 the oral procedure was closed.

43 On 11 May 2007 the parties were informed that the Court had decided to remove the internal notes referred to in paragraph 38 above from the file and to return them to the Commission.

44 Hoechst claims that the Court should:

– annul the Decision in so far as it concerns the applicant;

– in the alternative, reduce the amount of the fine imposed on it to an appropriate amount;

– order the Commission to pay the costs.

45 The Commission contends that the Court should:

– dismiss the action as unfounded;

– order Hoechst to pay the costs.

Law

46 Hoechst’s action is supported by 13 pleas in law.

47 Contrary to the Commission’s contention, it is possible upon reading the arguments put forward to determine the scope of the pleas on which Hoechst relies in support of the form of order which it seeks.

48 Thus, the first and fourth pleas seek annulment of the Decision, in its entirety, in so far as it concerns Hoechst.

49 The 13th plea seeks annulment in part of the operative part of the Decision, namely Article 2, in so far as it concerns Hoechst.

50 The remaining pleas seek a reduction in the fine.

I – The pleas seeking annulment of the Decision in its entirety in so far as it concerns Hoechst

51 By its first plea, Hoechst challenges the Commission’s refusal to grant it access to a number of exculpatory documents. In the context of its fourth plea, Hoechst emphasises the fact that the hearing officer’s file is incomplete.

A – The first plea, alleging refusal to grant access to certain exculpatory documents

1. Summary of the administrative procedure and of the Decision.

52 At a meeting held on 13 November 1998 between Chisso and the Commission, one of the Commission’s officials responsible for the case assured Chisso that ‘fair warning would be given if another company would look like overtaking Chisso under the requirements of [the Leniency Notice]’.

53 On 9 December 1998 the Commission’s services received the oral testimony of Chisso’s representative in the cartel.

54 On 5 March 1999, during a telephone interview with the Commission’s services, Nutrinova requested that a meeting be arranged. That request went unanswered.

55 On 20 December 2002 the Commission initiated a proceeding under Article 81 EC and Article 53 of the EEA Agreement and sent a statement of objections to the undertakings to which the Decision is addressed. On the same date those undertakings were granted access to the file, in the form of two CD-ROMs containing a full copy of the documents, apart from business secrets and other confidential information (recitals 22 and 23 to the Decision).

56 The Commission’s note on the meeting of 13 November 1998 was in the file.

57 By letter to the hearing officer dated 22 January 2003, Hoechst requested that it and Nutrinova should, through their counsel, have access to the internal documents relating to the telephone conversations between Commission officials and Chisso between September 1998 and the end of April 1999. They also requested access to a letter from Chisso dated 17 December 2002 which appeared in the file in a non-confidential version.

58 As regards the internal documents relating to the telephone conversations between the Commission and Chisso, counsel for Hoechst and Nutrinova referred to the terms of the minute of the meeting of 13 November 1998 and stated:

‘It is a crucial point for our clients to know whether and to what extent submissions have been prompted by Commission officials while our clients were cooperating with the Commission.’

59 As regards Chisso’s letter of 17 December 2002, counsel for Hoechst and Nutrinova observed in particular that an annex to that letter, namely a letter of 26 March 1999, was entitled ‘[T]o the Commission concerning Chisso’s cooperation with the Directorate-General for Competition’. They added:

‘Any arguments made with regard to Chisso’s cooperation or – more importantly – any hints that would refer to contacts Chisso has had at the time with Commission officials could on the other hand be very relevant for our clients’ defences.’

60 By letter of 24 February 2003 the hearing officer refused the requests set out in the letter of 22 January 2003.

61 The hearing officer stated, in that regard, that the notes relating to the telephone conversations between Chisso and the Commission were internal documents and therefore non-accessible. In the absence of any strong evidence to the contrary, it had to be presumed that the Commission had made an objective assessment of the information that would be useful to Hoechst. Furthermore, as regards Chisso’s letter of 17 December 2002 (and the letter of 26 March 1999 annexed to that letter), the hearing officer informed Hoechst that Chisso had requested confidential treatment for those documents.

62 On 7 March 2003 Hoechst, together with Nutrinova, reiterated, through their counsel, the requests set out in the letter of 22 January 2003, in the context of their response to the statement of objections. More particularly, Hoechst insisted, with Nutrinova, on obtaining access to the file, and submitted arguments relating to the unequal treatment which had been in evidence during the proceedings.

63 On 23 September 2003 the hearing officer submitted her final report in the case (OJ 2005 C 173, p. 5). In that report, she observed, in particular:

‘… I informed the parties by letter of 24 February 2003 that further access to the file would not be granted at that stage of the procedure. I explained that notes of telephone conversations between parties and Commission officials are internal documents of the Commission and thus, in principle, non-accessible. In this particular case, the Commission had, exceptionally, made accessible some of the internal file notes and had referred to them in the [s]tatement of [o]bjections, in order to explain the facts and dates of the meetings that the Commission held with the different addressees. With regard to the letters from Chisso, the latter had requested confidential treatment for these letters and the parties had been given access to non-confidential summaries of those letters.’

64 A footnote accompanying that paragraph stated:

‘Chisso’s legal representative subsequently after the [o]ral [h]earing and in response to a request from me to reconsider the confidentiality nature of the letter sent to the Commission on 26 March 1999, confirmed its view that this document contained business secrets and thus as such was confidential.’

65 The hearing officer then observed in her final report:

‘As a result of these claims made by Hoechst and Nutrinova, I have paid special attention to the conclusions of the Commission on the issue of leniency in the present draft decision. I have also examined internal notes of the Commission services in so far as these exist. In the event, the concerns expressed by Hoechst and Nutrinova are largely rendered moot by the conclusions set out in the draft decision on the issue of leniency. In addition, I am satisfied that the actions of the Commission services vis-à-vis the parties have had no impact on the outcome of the case on this issue. I also confirm that no additional access to file is required in order to satisfy Hoechst’s rights of defence. Neither the Commission’s internal documents nor the documents provided by Chisso provide … additional inculpatory or exculpatory evidence which would be required to be made available to Hoechst.’

66 On 1 October 2003 the Commission adopted the Decision and, at recitals 26 and 27, answered Hoechst’s claims as follows:

‘(26) As regards the documents or parts of documents provided by Chisso for which it claimed protection as “business secrets”, their non-transmission to the other parties protects the legitimate commercial interests of this company. It prevents the other parties from obtaining strategic information on Chisso’s commercial interests and on the operation and development of its business, pursuant to Article 20 of Regulation No 17 and the Commission Notice on the internal rules of procedure for processing requests for access to the file in cases pursuant to Articles 85 [EC] and 86 [EC], Articles 65 and 66 of the ECSC Treaty and Council Regulation (EEC) No 4064/89.

(27) Secondly, as to the access to the Commission’s internal documents, according to well established case-law, the Commission is under no obligation with regard to the rights of the defence to grant access to its internal documents during the procedure. Moreover, as far as contacts with undertakings in the context of their cooperation are concerned, the Commission considers that Hoechst’s reasoning is based on a fundamentally wrong premis. Additional access to the Commission’s internal documents in no way would facilitate the companies’ rights of defence and contribute to determine who was the first undertaking to provide the Commission with decisive evidence. In fact, this appraisal will be made exclusively on the basis of the documents provided by the undertakings, to which the parties had access.’

2. Arguments of the parties

a) Arguments of Hoechst

67 Hoechst states that it was only on reading the statement of objections that it observed that at the beginning of the proceedings, more or less in parallel with Hoechst, Chisso had cooperated with the Commission in reliance on the 1996 Leniency Notice. At the same time, the document to which Hoechst had access enabled it to discover irregularities in the administrative procedure. Hoechst makes clear in that regard that it is challenging, in the eighth plea, the fact that the first decisive evidence of the existence of the cartel was supplied by Chisso on 13 November 1998.

68 In its first plea, first, Hoechst disputes the refusal of access to internal documents relating to the conversations between the Commission and Chisso. Second, Hoechst disputes the refusal of access to a letter from Chisso dated 17 December 2002, together with the annexes to that letter. Third, Hoechst draws attention to the fact that the Commission did not agree to its request to carry out fresh investigations. In addition, Hoechst requests that measures of organisation of procedure be taken.

The refusal of access to documents relating to the conversations between the Commission and Chisso

69 The applicant submits that the Commission refused to grant it access to certain documents submitted by Chisso and also to notes drawn up by the Commission concerning the meetings and telephone conversations with Chisso. If the applicant had been able to consult them, it would have been able to obtain a complete picture of the contacts between the Commission and Chisso and it would therefore have been easier for the applicant to prove that it was it, and not Chisso, that had been the first, in time and with respect to content, to adduce decisive evidence of the existence of the cartel and that therefore ought to have obtained a reduction in its fine. It would therefore also have been easier for Hoechst to demonstrate that Chisso’s acts of cooperation had been influenced by information from the Commission.

70 The applicant refers to Case T‑36/91 ICI v Commission [1995] ECR II‑1847, paragraph 69; Case T‑221/95 Endemol v Commission [1999] ECR II‑1299, paragraph 65; and Joined Cases T‑191/98 and T‑212/98 to T‑214/98 Atlantic Container Line and Others v Commission [2003] ECR II‑3275, paragraph 334, and emphasises that the right to consult the file is one of the fundamental guarantees of Community law in procedural matters, intended to protect the rights of defence of the addressees of a statement of objections. The right of access to the file must, in particular, ensure the effective exercise of the right to be heard, since it provides the opportunity to be aware of and to assess the evidence used by the Commission in the statement of objections and, where possible, to refute that evidence in the response. The Commission’s duty is to give access, in principle, to the whole file. The situation is otherwise only with respect to the Commission’s internal documents and evidence containing business secrets of third parties.

71 Hoechst also submits that the principle of equality of arms means that the Commission cannot decide alone whether, and to what extent, it will grant access to the documents which a party might use as exculpatory evidence. There would be a breach of the rights of the defence if it were possible to demonstrate that the administrative procedure might have had a different outcome if Hoechst had obtained access to the exculpatory documents concerned. For the documents not in the file, Hoechst ought to have expressly requested to consult the documents in question.

72 In this case, Hoechst made quite clear that all the notes relating to the telephone conversations which took place between September 1998 and April 1999 between the Commission’s representatives and Chisso were important for its defence, as they might have been exculpatory documents, showing the lack of impartiality in the conduct of the proceedings at that time.

73 The parts of the file that Hoechst was able to consult show that the applicant was treated unequally by comparison with Chisso.

74 First, the Commission granted Chisso, in autumn 1998, something that it refused to grant at the same time to Hoechst, namely recognition of oral depositions as acts of cooperation. At the same time, the Commission actively invited Chisso to meetings with it, whereas it refused the same meetings to Hoechst. In particular, an internal Commission note dated 9 November 1998 states that ‘[Chisso’s] lawyers [had] at last agreed to hold the promised meetings, following calls initiated from [the Directorate-General for Competition]’. Those repeated telephone calls from the Commission show the partisan way in which it conducted the proceedings.

75 Second, it is also established that during that decisive period of the proceedings, that is to say, at the end of 1998, Chisso unlawfully obtained a promise from the Commission that it would receive a ‘warning’ if it appeared that other undertakings would overtake it in relation to cooperation. Such partial warnings are not only unlawful in themselves but also relevant for Hoechst’s defence. In effect, that defence depends essentially on whether, and to what extent, the Commission gave Chisso such ‘warnings’ or indications concerning the state of the cooperation supplied by Hoechst. Furthermore, according to settled case-law the principle of sound administration includes the obligation for the competent institution to examine carefully and impartiality all the relevant aspects of the individual case (Case T‑31/99 ABB Asea Brown Boveri v Commission [2002] ECR II‑1881, paragraph 99). Even on the assumption that Chisso received no warning from the Commission, that has no impact on the complaint that the Commission in any event declared that it was prepared to give such a warning. That breach of the principle of sound administration is in itself sufficient to justify granting Hoechst greater access to the file in order to preserve its rights of defence.

76 In those circumstances, all the documents dealing with the contacts between Chisso’s lawyers and the Commission officials responsible for the case are important for Hoechst’s defence, as exculpatory documents. Hoechst explained that point of view on several occasions, both in writing (for the attention of the hearing officer and the head of division of the Commission responsible for the case) and at the hearing on 24 April 2003.

77 However, the hearing officer rejected those requests by letter of 24 February 2003 to counsel for Hoechst and Nutrinova, stating, in particular, the following:

‘In the absence of strong evidence to the contrary, it has to be presumed that the Commission made an objective assessment of the information which is useful to [your clients] in this regard. No strong evidence to the contrary is conveyed in your letter. Moreover, the reason given (quoted above), for requesting additional access is not an appropriate basis upon which to consider granting access and, more specifically, it is not relevant to the issue of the application of the Leniency Notice in this case.’

78 Those arguments show that the hearing officer, whose actions are attributable to the Commission, misunderstood her powers and her duties to ensure respect for the rights of the defence. In accordance with the case-law, all that can be expected of a party which seeks wider access to the file is that it should establish by relevant arguments what documents may be of interest for its defence, and for what reason (Atlantic Container Line and Others v Commission, paragraph 70 above, paragraph 335). Whether a particular document is of interest for the defence must be assessed from the viewpoint of the party defending itself and neither the Commission’s agent responsible for the case nor the hearing officer is competent to decide what documents may serve for the defence as exculpatory documents.

79 The applicant also refers to Case T‑30/91 Solvay v Commission [1995] ECR II‑1775, paragraphs 81 and 83, and submits that where a case calls for difficult and complex economic assessments, the Commission must ensure that the addressees of a decision have the same knowledge of the facts as the Commission itself and the other parties concerned do. That principle also applies for the Commission’s internal documents relating to the contacts with Chisso, to which Hoechst requested access in order to protect its rights. Referring to Case T‑9/99 HFB and Others v Commission [2002] ECR II‑1487, paragraph 40, the applicant states that the Commission’s internal documents must be communicated where circumstances of the case are exceptional and the applicant makes out a plausible case for the need to communicate them. Access to the Commission’s internal documents must be authorised where they serve to prove a breach of the principle of lawfulness by the Commission (order of 18 June 1986 in Case 156/84 BAT and Reynolds v Commission [1986] ECR 1899, paragraph 11).

80 As regards the hearing officer’s reference to the application of the 1996 Leniency Notice in the present case, Hoechst observes that it cannot be for the hearing officer to predict the future reasoning in the Commission’s decision and to base her procedural decisions on that reasoning. The hearing officer can neither know nor decide what grounds will be adopted by the College of Members of the Commission and has neither the power nor the right to decide alone on the interest which potentially exculpatory documents might have for the defence (Atlantic Container Line and Others v Commission, paragraph 70 above, paragraph 339).

81 In that context, Hoechst requests the Court to adopt measures of organisation of procedure consisting in ordering the Commission to put it and the Court in a position to consult, in their integral version, all the documents in the file, or otherwise in the Commission’s possession, showing the content of the contacts between Chisso’s lawyers and the Commission’s representatives between September 1998 and April 1999. Furthermore, by way of measure of inquiry, Hoechst requests that the two Commission officials then responsible for the case be called as witnesses.

The refusal of access to a letter of 17 December 2002 from Chisso, together with the annexes thereto

82 Hoechst states that it has already claimed, before the adoption of the Decision, that a letter of 17 December 2002 from Chisso’s lawyers which was in the file but the content of which was almost entirely concealed ought to have been in an unconcealed form in the file. Hoechst emphasised that the annexes to that letter, including a letter of 26 March 1999, which, according to the summary of its content, dealt with Chisso’s cooperation with the Commission, was of great interest for its defence.

83 In so far as that document, as may be inferred from the file to which access was granted, related only to contents or to legal points relating to Chisso’s cooperation and to its assessment, Hoechst contends that there is no valid reason for precluding consultation of it.

84 Hoechst adds that Chisso’s letter might contain inculpatory evidence (for example, if Chisso accused the applicant of having been a leader of the cartel) and the Commission ought therefore to have given the applicant immediate access without any prompting. Conversely, should there be any sign of discrimination such as the procedural irregularities on the part of the Commission noted above, Chisso’s letter might have an exculpatory effect. In that case, the letter ought to have been transmitted when Hoechst requested it, at the latest.

85 In that context, it is immaterial whether or not one of the parties to the procedure requested confidential treatment for the documents in question. The Commission ought to examine of its own motion, and objectively, the confidential nature of the documents in its file. Hoechst submits in that regard that Article 21(2) of Regulation No 17 provides that the Commission can grant only valid requests for confidential treatment for business secrets.

86 Hoechst contends that only business data such as turnover or market shares in non-historical periods could have constituted a ground for concealing – and only in part – Chisso’s letter.

87 Referring to Endemol v Commission, paragraph 70 above (paragraph 65), Hoechst submits that the protection of confidential information must be weighed up against the rights of defence of the addressees of the statement of objections. The addressees of the statement of objections should be in a position to determine, in full knowledge of the facts, whether the documents described are relevant for their defence (ICI v Commission, paragraph 70 above, paragraph 104). In the present case, Hoechst maintains that its opportunity to defend itself was restricted in so far as it was unable to clarify certain decisive procedural and factual points.

88 In particular, in so far as Hoechst disputes the fact that Chisso was the first to supply decisive evidence, Chisso’s letter of 26 March 1999, which, as the summary shows, concerned the latter’s cooperation with the Commission, might have enabled conclusions to be drawn as to the content and date of the acts of such cooperation, in particular before 29 October 1998.

89 In that context, Hoechst requests the Court to adopt measures of organisation of procedure consisting in ordering the Commission to make available to the Court and to Hoechst Chisso’s lawyers’ letter of 17 December 2002 to the Commission, in the full version, together with the annexes. Furthermore, by way of measure of inquiry, Hoechst requests that the two Commission officials then responsible for the case be called as witnesses.

90 In its letter of 16 June 2006, in answer to a written question from the Court inviting it to submit further observations on the documents previously transmitted by the Commission, including, in particular, Chisso’s letter of 17 December 2002, together with the annexes thereto (see paragraph 34 above), Hoechst claims that certain evidence has been rejected and that a number of irregularities vitiated the administrative procedure.

91 As regards the evidence which it claims to have been rejected, first, Hoechst contends that the letter of 11 January 1999 from Chisso’s counsel to the Commission, which is now available for consultation for the first time, constitutes an exculpatory document.

92 That letter shows that on 3 November 1998, or several days after Hoechst requested immunity, Chisso sought confirmation that no other undertaking had offered to cooperate with the Commission.

93 That proves that on that date Chisso had not requested immunity from the Commission. Chisso requested immunity only after 11 January 1999, as shown in the very terms of the letter. It is not possible to make good a failure to request immunity. That element was not mentioned in the Decision and is of such a kind as to confirm that Hoechst had been the first undertaking to cooperate with the Commission.

94 Second, Hoechst maintains that Chisso’s letter to the Commission of 26 March 1999 is also an exculpatory document.

95 According to Hoechst, that letter shows that, at the time when it was sent, the written statements which the Commission had requested from Chisso had still not been submitted.

96 First of all, Hoechst observes, in that regard, that Chisso was informally granted extra time, for which there is no provision in the 1996 Leniency Notice.

97 Next, if certain documents were still missing on 26 March 1999, it is impossible to consider, contrary to what is stated at recital 458 to the Decision, that the Commission had proof of the existence of the cartel on the basis of the cooperation provided by Chisso. The Commission therefore gave unlawful commitments to Chisso and also adhered to them by subsequently granting Chisso immunity from a fine.

98 Hoechst also observes that it provided the Commission with documentary evidence on 19 March 1999, even though its personnel still faced the risk of criminal proceedings in the United States and though the 1996 Leniency Notice required only evidence of the existence of the cartel, which Hoechst provided as early as 29 October 1998.

99 As regards the irregularities which are alleged to vitiate the administrative procedure, Hoechst emphasises that the Commission, at recital 461 to the Decision, refused to accept that the applicant had been the first to cooperate, on the ground that it had documents without producing them, when it was agreed that, in view of the proceedings pending in the United States, Hoechst could provide those documents at a later stage.

100 At the same time, as shown by the letter of 26 March 1999, the Commission clearly allowed Chisso ‘extra time’ to submit documents. Furthermore, the documents produced by Chisso in April 1999 could have been provided earlier. Accordingly, Chisso’s cooperation should have been rejected on the same grounds as those used against Hoechst.

101 In fact, no lack of cooperation was alleged on Chisso’s part in spite of a strictly comparable situation. That constitutes unequal treatment to the detriment of Hoechst.

The request to carry out further investigations

102 Hoechst states that, in its letter of 22 January 2003 to the hearing officer, it had requested that further investigations be carried out at the Commission’s premises in the form of questioning of witnesses. Although that request was not refused by either the hearing officer or the Commission, no action was taken, since the requested investigation was clearly not carried out. In so far as that investigation was decisive for the content of the Decision, for the reasons set out in the present plea, the Commission has breached the principle of sound administration.

b) Arguments of the Commission

The refusal to grant access to certain documents

103 The Commission emphasises that Hoechst does not deny that access to certain documents may in principle be refused when they are internal documents or contain business secrets.

104 In that context, first, the Commission states that the hearing officer paid ‘particular attention’ to her findings in the draft decision, concerning the question of the benefit of favourable treatment with respect to the fine. The hearing officer ‘moreover’ examined the Commission’s internal notes before stating that she was convinced that ‘the acts of the Commission’s services vis-à-vis the parties [had] not had any influence on the outcome of the procedure from that point of view’.

105 Second, the Commission asserts that the first decisive evidence of the existence of the cartel was provided by Chisso at the meeting of 13 November 1998. The decision as to which undertaking was the first to supply decisive evidence to the Commission was taken solely on the basis of the documents produced by the undertakings, to which the parties had access. Accordingly, the warning promised to Chisso at the meeting of 13 November 1998 cannot logically have influenced the decision as to which undertaking was the first to cooperate. It follows at the same time that the criticisms concerning the conduct of the procedure after that date could not be of the slightest importance in that regard. That also applies to the complaints relating to the refusal to grant access to Chisso’s letter of 17 December 2002 and the annexes thereto.

106 Nor, third, has Hoechst succeeded in casting serious doubts on the objectivity of the Commission’s conduct of the procedure that might justify wider access to its internal documents.

107 The Commission submits, in that regard, that the opportunity given to Chisso on 9 December 1998 to submit oral observations served only to explain the written evidence submitted on 13 November 1998. On the other hand, the meeting proposed by Hoechst by telephone on 5 March 1999 was intended to substitute oral testimony for existing written evidence.

108 As regards the ‘refusal’ to agree to the meeting proposed by Hoechst, the Commission suggests that what it did was more in the nature of a general reference to the conditions of the application of the 1996 Leniency Notice than a definitive refusal of any new contact with Hoechst. The Commission also states that its position was based on a provisional assessment, first, of Hoechst’s willingness to cooperate, in view of the fact that of Hoechst was not prepared to cooperate fully before the outcome of the criminal and civil proceedings in the United States, and, second, of the probative value of the information thus far sent to the Commission by Hoechst. As Hoechst did not state that it was prepared, at the time of the requested meeting, to cooperate fully with the Commission and to give information of a different nature from that which it had already supplied, it would have made no sense, either for the Commission or for Hoechst, to arrange a new meeting.

109 As regards the fact that the Commission actively invited Chisso to meetings and arranged such meetings, the Commission states that by its telephone call it was merely reacting to an initiative by Chisso. It was agreed at the meeting of 29 September 1998 that the lawyers would take the initiative for a new meeting with the Commission within two weeks. As they did not do so within the agreed period, the Commission resumed contact in order to ascertain whether the lawyers still desired a meeting.

110 Furthermore, the proper functioning of the Commission in the field of competition depends, in particular, on the effectiveness of the Leniency Notice and therefore on the confidence which cooperating undertakings are able to have in the confidentiality of the contacts which they make in that regard. It is therefore necessary to reject Hoechst’s assertion that its interest in establishing the existence of any procedural defects prevails over the proper functioning of the institution. In that context, Solvay v Commission, paragraph 79 above, does not assist Hoechst to overcome the absence of exceptional circumstances in the present case. That case did not concern internal notes of the Commission but only the confidential documents of one of the parties. Furthermore, the facts of that case were very different from those of the present case, which do not involve difficult and complex economic assessments.

111 Last, the Commission, referring to Atlantic Container Line and Others v Commission, paragraph 70 above (paragraph 340), submits that where the documents that might have contained exculpatory evidence were not communicated to a party, a breach of the rights of the defence can be found only if it is established that the administrative procedure might have led to a different outcome if that party had had access to the documents in question during that procedure. That is precluded in this case, however, as regards the fact that Chisso was the first undertaking to cooperate by its contribution of 13 November 1998.

112 In its response of 5 September 2006 to a written question put by the Court, the Commission made the following comments on the supplementary observations communicated by Hoechst on 16 June 2006 (see paragraphs 34 and 90 to 101 above).

113 As regards, first, Chisso’s letter of 11 January 1999, the Commission states that that document was already accessible during the administrative procedure and therefore cannot in any event be characterised as evidence to which the Commission did not provide access.

114 In any event, the Commission states that Section E, paragraph 1, of the 1996 Leniency Notice requires that undertakings ‘contact’ the Commission’s Directorate-General for Competition. Although in the German version of that provision the word ‘applicant’ (Antragsteller) is used in that context, there is no need to submit a formal application. Nor, moreover, did Hoechst formulate an ‘application’ in its letter of 27 October 1998.

115 As to which undertaking was the first to cooperate within the meaning of Section B of the 1996 Leniency Notice, the Commission contends that it is not the date of the ‘application’ that is decisive; what matters is which undertaking ‘is the first to adduce decisive evidence of the cartel’s existence’. Furthermore, the wording used in the letter of 11 January 1999 shows that Chisso clearly presumed that in had already begun to cooperate.

116 As regards, second, Chisso’s letter of 26 March 1999, the Commission emphasises that that document concerns only questions relating to the time-limits which had been imposed on Chisso, and not on Hoechst, to produce further documents, at a time when Chisso had already satisfied the conditions for the application of Section B(b) of the 1996 Leniency Notice by virtue of its contribution of 13 November 1998. Hoechst is therefore wrong to claim that that letter is an exculpatory document. It cannot be an exculpatory document, since it does not relate to any of the reasons why Hoechst is unable to benefit from Section B of the 1996 Leniency Notice, which are set out at recitals 455 to 464 to the Decision, and to which the Commission refers.

117 The fact that Chisso is considered to be the first undertaking to have cooperated is based not on the observations which it submitted on 20 April 1999 but on the documents produced on 13 November 1998. The extensions of the time-limits therefore did not have the effect of retroactively recognising that Chisso was the first to cooperate.

118 If it is Hoechst’s intention to assert that it follows from that document that Chisso no longer satisfied the conditions for the application of Section B(d) of the 1996 Leniency Notice, the Commission contends that its argument cannot be upheld, since a person cannot rely on an unlawful act committed in favour of a third party (judgment of 15 June 2005 in Joined Cases T-71/03, T-74/03, T‑87/03 and T‑91/03 Tokai Carbon and Others v Commission, not published in ECR, paragraph 373). What is more, even if Chisso should actually lose the benefit of Section B of the 1996 Leniency Notice, that would have no impact on Hoechst.

119 The Commission adds that the evidence necessary for the purposes of the application of Section B(b) of the 1996 Leniency Notice is decisive evidence of the existence of the cartel. Contrary to Hoechst’s opinion, evidence which merely put the Commission in a position to carry out an investigation is not sufficient.

120 It is true that information provided orally is not excluded a priori. However, such evidence is not relevant in itself in the context of the application of Section B(b) of the 1996 Leniency Notice and becomes relevant only from the time when it is recorded on the appropriate medium (Case T‑15/02 BASF v Commission [2006] ECR II‑497, paragraph 505).

121 The applicant ought to have expressly requested that the Commission draw up a minute to that effect (BASF v Commission, paragraph 120 above, paragraph 502), in any event so long as the Commission did not propose to do so in the context of its administrative practice. Furthermore, the minute could help to prove the existence of the cartel only if the Commission were able to establish the authenticity of the statement.

122 As regards, third, the irregularities which are alleged to have vitiated the administrative procedure, Hoechst infers from the letter of 26 March 1999 that Chisso no longer satisfied the conditions for the application of Section B(d) of the 1996 Leniency Notice. That argument must be rejected, on the ground that no one can rely to his advantage on an unlawful act committed in favour of a third party.

123 Furthermore, the question as to whether the conditions for the application of Section B(d) of the 1996 Leniency Notice are satisfied must, in the Commission’s submission, be determined on a case-by-case basis. One of the significant elements in that context is whether the conduct of the undertakings concerned gave rise to an appreciable delay in the procedure. If the procedure is considered as a whole, it is clear that that was not so in the present case. The Commission also emphasises that Hoechst did not transmit the second part of its observations until April 1999, some days after Chisso had lodged its own declarations (which Hoechst describes as being late).

124 Last, the Commission disputes certain factual assertions in Hoechst’s observations.

The request for the new investigations

125 The Commission asserts that an investigation was indeed carried out, but that it produced no results favourable to Hoechst. The official responsible for the case at the time was questioned and confirmed that Chisso had received no warning concerning the possibility that it might be overtaken in relation to cooperation. Chisso was not put on notice in that regard. The Commission refers on that point to recital 458, in fine, to the Decision.

3. Findings of the Court

126 The Court notes, by way of preliminary observation, that Hoechst claims on a number of occasions in the context of the first plea that there has been a breach of the principles of sound administration and equal treatment, in support of its assertion that there has been a breach of the right of access to the file. Those arguments, moreover, are again developed in the context of the eighth and ninth pleas, whereby the applicant seeks a reduction in the fine.

127 In those circumstances, the Court considers it appropriate to examine those arguments first, before analysing, more specifically, the breach of the right of access to the file alleged by Hoechst.

a) Breach of the principles of sound administration and equal treatment

128 It must be borne in mind that during an administrative procedure before the Commission, the Commission is required to observe the procedural guarantees provided for by Community law (Case T‑348/94 Enso Española v Commission [1998] ECR II‑1875, paragraph 56).

129 Among the guarantees conferred by the Community judicial order in administrative procedures is, in particular, the principle of sound administration, which entails the obligation for the competent institution to examine carefully and impartially all the relevant elements of the case (Case T‑44/90 La Cinq v Commission [1992] ECR II‑1, paragraph 86, and ABB Asea Brown Boveri v Commission, paragraph 75 above, paragraph 99).

130 As regards the principle of equal treatment, the Commission cannot, when assessing the cooperation provided by undertakings, ignore that general principle of Community law, which, according to consistent case-law, is breached when comparable situations are treated differently or when different situations are treated in the same way, unless such treatment is objectively justified (Joined Cases T‑45/98 and T‑47/98 Krupp Thyssen Stainless and Acciai speciali Terni v Commission [2001] ECR II‑3757, paragraph 237, and Case T‑38/02 Groupe Danone v Commission [2005] ECR II‑4407, paragraph 453).

131 In the present case, first, so far as it concerns Hoechst’s assertion that the Commission granted Chisso, in autumn 1998, what it at the same time refused the applicant, namely recognition of its oral contributions as acts of cooperation, and for the reasons set out at paragraphs 572 to 578 below, the Court considers, on the one hand, that in the Decision the Commission finally accepts Hoechst’s oral contributions as acts of cooperation and, on the other, in any event, that the fact that it was the Commission’s intention not to take certain oral contributions into consideration was the consequence of uncertainty as to the actual cooperation provided by Hoechst at the beginning of the procedure. Hoechst’s arguments in that regard must therefore be rejected.

132 Second, as regards the Commission’s internal note of 9 November 1998, relating in particular to the meeting of 29 October 1998, which states that ‘[t]he lawyers … have at last agreed to hold the promised meetings, following calls initiated from [the Directorate-General for Competition]’, the Court considers that the telephone conversations initiated by the Commission’s services were a consequence of the fact that those services had already met Chisso’s lawyers on 29 September 1998, without there being any need to determine whether or not Chisso’s identity had been officially revealed. As the Commission observes in its internal note of 1 October 1998, it had been agreed that the lawyers would contact the Commission services within two weeks. The fact that, in that context, the Commission services resumed contact is not of such a kind as to cast doubt on the lawfulness of the proceedings in that regard.

133 Third, as regards the fact that Hoechst’s requests for further investigations met with no response, it must be noted that Hoechst’s request, contained in a letter of 22 January 2003 to the hearing officer, formed part of a request for access to the internal documents relating to the telephone contacts between the Commission and Chisso between September 1998 and April 1999. More specifically, Hoechst requested the hearing officer to investigate those telephone contacts. In fact, it follows from the hearing officer’s final report that, ‘[a]s a result of these claims made by Hoechst and Nutrinova’, the hearing officer had ‘examined internal notes of the Commission services in so far as these exist[ed]’. Hoechst’s assertion that its request met with no response is therefore factually incorrect.

134 Fourth, as regards what the applicant claims to have been a biased approach or unequal treatment in the application of the 1996 Leniency Notice, the Court observes that in an internal note of 9 November 1998 referring to the first meetings held with Chisso and Hoechst, the Commission stated:

‘We have obviously not informed them [that is to say, Chisso’s lawyers] that other companies are also providing information, nor have these others been informed that … Chisso [had] applied for leniency.’

135 In fact, it follows from the minute of the meeting of 13 November 1998 between Chisso and the Commission that one of the officials responsible for the present case stated that ‘fair warning would be given if another company would look like overtaking Chisso under the requirements of [the Leniency Notice]’.

136 It follows, first, that on 9 November 1998 the Commission clearly displayed its intention not to disclose to the cooperating undertakings, in particular to Hoechst, the fact that other undertakings had approached its services in order to obtain immunity from a fine when, on 13 November 1998, that is to say, some days later, it assured Chisso that it would be warned if other undertakings attempted to overtake it in relation to cooperation.

137 Those elements lead the Court to conclude that, in this case, the Commission failed to have regard to the principles of sound administration and equal treatment. The Court would emphasise in that regard that even if the assertion of the official concerned at the meeting of 13 November 1998 does not show that the promise made to Chisso was in fact subsequently kept, it none the less constitutes a breach of those two principles.

138 It must be observed, at this stage, that Hoechst does not claim that the Decision should be annulled in so far as the Commission breached the principles of sound administration and equal treatment. However, since it relied on a breach of those principles in support of the breach of the right of access to the file, which will be examined below, and in so far as Hoechst’s arguments are developed again in the context of the eighth and ninth pleas concerning the application of the 1996 Leniency Notice, it is appropriate to ascertain the impact on the content of the Decision of the breach found at paragraph 137 above.

139 In that regard, in the first place, it must be observed that the unlawful act found at paragraph 137 above is not of such a kind as to call in question the infringement found in the Decision, which, moreover, is supported by documentary evidence. Nor has Hoechst put forward any argument to that effect.

140 In the second place, as regard cooperation by undertakings, it follows from recital 440 to the Decision that:

‘At a meeting held on 13 November 12998, Chisso submitted an oral description of the cartel’s activities and provided documentary evidence … The Commission considers that on that occasion Chisso was the first undertaking to adduce decisive evidence [of] the existence of the cartel which is found in this Decision.’

141 It follows that the Commission relied solely on the oral description of the cartel’s activities and on the written evidence submitted at the meeting of 13 November 1998, and not later, as the basis for its conclusion that Chisso had been the first undertaking to adduce evidence of the existence of the cartel.

142 In those circumstances, even on the assumption that Chisso was induced to cooperate further with the Commission after 13 November 1998, the Commission could not have arrived at a different result in the Decision as concerns the application of the 1996 Leniency Notice, subject to examination of the eighth and ninth pleas, whereby Hoechst seeks to demonstrate that, on the substance, the evidence submitted by Chisso on 13 November 1998 was not decisive. The same would apply if Hoechst had been induced further, after 13 November 1998, after becoming aware of Chisso’s cooperation.

143 The Court therefore considers that the unlawful act found at paragraph 137 above is not of such a kind as to affect the validity of the Decision in so far as it concerns the finding of the infringement and the fact that Chisso was the first to cooperate.

144 Independently of the question of the impact of the unlawful act found at paragraph 137 above on the right of access to the file, which will be examined below, and therefore the question of the impact of that illegality on the validity of the Decision as a whole, and in so far as Hoechst’s arguments are developed again in the context of the eighth and ninth plea, whereby it seeks a reduction in the fine, the Court, at this stage, reserves its position as to whether the fine should be varied.

b) Breach of the right of access to the file

145 It must be borne in mind at the outset that the right of access to the file, which is a corollary of the principle of respect for the rights of the defence, means that the Commission provides the undertaking concerned with the opportunity to examine all the documents in the investigation file that might be relevant for its defence. Those documents comprise both inculpatory and exculpatory evidence, with the exception of business secrets of other undertakings, internal documents of the Commission and other confidential information (see Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 68 and the case‑law cited).

146 As regards the inculpatory evidence, the undertaking concerned must demonstrate that the result which the Commission reached in its decision would have been different if a document that was not disclosed on which the Commission relied to make a finding of infringement against that undertaking ought to have been excluded as inculpatory evidence. As regards the exculpatory evidence, the undertaking concerned must establish that its non-disclosure was able to influence, to its detriment, the course of the procedure and the content of the Commission’s decision. It is sufficient for the undertaking to show that it would have been able to use the exculpatory documents for its defence, in the sense that, if it had been able to rely on them during the administrative procedure, it would have been able to invoke evidence which was not consistent with the inferences made at that stage by the Commission and therefore could have had an influence, in any way at all, on the assessments made by the Commission in any decision, at least as regards the gravity and duration of the conduct in which the undertakings was found to have engaged and, accordingly, the level of the fine. The possibility that a document that had not been disclosed might have had an influence on the conduct of the procedure and the content of the Commission’s decision can be established only after a provisional examination of certain evidence showing that the undisclosed documents might have had – from the aspect of that evidence – a significance which ought not to have been overlooked (see Aalborg Portland and Others, paragraph 145 above, paragraphs 73 to 76 and the case-law cited).

147 Furthermore, it should be emphasised that it is not solely for the Commission, which notifies the objections and adopts the decision imposing a penalty, to determine the documents which are of use to the defence of the undertakings concerned. However, the Commission may exclude from the administrative procedure the evidence which has no relation to the allegations of fact and of law in the statement of objections and which therefore has no relevance to the investigation. An applicant cannot properly put forward as a ground of annulment the fact that irrelevant documents were not communicated to it (see Aalborg Portland and Others v Commission, paragraph 145 above, paragraph 126 and the case-law cited).

148 Last, it must be borne in mind that a breach of the right of access to a file can entail annulment of a Commission decision in whole or in part only where the lack of proper access to the investigation file during the administrative procedure had prevented the undertaking or undertakings concerned from perusing documents which were likely to be of use in their defence and had thus infringed their rights of defence. That is the case if disclosure of a document would have had even a slight chance of altering the outcome of the administrative procedure if the undertaking concerned had been able to rely on it during that procedure (see, to that effect, Aalborg Portland and Others v Commission, paragraph 145 above, paragraphs 101 and 131).

149 It is in the light of those considerations that the Court must assess whether Hoechst’s right of access to the file was breached in this case as regards, first, Chisso’s letter of 17 December 2002 together with the annexes thereto and, second, the internal documents relating to the telephone conversations between the Commission and Chisso between September 1998 and April 1999.

Chisso’s letter of 17 December 2002 and the annexes thereto

150 First, it should be observed that the Commission decided to incorporate Chisso’s letter of 17 December 2002, together with the annexes thereto, in a non‑confidential version, in the investigation file that was made available to the undertakings which were parties to the proceedings. The Commission therefore of necessity considered that those documents were of relevance to the investigation.

151 Second, Chisso’s letter of 17 December 2002, together with the annexes thereto, was not used by the Commission in the Decision in order to establish that the undertakings concerned had committed an infringement. Those documents therefore do not constitute inculpatory evidence.

152 Third, it must be noted that Hoechst did in fact have access to the non-confidential version of Chisso’s letter of 17 December 2002, together with the annexes. However, in the form made available to Hoechst during the administrative procedure, those documents consisted of 101 pages, virtually all of which were blank and marked ‘Business secrets’. No more comprehensible non-confidential version, or even a summary of the content of those documents, was provided during the administrative procedure. Only a list setting out the date, sender and addressee of the documents and, where appropriate, the subject-matter, were mentioned in Chisso’s letter of 17 December 2002. In those circumstances, the non-confidential version of Chisso’s letter of 17 December 2002, with the annexes, in the form make available to Hoechst during the administrative procedure, bears a close relationship to failure to disclose the documents in question, which, in so far as they formed part of the file, were of relevance to the investigation.

153 Fourth, it must be emphasised that more appropriate access to Chisso’s letter of 17 December 2002, together with the annexes, was requested by Hoechst on a number of occasions during the administrative procedure. That access was refused, according to the terms of recital 26 to the Decision, on the ground that Chisso had requested confidential treatment for them. The Commission cannot make a general reference to confidentiality to justify a total refusal to disclose documents in its file (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, paragraph 1017). The right of undertakings and associations of undertakings to protect their business secrets must be balanced against the safeguarding of the right to have access to the whole of the file (Joined Cases T‑25/95, T‑26/95, T‑30/95 to T‑32/95, T‑34/95 to T‑39/95, T‑42/95 to T‑46/95, T‑48/95, T‑50/95 to T‑65/95, T‑68/95 to T‑71/95, T‑87/95, T‑88/95, T‑103/95 and T‑104/95 Cimenteries CBR and Others v Commission [2000] ECR II‑491, (Cement), paragraph 147).

154 In the circumstances of the present case, taking account of Hoechst’s express request to that effect, the Commission ought to have drawn up, or to have had drawn up, a non-confidential version of the documents in issue or, where appropriate, if that proved difficult, to have prepared a list of the documents concerned and a sufficiently precise non-confidential summary of their content.

155 For all of those reasons, the Court considers that Hoechst’s access to Chisso’s letter 17 December 2002, together with the annexes thereto, was not properly organised by the Commission.

156 However, it must be borne in mind that a breach of the right of access to a file can lead to annulment in whole or in part of a Commission decision only where the lack of proper access to the investigation file during the administrative procedure prevented the undertaking or undertakings concerned from perusing the documents that were likely to be of use in their defence and thus infringed their rights of defence.

157 It was in those circumstances that the Court adopted the measures of organisation of procedure set out at paragraphs 32 to 35 above and that Hoechst was able to submit further observations on the complete documents which had thus been made available to it.

158 It must be noted in that regard, by way of preliminary observation, that certain documents in the investigation file, in particular a letter from Chisso dated 11 January 1999, were produced at the request of the Court since the Decision referred to them in order to find that Chisso had supplied an oral description of the cartel’s activities and also certain evidence at the meeting of 13 November 1998. It is common ground, moreover, that those documents formed part of the investigation file made available to the parties to the proceedings, which the Commission confirmed in its observations without that point being disputed by Hoechst. In those circumstances, Hoechst cannot validly maintain that there has been a breach of the right of access to the file in that regard.

159 As regards Chisso’s letter of 17 December 2002, together with the annexes, Hoechst’s further observations specifically concern one of those annexes, namely a letter from Chisso dated 26 March 1999.

160 It must be emphasised, in that regard, that the Commission’s final position on which undertaking had been first to adduce decisive evidence was taken, in the present case, at the time when it adopted the Decision. At no point during the procedure did the Commission inform the undertakings whether or not they would be immune from a fine. In those circumstances, the non-disclosure of Chisso’s letter of 26 March 1999 could not affect Hoechst’s rights of defence during the administrative procedure.

161 In any event, it must be made clear that Chisso’s letter of 26 March 1999 cannot alter the Commission’s conclusion that Chisso was the first undertaking to adduce decisive evidence of the cartel’s existence, independently of whether or not that conclusion was well founded. The purpose of Chisso’s letter of 26 March 1999 was to explain why Chisso was late in supplying an ‘account of the facts’. That cannot attenuate the fact that, at the meeting of 13 November 1998, and according to the Commission, Chisso provided an oral description of the cartel’s activities and also certain written evidence. Likewise, the fact that the Commission was able to grant Chisso further time to provide supplementary factual evidence following the meeting of 13 November 1998 cannot have any effect on the fact that Chisso was the first to cooperate, once that conclusion is based solely on the evidence adduced at that meeting.

162 In light of the foregoing, Hoechst’s plea, so far as Chisso’s letter of 17 December 2002, together with the annexes, is concerned, must be rejected.

The internal documents relating to the telephone contacts between the Commission and Chisso between September 1998 and April 1999

163 As a preliminary point, it must be noted that during the administrative procedure Hoechst requested access only to the internal documents relating to the telephone conversations between the Commission and Chisso between September 1998 and April 1999. That is clear, in particular, from a letter which Hoechst sent to the hearing officer on 22 January 2003, and was confirmed at the hearing.

164 It must be borne in mind, next, that the right of access to the file implies that the Commission provides the undertaking concerned with the opportunity to examine all the documents in the investigation file that might be relevant for its defence, with the exception, in particular, of the Commission’s internal documents (see, to that effect, Aalborg Portland and Others v Commission, paragraph 145 above, paragraph 68).

165 The restriction on access to such documents is justified by the need to ensure the proper functioning of the Commission when it deals with infringements of the Treaty competition rules. The Commission’s internal documents can be made available only if the exceptional circumstances of the case so require, on the basis of serious indicia which it is for the party concerned to supply (see Cement, paragraph 153 above, paragraph 420 and the case-law cited, and Joined Cases T‑236/01, T‑239/01, T‑244/01 to T‑246/01, T‑251/01 and T‑252/01 Tokai Carbon and Others v Commission [2004] ECR II‑1181, paragraph 40).

166 In the present case, for the reasons set out at paragraphs 128 to 144 above, the arguments put forward by Hoechst concerning a breach of the principles of sound administration and equal treatment were rejected, save as regards the assurance given to Chisso at the meeting of 13 November 1998 that it would be warned if another undertaking attempted to overtake it in the context of the 1996 Leniency Notice.

167 As stated at paragraph 143 above, however, the illegality found in that regard is not of such a kind as to affect the validity of the Decision as regards, first, the finding of the infringement and, second, the determination of the undertaking which was the first to cooperate and therefore the granting of immunity from a fine.

168 Accordingly, the Court considers that no serious indicia exist, for the purposes of the case-law cited above, that would justify access by Hoechst to the internal documents in question. For that reason, Hoechst’s plea, in so far as it concerns the breach of the right of access to the internal documents relating to the telephone conversations between the Commission and Chisso between September 1998 and April 1999, must be rejected.

169 In the interest of completeness, and in the desire to demonstrate the truth in light of the breach of the principles of sound administration and equal treatment referred to above, the Commission was ordered, on the basis of Article 65(b) and the second subparagraph of Article 67(3) of the Rules of Procedure, to produce the internal documents in question to enable the Court to verify them. In accordance with the second subparagraph of Article 67(3) of the Rules of Procedure, the documents transmitted by the Commission were not communicated to the applicant while the Court verified their confidentiality and their relevance to the outcome of the case.

170 In the context of that verification, the Court considered that the internal documents in question did not apparently contain evidence relevant for the result of the case. Consequently, in view of the confidentiality normally attaching to documents