Opinion of Mr Advocate General Cosmas delivered on 15 July 1998. - Hercules Chemicals NV v Commission of the European Communities. - Appeal - Procedure - Obligation to deliver judgments in cases concerning the same decision at the same time - Rules of Procedure of the Commission - Procedure for the adoption of a decision by the College of Members of the Commission - Competition rules applicable to undertakings - Rights of the defence - Access to the file - Fine. - Case C-51/92 P.



European Court reports 1999 Page I-04235



Opinion of the Advocate-General

In this case the Court of Justice is called upon to deliver judgment on the appeal of Hercules Chemicals NV (hereinafter `Hercules') brought pursuant to Article 49 of the EEC Statute of the Court of Justice against the judgment of the Court of First Instance of 17 December 1991. (1) The judgment under appeal dismissed the action brought by the appellant company pursuant to Article 173 of the EEC Treaty (hereinafter `the Treaty') against the Commission's decision of 23 April 1986 (hereinafter the `Polypropylene' decision). (2) That decision concerned the application of Article 85 of the Treaty in the polypropylene production sector.

I - Facts and course of the procedure before the Court of First Instance

1 As regards the facts of the dispute and the course of the procedure before the Court of First Instance, the judgment under appeal relates as follows: Before 1977 the West European polypropylene market was supplied almost exclusively by ten producers. After 1977 and following the expiry of the controlling patents held by Montedison, seven new producers appeared with substantial production capacity. One of those new producers was Hercules, which was the largest producer on the American market with a share of the relevant West European market fluctuating between approximately 5% and 6.8%. That increase in real production capacity in Western Europe was not accompanied by a corresponding increase in demand, with the consequence that demand did not match supply, at least until 1982. More generally, for the greater part of 1977-1983, the polypropylene market was characterized by low profits or even significant losses.

2 On 13 and 14 October 1983 Commission officials, acting under the powers conferred by Article 14(3) of Council Regulation No 17 of 6 February 1962 (3) (hereinafter `Regulation No 17'), carried out simultaneous investigations in a number of undertakings operating in the polypropylene production sector. Following those investigations, the Commission addressed requests for information, under Article 11 of Regulation No 17, to the above companies, and also to other related undertakings. From the evidence obtained during the course of those investigations the Commission concluded that, between 1977 and 1983, certain polypropylene producers, including Hercules, had been acting in contravention of Article 85 of the Treaty. On 30 April 1984 the Commission decided to open the proceedings provided for in Article 3(1) of Regulation No 17 and sent a written statement of objections to the undertakings in contravention.

3 At the end of that procedure, the Commission adopted the abovementioned decision of 23 April 1986, which has the following operative part:

`Article 1

(The Companies) ... Hercules Chemicals NV ... have infringed Article 85 (1) of the EEC Treaty, by participating: ... - in the case of Hercules, Linz, Saga and Solvay, from about mid-1977 until at least November 1983 ... in an agreement and concerted practice originating in mid-1977 by which the producers supplying polypropylene in the territory of the EEC:

(a) contacted each other and met regularly (from the beginning of 1981, twice each month) in a series of secret meetings so as to discuss and determine their commercial policies;

(b) set "target" (or minimum) prices from time to time for the sale of the product in each Member State of the EEC;

(c) agreed various measures designed to facilitate the implementation of such target prices, including (principally) temporary restrictions on output, the exchange of detailed information on their deliveries, the holding of local meetings and from late 1982 a system of "account management" designed to implement price rises to individual customers;

(d) introduced simultaneous price increases implementing the said targets;

(e) shared the market by allocating to each producer an annual sales target or "quota" (1979, 1980 and for at least part of 1983) or in default of a definitive agreement covering the whole year by requiring producers to limit their sales in each month by reference to some previous period (1981, 1982).

...

Article 3

The following fines are hereby imposed on the undertakings named herein in respect of the infringement found in Article 1:

...

(v) Hercules Chemicals NV, a fine of 2 750 000 ECU, or 120 569 620 Belgian francs

...'.

4 Fourteen of the fifteen companies which were the addressees of the decision, including the appellant, brought an action for its annulment. At the hearing, which took place from 10 to 15 December 1990, the parties presented oral argument and answered questions from the Court. After hearing the Opinion of the Advocate General, the Court of First Instance dismissed the action in the judgment of 17 December 1991 cited above.

5 Hercules appealed against that judgment to the Court of Justice. In its appeal it claims that the Court should:

First, adopt the necessary measures in order to establish whether, in adopting the decision, the Commission complied with the relevant rules of procedure;

Secondly, declare the decision null and void on the ground that the Commission infringed essential procedural requirements;

Alternatively, quash the judgment and annul or reduce the fine imposed:

Finally, order the Commission to pay all the costs.

The Commission contends that the Court should dismiss the appeal and order the appellant to pay the costs.

The company, DSM NV, sought leave to appeal in these proceedings in support of Hercules. Its request was dismissed as inadmissible by order of the Court of 30 September 1992.

II - Admissibility of the grounds of appeal

6 As the Commission rightly points out, certain of the pleas which the appellant raises are not admissible at the appeal stage.

7 First, the plea that the appellate court should adopt measures of inquiry in order to establish whether the Commission Decision challenged before the Court of First Instance contains procedural flaws is inadmissible. The adoption of measures of that kind exceeds the powers of the appellate court and the limits of appellate review in general. (4)

8 The formulation of the appellant's other pleas is, moreover, also problematic. The appellant appears to be seeking, first, annulment by the Court of the Commission's Polypropylene decision and, in the alternative, the setting aside of the judgment at first instance. Consequently, those pleas are presented in their incorrect order in the appeal pleading. An appeal to the Court of Justice concerns solely a review of the legality of decisions of the Court of First Instance. (5) Only if it considers the appeal well founded may the Court, on quashing the decision of the Court of First Instance, and if the state of the proceedings so permits, itself give final judgment, in accordance with the provisions of Article 54 of the EEC Statute of the Court of Justice. Consequently, on a proper interpretation of the appeal pleading, Hercules is seeking first the quashing of the judgment at first instance concerning it and, further, should its first plea be successful, annulment of the Commission's Polypropylene decision. (6)

III - Grounds of appeal

A - The alleged breach of the rights of the defence

9 The appellant maintained at first instance that the rights of the defence conferred on it by Community law were infringed by the Commission's refusal to inform it, prior to adoption of the Polypropylene decision, of the replies of the other polypropylene producers, against whom the Commission's investigation was directed, to the allegations of infringements of the competition rules. In particular, Hercules considers that it was entitled to be apprised of the submissions of the other producers in reply to the Commission's statements of objections according to which those producers had together participated in activities contrary to Article 85 of the EC Treaty. The failure to inform it of those matters is said by Hercules to constitute an infringement of its rights of the defence. Nor could that omission be remedied after adoption of the contested decision by subsequent production of the relevant documents in the proceedings before the Court of First Instance.

10 In paragraph 56 of the judgment appealed against the Court of First Instance held as follows on the abovementioned plea put forward by Hercules: `As regards more particularly the Commission's refusal to grant the applicant access to the replies of the other producers to the statements of objections, the Court considers that it is not necessary to examine whether this refusal constitutes a breach of the rights of the defence. Such an examination would be necessary only if in the absence of that refusal the administrative proceedings could have led to a different result (judgment of the Court of Justice in Case 30/78 Distillers Company Ltd v Commission [1980] ECR 2229, paragraph 26, and judgment of the Court of First Instance in Case T-7/90 Kobor v Commission [1990] ECR II-721, paragraph 30). That is not so here. Following joinder of the cases for the purposes of the oral procedure before the Court, the applicant had access to the replies of the other undertakings to the statements of objections and it has not drawn from those replies any exonerating evidence on which it could have relied during the oral procedure. It is safe to conclude that those replies contained no exonerating evidence and therefore that the fact that the applicant was unable to have access to them during the administrative procedure could not have affected the result reached in the Decision.'

11 The first ground of appeal put forward by Hercules is directed precisely against that view of the matter taken by the Court of First Instance in the abovementioned paragraph 56. First, the appellant points out that its case is not analogous to the Distillers Company and Kobor cases to which the respondent refers. In the Distillers Company case the Court held that, even though the Commission had been guilty of procedural irregularities, the content of the contested decision would have been exactly the same because the undertaking concerned, by a procedural error of its own, had deprived itself of the right lawfully to put forward those matters which it might have drawn from those irregularities of the Commission. In Kobor the procedural defect established was held not to prejudice in the least the applicant's right to submit her claims and arguments to the Commission. The specific difference between those cases and the present one, according to the appellant, is the fact that, whereas in the former cases the rights of the defence available to parties to administrative proceedings were found not to have been impaired, in the present case, the undertaking concerned was unable, owing to the refusal to notify certain relevant information, to be defended in the best possible manner during the administrative proceedings. By taking the view of the matter which it did the Court of First Instance, Hercules maintains, is in the end result conferring rights of the defence only on those parties who have demonstrated their innocence to it. Consequently, it is disregarding the unconditional nature of the general principle at Community law of the protection of a party's right to defend itself. (7) The appellant considers that the breach of that right cannot be remedied by production of the unlawfully withheld information at a later stage of the proceedings, or discounted on the ground that the information supplied would not have changed the outcome of the administrative proceedings.

12 The Commission contends from the outset that the Court of First Instance was right to hold that an examination of the lawfulness or otherwise of the refusal to produce the information relied on by Hercules was not necessary, on the ground that, in any event, the administrative proceedings would not have arrived at a different result, even if that information had been provided. According to the Commission, that solution is in line with the Court's consistent case-law to the effect that where a procedural flaw would not have affected, in one way or another, the content of the decision of a Community body, it cannot be pleaded before the Court in support of a claim for the annulment of that decision. The respondent points out that that is the position adopted in the Distillers Company and Kobor cases, and that it is most appropriate because it averts the loss of time and money which would be caused by the annulment of acts which, as to their content, are entirely correct and lawful. In actual fact, the Court of First Instance, according to the Commission, is not depriving the accused of its rights of the defence but is rather not allowing consequences of disproportionate gravity to be drawn from the alleged procedural defects. In the alternative, the respondent points out that, in any event, the appellant's rights of the defence were not infringed. Hercules was not entitled to request access to the replies given by the other polypropylene producers to the statements of objections addressed to them by the Commission.

13 In that ground of appeal the appellant is touching both on the serious question of the protection of the rights of the defence conferred on the individual by Community law, in the context of administrative proceedings, and on the question of the legal consequences flowing from any breach of those rights. In the present case the issue is not the extent to which the claim by Hercules to access to a series of evidentiary documents was or was not well founded, that is to say whether it was grounded in the rights of the defence conferred by the Community legal order on undertakings against which proceedings have been brought under Regulation No 17. (8) That which must be examined in appeal proceedings is the correctness of the reasoning followed by the Court of First Instance: accordingly, it is not necessary to examine the extent to which refusal of access to the replies given by the other producers to the statements of objections constitutes an infringement of the rights of the party concerned because, even in the absence of that refusal, the administrative proceedings would have led to the same result. At first sight, that interpretative approach, which is in line with the Court's existing case-law, (9) appears to relativize the absolute nature of the rights of the defence. In other words, the finding of an infringement of that right does not automatically render the administrative proceedings defective, or necessarily entail annulment of the act adopted at the end of that procedure.

14 Such a solution would be unthinkable in criminal law. It is logical that, in cases where proceedings leading to the imposition of sanctions may result in the deprivation of a person's liberty, the procedural rules laid down as guarantees in favour of the person must be interpreted and applied as strictly as possible. It would be unexceptionable to argue that at criminal law there is a need for protection of the rights of the defence as to both substance and form. In spite of the considerable similarities between the criminal procedure and the corresponding proceedings (leading to the imposition of sanctions) to which I would assign proceedings under Regulation No 17, the need for protection of the accused is not equally imperative in both cases. Where, then, an administrative sanction has been imposed without precise observance of the forms required by the rights of the defence of the accused but also with no substantive alteration of those rights, I consider that, unlike the position at criminal law, administrative proceedings of the kind envisaged are not in the result vitiated by defects. The application in that manner of the rights of the defence, notwithstanding my reservations concerning the risks it entails, would seem to reconcile, as well as may be, the need for protection of the party concerned with that of the efficacy of the administrative proceedings.

15 Consequently, it is crucial in every case to inquire into the extent to which there has been impairment of the substance of the rights of the defence of the undertaking against which proceedings have been brought under Regulation No 17. That is also the position of the Court of First Instance in the present case, as may be inferred from the in my view more correct interpretation of the decision appealed against. For there to have been a substantial violation of the rights of the defence of Hercules, it would have been necessary for that undertaking to have been deprived, owing to the Commission's conduct, of the opportunity of putting forward a further factual submission or legal argument, already at the administrative stage of the proceedings leading to the imposition of sanctions under Regulation No 17, which would have been likely to lead to a different outcome of those proceedings, more favourable to the party concerned. Accordingly, there can be no ground for alleging a breach of the rights of the defence, inasmuch as Hercules, even after finally being informed of the content of the information to which it had sought access, was unable to draw from it any new or supplementary argument to refute the allegations addressed to it by the Commission and, indirectly, the legality of the sanction imposed. The Court of First Instance was right, in my view, to base itself on that finding in order to draw the inference that the appellant company's position was not rendered less favourable by the non-production, at the stage of the administrative proceedings, of certain documents in the Commission's possession. Consequently, that ground of appeal must be rejected as unfounded.

B - Alleged obligation to deliver judgments on a `single infringement' at the same time

16 The appellant maintains that the Court of First Instance infringed its rights of the defence on the ground that it did not deliver judgment on the same date in all the actions brought against the Commission's Polypropylene decision. To the extent to which Hercules was accepted as having participated, together with the other polypropylene undertakings, in a `single infringement', all the judgments on that infringement should, in the appellant's view, have been delivered on the same date. Otherwise there is a likelihood that the matters of law and fact underpinning the judgment on the action brought by Hercules may be subject to review in the process of adjudication of the other actions pending against the same decision. In that case, participants in the same `single infringement' could encounter a different application to them of the law, depending on the date on which judgment concerning them was delivered. The appellant considers that the possibility of different legal treatment of undertakings pursuing the same conduct is not permitted by the Community legal order.

17 Without its being necessary for me to reply individually to the appellant's arguments, I shall begin by observing that, in accordance with general principles of Community procedural law, the Court is master of its own procedure and enjoys full freedom in the choice of the time at which it adopts its judgments. Nor would it be possible, moreover, to infer an obligation on the part of the Court of First Instance to deliver judgment on the same date in all connected cases, even when they are heard together, from any other procedural principle, for example relating to the proper administration of justice or the right of judicial protection for persons subject to Community law. Simultaneous delivery of the judgments in question is in the discretion of, and not mandatory for, the Community judicature. Consequently, the choice made by the Court of First Instance not to deliver judgment on the same date in all the cases brought against the Polypropylene decision does not run counter to Community law and is legally unobjectionable. Accordingly, the second ground of appeal put forward by Hercules must be rejected as ill-founded.

C - Contradiction between the reasoning and the operative part of the contested judgment

18 In its third ground of appeal Hercules submits that the Court of First Instance erred in imputing to it participation in concerted practices concerned with the fixing of sales volume targets for the years 1981 and 1982. In that connection it points out that the conclusion reached by the Court of First Instance that Hercules participated in the `... monitoring, conducted at the regular meetings, of the implementation of a system for restricting monthly sales' (paragraph 222 of the judgment appealed against) contradicts the finding that Hercules `... had not disclosed figures relating to its sales volumes ...' (paragraph 207). According to Hercules, the Court of First Instance based its view on the erroneous finding that `(...) without any objection on its part (Hercules) was allocated a quota calculated on the basis of figures available through the Fides system' (paragraph 230), since the Commission itself acknowledged that it was not possible to calculate the production or turnover of Hercules on the basis of the Fides data.

19 In its reply the Commission maintains that that ground of appeal seeks to call in question a finding of fact by the Court of First Instance, which is inadmissible. It further underlines that the reference in the contested judgment to the Fides system does not conflict with the fact that the other polypropylene producers were unable to inform themselves of the production quantities of the appellant simply by having recourse to the data of that system.

20 The appellant is maintaining, under this ground of appeal, that there is a contradiction between the facts as found by the Court of First Instance and the legal conclusion which the Court finally adopts. In actual fact, however, it is challenging, on the ground of inaccuracy, the Court's finding that the production of Hercules was subject to quotas whose quantities could be determined on the basis of the data contained in the Fides system. In other words, it is calling in question the findings of fact in the present case, as found by the court trying the substantive issues, and as such that ground is accordingly inadmissible on appeal.

D - Failure by the Court of First Instance to apply the Rule of Law in Orkem

21 According to the appellant, the Polypropylene decision contains findings of fact which in their turn are based on factual evidence obtained by the Commission in violation of the rights of the defence. In particular, the appellant recalls that the Commission had requested it, in a letter of 16 November 1983, to reply to a series of questions which were formulated in such a manner as to compel Hercules to indirectly acknowledge its guilt. However, in accordance with the rule in Orkem (10) - as interpreted by the appellant - Hercules was not obliged to give evidence against itself and, consequently, was entitled not to reply to the questions put by the Commission. Consequently, the appellant observes, the evidence used in that way by the Commission was obtained unlawfully in breach of the rights of the defence. To the extent to which, therefore, the Court of First Instance did not sanction that breach, it erred in law, according to the fourth ground of appeal put forward by Hercules, with the consequence that the judgment should be quashed.

22 The Commission doubts whether this ground of appeal is admissible. In that connection it points out that the question as to the extent to which Hercules was able or unable not to reply to the questions put by the Commission was not raised at first instance by Hercules, but is submitted for the first time before the appellate court where it must be rejected as inadmissible.

23 That ground of appeal refers to the rule of Community law which was applied for the first time in the Orkem judgment of the Court. Under that rule `the Commission may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove'. (11)

24 I consider, however, that in the present case the Court cannot examine that question of law on its merits. In order for the appellate court to determine a plea on appeal which goes to an alleged breach of the law by the court trying the merits of the case and in particular a failure by that court to apply a certain rule of law, it is first necessary for the facts on which the party bases that allegation of a breach (12) to appear fully from the content of the contested judgment. If the factual evidence in question does not exist in the contested judgment, that judgment may be quashed only if the appellant had submitted before the court trying the case on its merits the relevant factual contention and the Court of First Instance had omitted to examine it.

25 As far as the present case is concerned, it should be pointed out, at the outset, that the following matters only emerge from paragraphs 5 and 6 of the contested judgment: following simultaneous investigations conducted into undertakings producing polypropylene, the Commission addressed requests for information under Article 11 of Regulation No 17 to undertakings including Hercules. The evidence obtained during the course of those investigations and pursuant to the requests for information led the Commission to form the view that the producers concerned had been involved in a series of contraventions of Article 85 of the Treaty. Nowhere in the contested judgment is there a reference to the content and formulation of the questions contained in the request for information addressed by the Commission to Hercules. In its appeal Hercules inadmissibly sets out the exact content both of those questions and of the replies which it gave. Thus, inasmuch as the exact nature of the request for information cannot be appraised on appeal, no conclusion may be drawn in relation to the extent to which that request unlawfully obliged Hercules to acknowledge its guilt. Consequently, it cannot be inferred from the content of the contested judgment that the Court of First Instance omitted to apply or incorrectly applied the rule under which an undertaking accused of infringements of competition law cannot be required to give evidence against itself, nor in any event does the appellant maintain that it raised that plea at first instance and did not receive a reply. (13)

E - As to the fine

26 The Court of First Instance erred, according to the appellant, by failing to annul or at least to reduce the amount of the fine imposed, although a request to that effect was lawfully made to it. In particular, Hercules considers that the Court of First Instance did not take account of its secondary role, as compared to the other polypropylene producers, in the infringements of Article 85 of the Treaty in question. Moreover, the appellant submits, even though the Court of First Instance found that Hercules was not involved in attempts to implement price initiatives and sales volume targets in respect of 1983, it omitted to reduce on that ground the fine imposed. Moreover, a reduction in the fine was called for, according to Hercules, on account of the following additional factors: on the one hand, the breach by the Commission of Hercules' rights of the defence and, on the other, that undertaking's non-participation in the quota schemes for 1981.

27 Like the Commission, the Court of First Instance examined, at paragraph 323 of the judgment appealed against, the role played by Hercules in the infringement and held that, in the light of that role, the fine imposed was justified. Moreover, and in relation to the question whether the appellant's participation in the infringement also covers the year 1983, the Commission refers to paragraph 256 of the judgment appealed against, as rectified by the order of 9 March 1992. Following that rectification it is clear, the Commission says, that the Court of First Instance accepted that Hercules also participated in the infringement in 1983; consequently, there is no reason, the Commission says, to reduce the fine. Finally, the Commission rejects the appellant's submissions concerning a breach of the rights of the defence and its non-participation in the quota scheme for 1981; it goes on to contend that, by way of logical consequence, there can be no question of a reduction in the fine.

28 In connection with the abovementioned submissions, it should be pointed out straight away that the possibility of imposing fines in cases where Article 85(1) of the Treaty has been infringed is expressly provided for by Article 15(2) of Regulation No 17. Under the same provision the criteria to be taken into account in determining the amount of the fine are the gravity and duration of the infringement.

29 What determines, however, the gravity of the unlawful conduct? In that connection the Court has held that `the gravity of infringements must be determined by reference to numerous factors such as, in particular, the particular circumstances of the case, its context and the dissuasive element of fines; moreover, no binding or exhaustive list of the criteria which must be applied has been drawn up'. (14) In that context the Court of First Instance has sole competence to review the manner in which the Commission in each case evaluates the gravity of the unlawful conduct. The scope of the appellate court's review is merely to determine whether the court trying the case on its merits took into consideration, in accordance with the law, all the substantive factors arising in such a case which are relevant to an assessment of the gravity of certain conduct in the light of Article 85. Appellate review does not extend, however, to a consideration of the manner in which the Court of First Instance assessed those factors on each occasion.

30 In the light of the abovementioned observations it should be noted at the outset that the Court of First Instance took into account, in reviewing the amount of the fine imposed on Hercules, the role played by the latter in the commission of the infringement. In the words of paragraph 323 of the judgment appealed against `the Court finds that it is clear from its assessments relating to proof of the infringement that the Commission has correctly established the role played by the applicant in the infringement and that the Commission indicated in point 109 of the Decision that it took account of that role when determining the amount of the fine'. It may be inferred, therefore, from that paragraph that the Court of First Instance examined the individual role played by the appellant in committing the infringement as a criterion in the calculation of the amount of the fine. Consequently, the assertion to the contrary by the appellant is based on an incorrect supposition and for that reason must be rejected.

31 As regards the question whether the infringement by Hercules came to an end in 1982 or 1983 it is worth making the following observations: if it had indeed been acknowledged in the judgment appealed against, as opposed to the Commission's Polypropylene decision, that Hercules ceased to participate in the infringements in question in 1982 and not in 1983, then the fine imposed would have had to be reduced proportionately. However, contrary to the appellant's assertions, the Court of First Instance held the year 1983 to be the concluding point in time of the infringement by Hercules. The original certified copy of the judgment appealed against, in the form in which it was published on 17 December 1991 and notified to Hercules, referred erroneously to 1982. However, under Article 84(1) of its Rules of Procedure, the Court of First Instance rectified the original text of its judgment by order of 9 March 1992, which states that the appellant's involvement in the infringement continued until 1983. Consequently, the appellant's assertion that the fine imposed on it should be reduced as a consequence of the fact that its participation in the infringement terminated in 1982 is based on an erroneous supposition. (15) Accordingly, that ground of appeal must be rejected. (16)

32 In regard to the appellant's two remaining assertions I would merely point out that, in the context of this ground of appeal, it is otiose to go into them since they are dependent on two other grounds of appeal being successful which, however, as I explain above, (17) is not the case.

IV - Conclusion

33 In light of all the foregoing I propose that the Court should:

(1) Dismiss in its entirety the appeal brought by SA Hercules NV;

(2) Order the appellant to pay the costs.

(1) - Case T-7/89 Hercules v Commission [1991] ECR II-1711.

(2) - IV/31.149 - Polypropylene, OJ 1986 L 230, p. 1.

(3) - OJ, English Special Edition 1959-1962, p. 87.

(4) - For a more extensive discussion of this question please refer to paragraphs 26 and 27 of my Opinion delivered on the same date in analogous Case C-199/92 P (Hüls v Commission).

(5) - See Articles 49 and 51 of the EEC Statute of the Court of Justice.

(6) - In accordance with the, in my opinion, more correct view of the matter which accords generally with traditions in national law, Article 113(1) of the Rules of Procedure of the Court, pursuant to which `An appeal may seek: - to set aside, in whole or in part, the decision of the Court of First Instance; - the same form of order, in whole or in part, as that sought at first instance and shall not seek a different form of order', does not mean that the appellant may separately either seek the setting aside of the decision appealed against or reiterate the form of order sought at first instance. It follows from those provisions, in conjunction with Articles 49 to 54 of the EEC Statute of the Court, that the appellant must of necessity direct its appeal against the judgment at first instance, and its pleas going to the substance of the case are conditional upon the setting aside of that judgment.

(7) - The appellant refers to the judgments of the Court in Case 322/81 Michelin v Commission [1983] ECR 3461; and in Cases C-48/90 and C-66/90 Netherlands and Others v Commission [1992] ECR I-565.

(8) - Thus I shall not examine the arguments of the Commission according to which Hercules could not in any event found a right of access to the information relied on. That issue would require to be elucidated only if the reasoning followed by the Court of First Instance were in the end to be adjudged erroneous.

(9) - See Distillers Company and Kobor cited in paragraph 10.

(10) - Judgment in Case 374/87 Orkem v Commission [1989] ECR 3283.

(11) - Paragraph 35 of the Orkem judgment, cited above at footnote 10.

(12) - That is to say the facts required for formulation of the minor premiss of the legal reasoning.

(13) - In any event, inasmuch as Hercules agreed to reply to the request for information, it is not entitled to request the Commission not to take account of the content of its replies.

(14) - Order of the Court in Case C-137/95 SPO and Others v Commission [1996] ECR I-1611, paragraph 54. See judgments of the Court in Case 45/69 Boehringer Mannheim v Commission [1970] ECR 769, in Joined Cases 100/80 to 103/80 Musique Diffusion Française v Commission [1983] ECR 1825, paragraph 120 and in Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ v Commission [1983] ECR 3369, paragraph 52.

(15) - For the sake of accuracy, it is not a question of a mistaken reading of the text of the judgment at first instance, but rather of a correct reading of an erroneous text of that judgment, a defect which entails, none the less, the same legal consequences.

(16) - It should be noted that there can be no link between the issue of the degree of observance of the rights of the defence and that of the fine. The consequence of an infringement of the rights of the defence is the inability to rely on the evidence obtained unlawfully by the Commission, and the consequent annulment of the act based on that evidence so that the question of the imposition of a fine no longer arises.

(17) - See paragraphs 9 to 15 and 18 to 20.