Judgment of the Court of First Instance (Third Chamber, extended composition) of 20 April 1999. - Limburgse Vinyl Maatschappij NV, Elf Atochem SA, BASF AG, Shell International Chemical Company Ltd, DSM NV and DSM Kunststoffen BV, Wacker-Chemie GmbH, Hoechst AG, Société artésienne de vinyle, Montedison SpA, Imperial Chemical Industries plc, Hüls AG and Enichem SpA v Commission of the European Communities. - Competition - Article 85 of the EC Treaty - Effects of a judgment annulling e measure - Rights of the defence - Fine. - Joined cases T-305/94, T-306/94, 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.



European Court reports 1999 Page II-00931



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

1 Procedure - Application initiating proceedings - Defence - Reply - Procedural requirements - Summary of the pleas in law on which the application is based - Pleas in law not set out in the application or other written pleadings - General reference made to other documents - Inadmissible

(Rules of Procedure of the Court of First Instance, Arts 44(1)(c), 46(1)(b) and 47(1))

2 Procedure - Absolute bar to proceeding with an action - Court may consider of its own motion whether any such bar exists - Cases in which new pleas in law are put forward in the course of the proceedings

(Rules of Procedure of the Court of First Instance, Arts 48(2) and 113)

3 Procedure - Res judicata - Cases in which final judgment in a dispute is given on appeal by the Court of Justice - Scope

(EC Statute of the Court of Justice, Art. 54, first para.)

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

(Treaty on European Union, Art. F(2))

5 Community law - Principles - Fundamental rights - Observance ensured by the Community judicature - European Convention on Human Rights taken into consideration

(EC Treaty, Arts 178 and 215, second para.; Council Regulation No 17)

6 Competition - Administrative proceedings - Obligations of the Commission - Action to be taken within a reasonable time - Criteria of assessment - Breach - Consequences

(EC Treaty, Arts 85, 173 and 189)

7 Actions for annulment - Judgment annulling a measure - Effects - Annulment of a Commission decision finding that the competition rules have been infringed - Effects vis-à-vis addressees who have not brought proceedings - None

(Council Regulation No 17, Art. 19(1); Commission Regulation No 99/63)

8 Actions for annulment - Judgment annulling a measure - Effects - Commission decision finding that the competition rules have been infringed - Annulled on account of a procedural defect occurring at the final stage of its adoption - Measures preparatory to that decision not affected

(EC Treaty, Arts 173 and 184)

9 Competition - Administrative proceedings - Hearings - Annulment, on account of a procedural defect, of a Commission decision finding an infringement - Measures preparatory to that decision not affected - New decision - Whether obligatory to hold another hearing - Conditions

(1993 Rules of Procedure of the Commission, Art. 16, first para.)

10 Plea of illegality - Scope - Measures in respect of which a plea of illegality may be raised - Internal rules of an institution

(Council Regulation No 1, Art. 3; Commission Regulation No 99/63, Art. 2(1))

11 Acts of the institutions - Authentication of measures adopted - Detailed rules - Internal rules of the Commission

(EC Treaty, Art. 173; Council Regulation No 17, Art. 14(3))

12 Community law - Principles - Whether there is a principle requiring continuity in the composition of administrative bodies - No such principle

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

13 Competition - Administrative proceedings - Rules governing languages - Annexes to the statement of objections - To be available in the original language

(Council Regulation No 17, Art. 11)

14 Competition - Administrative proceedings - Observance of the rights of the defence - Whether the parties involved in a proceeding are entitled to have sight of the report of the hearing officer and to comment thereon - No such right

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

15 Actions for annulment - Actionable measures - Investigation decision pursuant to Article 14 of Regulation No 17 - Conditions governing admissibility

(EC Treaty, Art. 85(1); Council Regulation No 17)

16 Competition - Administrative proceedings - Powers of the Commission in investigations - Investigations carried out pursuant to an authorisation - Protection against arbitrary or undue interference by public authorities - Conditions

(Commission Regulation No 99/63, Art. 4)

17 Community law - Principles - Rights of the defence - Observance thereof during administrative proceedings - Competition - Decision to request information, addressed to an undertaking - Right to refuse to provide an answer which might involve an admission of an infringement

(EC Treaty, Art. 85(1))

18 Competition - Administrative proceedings - Powers of the Commission in investigations - Purposes for which information acquired during an investigation may be used - Limits

(EC Treaty, Art. 85(1))

19 Competition - Agreements, decisions and concerted practices - Proof of participation - Refusal or inability of an undertaking to comply with requests for information - Does not constitute proof

(EC Treaty, Art. 85(1))

20 Competition - Administrative proceedings - Statement of objections - Whether additional documents may subsequently be sent to the parties - Conditions - Observance of the rights of the defence

(EC Treaty, Art. 85(1))

21 Competition - Agreements, decisions and concerted practices - Complex infringement comprising elements both of an agreement and of a concerted practice - Classified singly as an `agreement and/or concerted practice' - Whether permissible - Consequences as to the evidence required

(EC Treaty, Art. 85(1))

22 Competition - Agreements, decisions and concerted practices - Concerted practice - Concept - Coordination and cooperation incompatible with the obligation on each undertaking to determine its market conduct independently

(EC Treaty, Art. 85(1))

23 Competition - Agreements, decisions and concerted practices - Concerted practice - Parallel market conduct - Presumption of concerted practice - Provision of evidence of concerted action

(Council Regulation No 17)

24 Competition - Agreements, decisions and concerted practices - Whether an undertaking may be held responsible for an overall cartel - Criteria

(Council Regulation No 17)

25 Competition - Community rules - Infringements - Attribution of responsibility - Legal person responsible for the operation of the undertaking at the material time - Where that person has ceased to exist - Liability to be attributed to the legal person who has become responsible

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

26 Competition - Community rules - Infringement by a subsidiary - Parent company may be held responsible - Conditions

(EC Treaty, Art. 190; Council Regulation No 17, Art. 15)

27 Competition - Administrative proceedings - Access to the file - Purpose - Observance of the rights of the defence - Utility of documents for the defence - Assessent of utility by the Commission alone - Not permissible

(Council Regulation No 17, Art. 15)

28 Competition - Administrative proceedings - Observance of the rights of the defence - Failure to give proper access to the file - Consequences

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

29 Competition - Administrative proceedings - Limitation periods in proceedings - Suspension of the limitation period - Consequential status of a Commission decision imposing a fine

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

30 Acts of the institutions - Statement of reasons - Obligation - Scope - Decision imposing fines for infringement of the competition rules - Desirable that the method of calculating the fine be disclosed

(EC Treaty, Art. 190; Council Regulation No 17, Art. 15)

31 Competition - Fines - Determined on the basis of an undertaking's own conduct - Where another trader has not been penalised - Irrelevant

(Council Regulation No 17, Art. 15)

32 Competition - Administrative proceedings - Cessation of the infringements - Powers of the Commission - May direct undertakings to desist - Limits

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

Summary

1 Under Article 44(1)(c) of the Rules of Procedure of the Court of First Instance, all applications must indicate the subject-matter of the proceedings and include a brief statement of the grounds relied on. The information given must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to give a ruling, if appropriate, without recourse to other information.

In order to ensure legal certainty and the sound administration of justice, for an action to be admissible the essential facts and law on which it is based must be apparent from the text of the application itself, even if only stated briefly, provided the statement is coherent and comprehensible. Although specific points in the text of the application can be supported and completed by references to specific passages in the documents attached, a general reference to other documents cannot compensate for the lack of essential information in the application itself, even if those documents are attached to the application. Moreover, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental purpose.

That interpretation of Article 44(1)(c) of the Rules of Procedure also applies to the conditions for admissibility of a reply, which according to Article 47(1) of the Rules of Procedure is intended to supplement the application; pursuant to Article 46(1)(b) of the Rules of Procedure, Article 44(1)(c) also applies to the conditions for admissibility of the defence.

2 Under Article 113 of its Rules of Procedure, the Court of First Instance may of its own motion consider whether there is any absolute bar to proceeding with an action. Accordingly, pleas in law which are set out for the first time at the reply stage and which are not based on matters of law or of fact coming to light in the course of the procedure, must be declared inadmissible under Article 48(2) of those Rules of Procedure.

3 The principle of res judicata extends only to the matters of fact and law actually or necessarily settled by a judicial decision.

The second sentence of the first paragraph of Article 54 of the Statute of the Court of Justice does not mean that, where the Court, in the exercise of its appellate jurisdiction, itself gives final judgment in a dispute by accepting one or more pleas raised by the appellants, it automatically settles all points of fact and law raised by the latter in the context of the case.

4 Where the Court of Justice has annulled a Commission decision - finding that the competition rules have been infringed and imposing fines - because it has not been duly authenticated, without disposing of the substantive pleas in law raised by the applicant undertakings, and the Commission then adopts a fresh decision finding against those undertakings, thus merely remedying the formal defect found by the Court, the Commission cannot be said to be taking action against the applicants twice in relation to the same set of facts or to be penalising them twice in respect of the same infringement, contrary to the principle of non bis in idem.

5 Fundamental rights form an integral part of the general principles of Community law whose observance the Community judicature ensures. For that purpose, the Court of Justice and the Court of First Instance rely on the constitutional traditions common to the Member States and the guidelines supplied by international treaties and conventions on the protection of human rights on which the Member States have collaborated or to which they are signatories. The European Convention on Human Rights, to which express reference is made in Article F(2) of the Treaty on European Union, has special significance in that respect.

6 Infringement of the general principle of Community law that decisions following administrative proceedings relating to competition policy must be adopted within a reasonable time justifies annulment of a Commission decision only in so far as it also constituted an infringement of the rights of defence of the undertakings concerned. Where it has not been established that the undue delay has adversely affected the ability of the undertakings concerned to defend themselves effectively, failure to comply with the principle that the Commission must act within a reasonable time cannot affect the validity of the administrative procedure and can therefore be regarded only as a cause of damage capable of being relied on before the Community judicature in the context of an action based on Article 178 and the second paragraph of Article 215 of the Treaty.

Whether the time taken for a procedural stage is reasonable must be assessed in relation to the individual circumstances of each case, and in particular its context, the conduct of the parties during the procedure, what is at stake for the various undertakings concerned and its complexity.

7 A Commission decision finding that several undertakings have infringed Article 85 of the Treaty and imposing a fine on each of them must be treated as a series of individual decisions even though it is drafted and published in the form of a single decision.

Accordingly, if an addressee decides to bring an action for annulment, the Community judicature has before it only the elements of the decision which relate to that addressee. The unchallenged elements of the decision relating to other addressees, on the other hand, do not form part of the subject-matter of the dispute which the Court is called on to resolve. Consequently, the decision can be annulled only as regards the addressees who have been successful in such actions.

Where, on grounds of procedural irregularity, the Court has annulled a decision concerning competition matters, and the Commission subsequently addresses a fresh decision solely to the addressees of the annulled decision who were successful in their actions, the Commission does not thereby infringe the principle of non-discrimination.

8 Where a Commission decision finding that the competition rules have been infringed is annulled by the Court of Justice on account of a procedural defect which occurred at the final stage of its adoption, and which affects only the manner in which it was finally adopted - for instance, lack of due authentication - the annulment does not affect the validity of the measures preparatory to that decision, taken before the stage at which the defect was found.

9 Given that, where a Commission decision finding that the competition rules have been infringed is annulled by the Court of Justice on account of a procedural defect relating to lack of due authentication, the annulment does not affect the validity of the measures preparatory to that decision, taken before the stage at which the defect occurred, a new hearing of the undertakings concerned is required, prior to the adoption by the Commission of a new decision, only to the extent that the latter contains objections which are new in relation to those set out in the decision annulled. In that regard, the fact that the new decision is adopted in factual and legal circumstances different from those which existed at the time when the original decision was adopted does not in any sense mean that the new decision contains new objections.

10 Article 184 of the Treaty expresses a general principle conferring upon any party to proceedings the right to challenge, for the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of the institutions which form the legal basis of the decision under challenge, if that party was not entitled under Article 173 of the Treaty to bring a direct action challenging those acts, by which it was thus affected without having been in a position to seek to have them declared void.

Article 184 of the Treaty must therefore be given a wide interpretation in order to ensure effective review of the legality of the acts of the institutions. Its scope must extend to acts of the institutions which, although not in the form of a regulation, produce similar effects. In particular, it must extend to internal rules of an institution which, although they do not constitute the legal basis of the contested decision, determine the essential procedural requirements for adopting that decision and thus ensure legal certainty for those to whom it is addressed.

Consequently, in the context of an action for annulment of a Commission decision on a competition matter, those of the Commission's Rules of Procedure which are designed to ensure the protection of individuals may be the subject-matter of a plea of illegality. However, there must be a direct legal connection between the contested individual decision and the rules of procedure alleged to be unlawful.

11 The rules governing authentication of Commission measures, which are laid down in the first paragraph of Article 16 of its 1993 Rules of Procedure, constitute in themselves a sufficient guarantee for determining, in case of dispute, whether texts notified or published correspond perfectly with the text adopted by the college and thus with the intention of their author. Since that text is annexed to the minutes, and the first page of the minutes is signed by the President and the Secretary-General, there is a link between those minutes and the documents which they cover which allows certainty as to the exact content and form of the college's decision.

12 There is no general principle of Community law requiring continuity in the composition of an administrative body handling a procedure which may lead to a fine.

13 The annexes to the statement of objections not emanating from the Commission should be regarded not as `documents' within the meaning of Article 3 of Council Regulation No 1 but as supporting evidence on which the Commission relies. They are therefore to be brought to the attention of the addressee as they are. The Commission thus commits no infringement of Article 3 of Council Regulation No 1 by communicating those annexes in their original language versions.

14 The rights of the defence do not require that undertakings involved in a proceeding under Article 85(1) of the Treaty be able to comment on the report of the hearing officer. Observance of the rights of the defence is sufficiently assured where the various authorities which contribute to the final decision are correctly informed of the arguments of the undertakings in reply to the objections communicated to them by the Commission and the evidence submitted by the Commission in support thereof. The report of the hearing officer is a purely internal Commission document, which contains only advice, and whose purpose is not to supplement or correct the arguments of the undertakings, or to formulate new objections or to supply new evidence against them.

15 Decisions to investigate under Article 14(3) of Regulation No 17 are in themselves measures which may be the subject-matter of an action for annulment on the basis of Article 173 of the Treaty.

Accordingly, in an action for annulment of a final decision adopted by the Commission pursuant to Article 85(1) of the Treaty, an undertaking cannot plead the illegality of an investigation decision addressed to it, and which it has not challenged within the time-limits. It may, on the other hand, in the context of such an action and in so far as documents obtained by the Commission are used against it, challenge the legality of investigation decisions addressed to other undertakings, whose actions to challenge the legality of those decisions directly, if brought, may or may not have been admissible. Likewise, in an action contesting the Commission's final decision, the undertaking may challenge the manner in which the investigation procedures were conducted.

16 It is apparent from Article 14(2) of Regulation No 17 that investigations carried out on a simple authorisation are based on the voluntary cooperation of the undertakings. Where an undertaking has in fact cooperated in an investigation carried out on authorisation, a plea alleging undue interference by the public authority is unfounded, in the absence of any evidence that the Commission went beyond the cooperation offered by the undertaking.

17 Observance of the rights of the defence is a fundamental principle which must be respected, not only in administrative proceedings which may lead to the imposition of penalties, but also in preliminary inquiry procedures, such as requests for information pursuant to Article 11 of Regulation No 17, which may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings.

In order to ensure the effectiveness of Article 11(2) and (5) of Regulation No 17, the Commission is entitled to compel an undertaking to provide all necessary information concerning such facts as may be known to it and to disclose to the Commission, if necessary, such documents relating thereto as are in its possession, even if the latter may be used to establish, against it or another undertaking, the existence of anti-competitive conduct. Nevertheless, the Commission may not, by a decision to request information, undermine the undertaking's defence rights. Thus it 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.

18 Having regard to Articles 14 and 20(1) of Regulation No 17, information obtained during investigations must not be used for purposes other than those indicated in the authorisation or decision under which the investigation is carried out. That requirement is intended to protect both professional secrecy and the defence rights of undertakings.

On the other hand, it cannot be concluded that the Commission is barred from initiating an inquiry in order to verify or supplement information which it happened to obtain during a previous investigation if that information indicates the existence of conduct contrary to the competition rules in the Treaty. Moreover, the Commission, having obtained documents in one matter and used them as evidence to open another proceeding, is entitled, on the basis of authorisations or decisions concerning that second proceeding, to request fresh copies of those documents and to use them as evidence in the second matter.

The contrary approach would go beyond what is required to safeguard professional secrecy and the rights of the defence, and would thus constitute an unjustified hindrance to the Commission in the accomplishment of its task of ensuring compliance with the competition rules in the common market.

19 The refusal to reply to requests for information made by the Commission pursuant to Article 11 of Regulation No 17, or the impossibility of replying to them, cannot in itself constitute proof of an undertaking's participation in an agreement.

20 There is no provision which prevents the Commission, after it has communicated the statement of objections, from sending the parties to a competition proceeding fresh documents which, in its view, support its argument, subject to giving the undertakings the necessary time to submit their views on the subject. Accordingly, the fact that a document was neither mentioned in the statement of objections nor annexed thereto cannot itself affect the legality of the decision.

21 In the context of a complex infringement which involves many producers seeking over a number of years to regulate the market between them, the Commission cannot be expected to classify that infringement precisely, for each undertaking and for any given moment, as either an agreement or a concerted practice, since, in any event, both those forms of infringement are covered by Article 85 of the Treaty.

The Commission is therefore entitled to classify that type of complex infringement as an agreement `and/or' concerted practice, inasmuch as the infringement includes elements which are to be classified as an `agreement' and elements which are to be classifed as a `concerted practice'. In such a situation, the dual classification must be understood not as requiring simultaneous and cumulative proof that every one of those factual elements reveals the factors constituting an agreement and a concerted practice, but rather as designating a complex whole that includes factual elements of which some have been classified as an agreement and others as a concerted practice within the meaning on Article 85(1) of the Treaty, which does not provide for any specific classification in respect of that type of complex infringement.

22 Although Article 85 of the Treaty distinguishes between `concerted practices', `agreements between undertakings' and `decisions by associations of undertakings', the object is to bring within the prohibitions laid down in that provision a form of coordination between undertakings which, without having reached the stage where an agreement properly so-called has been concluded, knowingly substitutes practical cooperation between them for the risks of competition. The criteria of coordination and cooperation, far from requiring the elaboration of an actual `plan', must be understood in the light of the concept inherent in the Treaty provisions relating to competition, according to which each economic operator must determine independently the policy which he intends to adopt on the common market. Although that requirement of independence does not deprive economic operators of the right to adapt themselves intelligently to the existing and anticipated conduct of their competitors, it strictly precludes any direct or indirect contact between such operators with the object or effect either to influence the conduct on the market of an actual or potential competitor or to disclose to such a competitor the course of conduct which they themselves have decided to adopt or which they contemplate adopting on the market.

23 Where the reasoning which has led the Commission to find that the competition rules have been infringed is based on the supposition that the facts established cannot be explained otherwise than by concerted action between undertakings, it is sufficient for the applicants to prove circumstances which cast the facts established by the Commission in a different light and thus allow another explanation of the facts to be substituted for the one adopted by the Commission.

On the other hand, where the evidence of concerted action is based not on a mere finding of parallel market conduct but on documents which show that the practices were the result of concerted action, the burden is on the undertakings concerned not merely to submit an alleged alternative explanation for the facts found by the Commission but to challenge the existence of those facts established on the basis of the documents produced by the Commission.

24 An undertaking may be held responsible for an overall cartel - consisting, for instance, in the regular organisation over the years of meetings of rival producers, the aim of which was to establish illicit practices intended to organise artificially the functioning of a market - even though it is shown to have participated directly only in one or some of its constituent elements if it knew (or it is established that it must have known) that the collusion in which it participated was part of an overall plan intended to distort competition and that the overall plan included all the constituent elements of a cartel.

25 Where an infringement of Article 85(1) of the Treaty is found to have been committed, it is necessary to identify the natural or legal person who was responsible for the operation of the undertaking at the time, so that it can be made answerable for it.

Where, however, between the infringement and the time when the undertaking in question must answer for it, the person responsible for the operation of that undertaking has ceased in law to exist, it is necessary, first, to establish the combination of physical and human elements which contributed to the infringement and then to identify the person who has become responsible for their operation, so as to avoid the result that because of the disappearance of the person responsible for its operation when the infringement was committed the undertaking may evade liability for it.

26 The fact that a subsidiary has separate legal personality is not sufficient to exclude the imputation of its conduct to the parent company, especially where the subsidiary does not determine its market conduct independently but in all material respects carries out the instructions given to it by the parent company.

27 In competition cases, the purpose of providing access to the file is to enable the addressees of statements of objections to examine evidence in the Commission's file so that they are in a position effectively to express their views on the conclusions reached by the Commission in its statement of objections on the basis of that evidence.

Access to the file is one of the procedural safeguards intended to protect the rights of the defence, observance of which is a fundamental principle which requires that the undertaking concerned be afforded the opportunity during the administrative procedure to make known its views on the truth and relevance of the facts, charges and circumstances relied on by the Commission.

In the adversarial proceedings for which Regulation No 17 provides, it cannot be for the Commission alone to decide which documents are of use for the defence. Having regard to the general principle of equality of arms, the Commission cannot be permitted to decide on its own whether or not to use documents against the undertakings concerned, where the latter had no access to them and were therefore unable to take the relevant decision whether or not to use them in their defence.

However, access to the file cannot extend to internal documents of the institution, the business secrets of other undertakings and other confidential information.

28 In the context of an administrative proceeding in a competition case, breach of an undertaking's rights of defence as regards access to the Commission's administrative file does not warrant annulment of a decision finding that there has been an infringement unless the ability of that undertaking to defend itself has been affected by the conditions in which it had access to the Commission's administrative file. In that respect, it is sufficient for a finding of infringement of defence rights for it to be established that non-disclosure of the documents in question might have influenced the course of the procedure and the content of the decision to the applicant's detriment.

Any infringement of the rights of the defence occurring during the administrative procedure cannot be remedied in the proceedings before the Court of First Instance, whose review is restricted to the pleas raised and cannot therefore be a substitute for a thorough investigation of the case in the form of an administrative proceeding.

29 The specific purpose of Article 3 of Regulation No 2988/74 concerning limitation periods in proceedings and the enforcement of sanctions under the rules relating to transport and competition is to enable the limitation period to be suspended where the Commission is prevented from acting for an objective reason not attributable to it and connected precisely with the fact that an action is pending. A Commission decision imposing a fine cannot be regarded as final so long as the statutory period for bringing an action against it continues to run or, in appropriate cases, an action is pending.

30 The statement of reasons required by Article 190 of the Treaty must be appropriate to the measure at issue and disclose clearly and unequivocally the reasoning followed by the institution which adopted it in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review.

In the case of a decision imposing fines on several undertakings for an infringement of Community competition rules, the scope of the duty to state reasons must be assessed inter alia in the light of the fact that the gravity of the infringement depends on a large number of factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, and no binding or exhaustive list of the criteria to be applied has been drawn up. The Commission has a discretion when fixing the amount of each fine, and cannot be required to apply a precise mathematical formula for that purpose.

It is certainly desirable, in order to enable undertakings to define their position with full knowledge of the facts, for them to be able to determine in detail, in accordance with such system as the Commission might consider appropriate, the method whereby the fine imposed upon them has been calculated, without their being obliged, in order to do so, to bring court proceedings against the decision.

However, such calculations do not constitute an additional and subsequent ground for the decision, but merely translate into figures the criteria set out in the decision which are capable of being quantified.

31Where an undertaking has acted in breach of Article 85(1) of the Treaty, it cannot escape being penalised altogether on the ground that another trader has not been fined, when that trader's circumstances are not even the subject of proceedings before the Court of First Instance.

32 The application of Article 3(1) of Regulation No 17 may comprise both a prohibition on continuing certain activities, practices or situations which have been found to be unlawful and a prohibition on adopting similar conduct in the future. Since Article 3(1) must be applied with reference to the infringement found, the Commission has the power to specify the extent of the obligations of the undertakings concerned in order to terminate it. Such obligations must not, however, exceed what is appropriate and necessary to attain the objective sought, namely restoration of compliance with the rules infringed.

Parties

In Joined Cases T-305/94, T-306/94, T-307/94, T-313/94, T-314/94, T-315/94, T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94,

Limburgse Vinyl Maatschappij NV, a company incorporated under Belgian law, established in Brussels, represented by Inne G.F. Cath, an advocate with right of audience before the Hoge Raad der Nederlanden (Supreme Court of the Netherlands), with an address for service in Luxembourg at the Chambers of Lambert Dupong, 4-6 Rue de la Boucherie,

Elf Atochem SA, a company incorporated under French law, established in Paris, represented by Xavier de Roux, Charles-Henri Léger and Jacques-Philippe Gunther, all of the Paris Bar, with an address for service in Luxembourg at the Chambers of Jacques Loesch, 11 Rue Goethe,

BASF AG, a company incorporated under German law, established in Ludwigshafen, Germany, represented by Ferdinand Hermanns, of the Düsseldorf Bar, with an address for service in Luxembourg at the Chambers of Jacques Loesch and Marc Wolters, 11 Rue Goethe,

Shell International Chemical Company Ltd, a company incorporated under English law, established in London, represented by Kenneth B. Parker QC, instructed by John W. Osborne, Solicitor, with an address for service in Luxembourg at the Chambers of Jean Hoss, 2 Place Winston Churchill,

DSM NV and DSM Kunststoffen BV, companies incorporated under Netherlands law, established in Heerlen, Netherlands, represented by Inne G.F. Cath, an advocate with a right of audience before the Hoge Raad der Nederlanden, with an address for service in Luxembourg at the Chambers of Lambert Dupong, 4-6 Rue de la Boucherie,

Wacker-Chemie GmbH, a company incorporated under German law, established in Munich, Germany,

Hoechst AG, a company incorporated under German law, established in Frankfurt-am-Main, Germany,

both represented by Hans Hellmann and Hans-Joachim Hellmann, Rechtsanwälte, Cologne, with an address for service in Luxembourg at the Chambers of Jacques Loesch and Marc Wolters, 11 Rue Goethe,

Société Artésienne de Vinyle, a company incorporated under French law, established in Paris, represented by Bernard van de Walle de Ghelcke, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Alex Schmitt, 7 Val Sainte-Croix,

Montedison SpA, a company incorporated under Italian law, established in Milan, Italy, represented by Giuseppe Celona and Giorgio Aghina, of the Milan Bar, and Piero Angelo Maria Ferrari, of the Rome Bar, with an address for service in Luxembourg at the Chambers of Georges Margue, 20 Rue Philippe II,

Imperial Chemical Industries plc, a company incorporated under English law, established in London, represented by David Vaughan QC and David Anderson, Barrister, instructed by Victor White and Richard Coles, Solicitors, with an address for service in Luxembourg at the Chambers of Lambert Dupong, 4-6 Rue de la Boucherie,

Hüls AG, a company incorporated under German law, established in Marl, Germany, represented initially by Hansjürgen Herrmann, Rechtsanwalt, Cologne, and subsequently by Frank Montag, Rechtsanwalt, Cologne, with an address for service in Luxembourg at the Chambers of Jacques Loesch, 11 Rue Goethe,

Enichem SpA, a company incorporated under Italian law, established in Milan, represented by Mario Siragusa, of the Rome Bar, and Francesca Maria Moretti, of the Bologna Bar, with an address for service in Luxembourg at the Chambers of Elvinger, Hoss and Prussen, 2 Place Winston Churchill,

applicants,

v

Commission of the European Communities, represented initially by Berend Jan Drijber, Julian Currall and Marc van der Woude, both of its Legal Service, acting as Agents, assisted by Éric Morgan de Rivery, of the Paris Bar, Alexander Böhlke, Rechtsanwalt, Frankfurt-am-Main, David Lloyd Jones, Barrister, Renzo Maria Morresi, of the Bologna Bar, and Nicholas Forwood QC, and subsequently by Julian Currall, also assisted by Marc van der Woude, of the Brussels Bar, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, a member of its Legal Service, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the annulment of Commission Decision 94/599/EC of 27 July 1994 relating to a proceeding pursuant to Article 85 of the EC Treaty (IV/31.865 - PVC) (OJ 1994 L 239, p. 14),

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

(Third Chamber, Extended Composition),

composed of: V. Tiili, President, K. Lenaerts and A. Potocki, Judges,

Registrar: J. Palacio González, Administrator,

having regard to the written procedure and further to the hearing from 9 to 12 February 1998,

gives the following

Judgment

Grounds

Facts

1 Following investigations conducted in the polypropylene sector on 13 and 14 October 1983 pursuant to Article 14 of Council Regulation No 17 of 6 February 1962 (First Regulation implementing Articles 85 and 86 of the Treaty, OJ, English Special Edition 1959-1962, p. 87), the Commission of the European Communities commenced an inquiry on polyvinylchloride (`PVC'). It undertook subsequently various investigations at the premises of the undertakings concerned and sent them several requests for information.

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

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

4 At the end of the proceeding the Commission adopted Decision 89/190/EEC of 21 December 1988 relating to a proceeding pursuant to Article 85 of the EEC Treaty (IV/31.865, PVC) (OJ 1989 L 74, p. 1). By that decision (hereinafter `the original decision' or `the 1988 decision'), the Commission penalised the following PVC producers for infringement of Article 85(1) of the Treaty: Atochem SA, BASF AG, DSM NV, Enichem SpA, Hoechst AG, Hüls AG, Imperial Chemical Industries plc, Limburgse Vinyl Maatschappij NV, Montedison SpA, Norsk Hydro AS, Société Artésienne de Vinyle, Shell International Chemical Company Ltd, Solvay et Cie and Wacker-Chemie GmbH.

5 All those undertakings except Solvay et Cie (`Solvay') brought actions to have that decision annulled by the Community judicature.

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

7 The cases, registered under case numbers T-79/89, T-84/89, T-85/89, T-86/89, T-89/89, T-91/89, T-92/89, T-94/89, T-96/89, T-98/89, T-102/89 and T-104/89, were joined for the purposes of the oral procedure and the judgment.

8 By judgment of 27 February 1992 (Joined Cases T-79/89, T-84/89, T-85/89, T-86/89, T-89/89, T-91/89, T-92/89, T-94/89, T-96/89, T-98/89, T-102/89 and T-104/89 BASF and Others v Commission [1992] ECR II-315), the Court of First Instance declared the 1988 decision non-existent.

9 On appeal by the Commission, the Court of Justice, by judgment of 15 June 1994 in Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555 (`the judgment of 15 June 1994'), set aside the judgment of the Court of First Instance and annulled the 1988 decision.

10 The Commission thereupon adopted a fresh decision on 27 July 1994 in relation to the producers who had been the subject of the original decision, with the exception, however, of Solvay and Norsk Hydro AS (`Norsk Hydro'), Commission Decision of 27 July 1994 relating to a proceeding pursuant to Article 85 of the EC Treaty (IV/31.865 - PVC) (OJ 1994 L 239, p. 14; `the Decision').

11 The Decision contains the following provisions:

`Article 1

BASF AG, DSM NV, Elf Atochem SA, Enichem SpA, Hoechst AG, Hüls AG, Imperial Chemical Industries plc, Limburgse Vinyl Maatschappij NV, Montedison SpA, Société Artésienne de Vinyle SA, Shell International Chemical [Company] Ltd and Wacker Chemie GmbH infringed Article 85 of the EC Treaty (together with Norsk Hydro ... and Solvay ...) by participating for the periods identified in this Decision in an agreement and/or concerted practice originating in about August 1980 by which the producers supplying PVC in the Community took part in regular meetings in order to fix target prices and target quotas, plan concerted initiatives to raise price levels and monitor the operation of the said collusive arrangements.

Article 2

The undertakings named in Article 1 which are still involved in the PVC sector in the Community (apart from Norsk Hydro and Solvay which are already the subject of a valid termination order) shall forthwith bring the said infringement to an end (if they have not already done so) and shall henceforth refrain in relation to their PVC operations from any agreement or concerted practice which may have the same or similar object or effect, including any exchange of information of the kind normally covered by business secrecy by which the participants are directly or indirectly informed of the output, deliveries, stock levels, selling prices, costs or investment plans of other individual producers, or by which they might be able to monitor adherence to any express or tacit agreement or to any concerted practice covering price or market-sharing inside the Community. Any scheme for the exchange of general information to which the producers subscribe concerning the PVC sector shall be so conducted as to exclude any information from which the behaviour of individual producers can be identified, and in particular the undertakings shall refrain from exchanging between themselves any additional information of competitive significance not covered by such a system.

Article 3

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

(i) BASF AG: a fine of ECU 1 500 000;

(ii) DSM NV: a fine of ECU 600 000;

(iii) Elf Atochem SA: a fine of ECU 3 200 000;

(iv) Enichem SpA: a fine of ECU 2 500 000;

(v) Hoechst AG: a fine of ECU 1 500 000;

(vi) Hüls AG: a fine of ECU 2 200 000;

(vii) Imperial Chemical Industries plc: a fine of ECU 2 500 000;

(viii) Limburgse Vinyl Maatschappij NV: a fine of ECU 750 000;

(ix) Montedison SpA: a fine of ECU 1 750 000;

(x) Société Artésienne de Vinyle SA: a fine of ECU 400 000;

(xi) Shell International Chemical Company Ltd: a fine of ECU 850 000;

(xii) Wacker Chemie GmbH: a fine of ECU 1 500 000.'

Procedure

12 By various applications lodged at the Registry of the Court of First Instance between 5 and 14 October 1994, Limburgse Vinyl Maatschappij NV (`LVM'), Elf Atochem SA (`Elf Atochem'), BASF AG (`BASF'), Shell International Chemical Company Ltd (`Shell'), DSM NV and DSM Kunststoffen BV (`DSM'), Wacker-Chemie GmbH (`Wacker'), Hoechst AG (`Hoechst'), Société Artésienne de Vinyle (`SAV'), Montedison SpA (`Montedison'), Imperial Chemical Industries plc (`ICI'), Hüls AG (`Hüls'), and Enichem SpA (`Enichem') brought the present actions.

13 Pursuant to Article 64 of the Rules of Procedure, a meeting between the members of the Third Chamber (Extended Composition) and the parties took place on 6 April 1995, at which the parties agreed that the written procedure should be suspended and that the oral procedure should be limited to examination of procedural submissions. They also agreed that Cases T-305/94, T-306/94, T-307/94, T-313/94, T-314/94, T-315/94, T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 should be joined.

14 Upon hearing the Report of the Judge Rapporteur, the Court of First Instance (Third Chamber, Extended Composition) decided to open the oral procedure, limited to examination of procedural submissions, without any preparatory inquiries or measures of organisation of procedure.

15 By order of the President of the Third Chamber (Extended Composition) of 25 April 1995 (not published in the ECR), Cases T-305/94, T-306/94, T-307/94, T-313/94, T-314/94, T-315/94, T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 were joined for the purposes of the oral procedure on account of the connection between them, pursuant to Article 50 of the Rules of Procedure.

16 The oral procedure took place on 13 and 14 June 1995.

17 By order of 14 July 1995 (not published in the ECR), the President of the Third Chamber (Extended Composition) ordered that the written procedure should be resumed and that the cases be disjoined.

18 The written procedure closed on 20 February 1996.

19 In the context of measures of organisation of procedure, the Court of First Instance (Third Chamber, Extended Composition) informed the parties by letter of 7 May 1997 of its decision to allow each of the parties access to the Commission's file on the matter which gave rise to the Decision, save for internal Commission documents and documents containing business secrets or other confidential information.

20 Having consulted the file in June and July 1997, all the applicants except for those in Cases T-315/94 and T-316/94 lodged observations at the Registry of the Court of First Instance in July and September 1997. The Commission lodged its observations in reply in December 1997.

21 By order of 22 January 1998, having heard the parties, the President of the Third Chamber (Extended Composition) of the Court of First Instance rejoined the present cases for the purposes of the oral procedure.

22 Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Third Chamber, Extended Composition) decided to open the oral procedure and adopted measures of organisation of procedure by asking the parties to reply to certain written questions and to produce certain documents. The parties complied with those requests.

23 The parties presented oral argument and replied to the questions of the Court of First Instance at the hearing held between 9 and 12 February 1998.

24 On that occasion, they stated that they had no objection to the cases being joined for the purposes of the judgment.

25 At the hearing the Court of First Instance was composed of V. Tiili, President, C.P. Briët, K. Lenaerts, A. Potocki and J.D. Cooke. Following the expiry of the term of office of Judge Briët on 17 September 1998, this judgment was deliberated by the three judges by whom it is signed, in accordance with Article 32(1) of the Rules of Procedure.

Forms of order sought

26 Each applicant claims that the Court should:

- annul the Decision in whole or in part;

- in the alternative, annul or reduce the fine imposed upon it;

- order the Commission to pay the costs.

27 In Cases T-315/94, T-316/94 and T-329/94, Wacker, Hoechst and Hüls also claim that the Court should:

- order that the report of the hearing officer be placed on the file and communicated to the applicant;

- order the transcript of the hearing, including the annexes, to be communicated to the applicant.

28 In addition, in Cases T-315/94 and T-329/94, Wacker and Hüls claim that the Court should:

- order the Commission to place before the Court of First Instance the opinion given by the Legal Service on the procedural questions connected with the Decision and have that opinion communicated to them.

29 In Cases T-315/94 and T-316/94, Wacker and Hoechst claim that the Court should:

- take into consideration the procedural file produced in Case T-92/89.

30 In Case T-325/94, Montedison also claims that the Court should:

- order the Commission to pay damages with interest on the basis of the costs connected with the lodging of the security and for all other costs connected with the Decision;

- place on the file in the present case the documents produced in Case T-104/89;

- hear as witnesses the managing director and the responsible manager of Montedison as of 1 November 1982.

31 The Commission claims in each of the cases that the Court should:

- dismiss the actions;

- order the applicants to pay the costs.

Admissibility of the pleas under Articles 44(1), 46(1) and 48(2) of the Rules of Procedure

32 In relation to several of the applicants' pleas in law, the Commission has raised objections of inadmissibility based on either Article 44(1)(c) or Article 48(2) of the Rules of Procedure. One of the applicants has also raised a plea of inadmissibility based on Article 46(1) of the Rules of Procedure. Each of these categories of objection will be examined separately.

I - The objections of inadmissibility based on Article 44(1)(c) of the Rules of Procedure

Arguments of the parties

33 The Commission states that in the reply Montedison makes a general reference to all the procedural pleas put forward by the parties in their joint submissions at the hearing on 13 and 14 June 1995. The texts of those submissions were not attached to its pleading because, it was alleged, the Court of First Instance was familiar with them.

34 The Commission also states that at the reply stage, and by way of introduction to the part of its pleading concerning procedural matters, Enichem lists all the procedural pleas put forward by the parties in their joint submissions at the hearing on 13 and 14 June 1995 and declares that it adopts them as its own. For that purpose, Enichem has annexed to its reply the record of the submissions of all the applicants' lawyers.

35 Such references, the Commission submits, do not comply with Article 44(1)(c) of the Rules of Procedure of the Court of First Instance (order of 29 November 1993 in Case T-56/92 Koelman v Commission [1993] ECR II-1267, paragraphs 21 to 23). The Court of First Instance cannot substitute itself for the applicant in attempting to seek and identify in the documents referred to the grounds on which it may consider the claims made in the application to be justified.

36 The Commission also submits that the pleas listed by Shell in the body of its reply and elaborated in the annexes thereto should be declared inadmissible and excluded from the oral procedure (Case C-347/88 Commission v Greece [1990] ECR I-4747, paragraph 29, Case C-43/90 Commission v Germany [1992] ECR I-1909, paragraph 8, Case T-37/91 ICI v Commission [1995] ECR II-1901, paragraph 46, and order of 28 April 1993 in Case T-85/92 de Hoe v Commission [1993] ECR II-523).

37 The Commission argues that any pleading must indicate clearly the matters of fact and of law applicable to the particular case and, apart from the application, must correspond to the preceding pleading. By referring to documents contained in an annex, submitted by other lawyers in other cases, the applicant compels the Court of First Instance to attempt itself to identify the matters on which the applicant intends to rely in support of its application. Moreover, the documents annexed are merely notes prepared by certain lawyers for the hearing on 13 and 14 June 1995 and do not necessarily correspond to what was actually pleaded, the transcript of the hearing being unavailable; the applicant is relying on only certain parts of the notes on the oral submissions of one of the lawyers, and some of those notes themselves refer to the arguments submitted by other parties in their oral and written pleadings.

38 Finally, the Commission observes that at the end of the oral procedure, which was the sole purpose for which the cases had been joined, the President of the Third Chamber, Extended Composition, of the Court of First Instance ordered the disjoinder of the cases.

Findings of the Court

39 Under Article 44(1)(c) of the Rules of Procedure, all applications must indicate the subject-matter of the proceedings and include a brief statement of the grounds relied on. The information given must be sufficiently clear and precise to enable the defendant to prepare its defence and the Court to give a ruling, if appropriate, without recourse to other information. In order to ensure legal certainty and the sound administration of justice, for an action to be admissible the essential facts and law on which it is based must be apparent from the text of the application itself, even if only stated briefly, provided the statement is coherent and comprehensible. Although specific points in the text of the application can be supported and completed by references to specific passages in the documents attached, a general reference to other documents cannot compensate for the lack of essential information in the application itself, even if those documents are attached to the application (see the order in Koelman, cited above, paragraph 21). Moreover, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental purpose (Case T-84/96 Cipeke v Commission [1997] ECR II-2081, paragraph 34).

40 That interpretation of Article 44(1)(c) of the Rules of Procedure also applies to the conditions for admissibility of a reply, which according to Article 47(1) of the Rules of Procedure is intended to supplement the application.

41 In this case, the Court notes that in their replies Shell, Montedison and Enichem make a general reference to the pleas and arguments put forward jointly by a number of applicants at the hearing before the Court of First Instance on 13 and 14 June 1995. That general reference to documents, even if annexed to the reply, cannot replace a statement of facts, pleas and arguments in the text of the reply itself.

42 The Court also notes that Enichem supplements its reply on specific points by references to documents annexed thereto. However, the references are to the annexed document generally and thus do not enable the Court of First Instance to identify precisely the arguments which it might regard as supplementing the pleas in the application.

43 In those circumstances, to the extent that reference is made therein to the joint submissions, the replies of Shell, Montedison and Enichem do not satisfy the requirements of Article 44(1)(c) of the Rules of Procedure and cannot therefore be considered.

II - The objection of inadmissibility based on Article 46(1) of the Rules of Procedure

Arguments of the parties

44 Hüls argues that it is inadmissible under Article 46(1)(b) of the Rules of Procedure for the Commission to refer to the Report for the Hearing in Case T-86/89 Hüls v Commission in order to reply to certain pleas put forward in the application (Joined Cases 19/63 and 65/63 Prakash v Commission [1965] ECR 533, at p. 546; Case 4/69 Lütticke v Commission [1971] ECR 325, paragraph 2; Commission v Germany, cited above, paragraphs 7 and 8; Case T-82/89 Marcato v Commission [1990] ECR II-735, paragraph 22; ICI, paragraph 47).

45 The Commission considers that the manner of citation used in the defence does not constitute a general reference within the meaning of the case-law relied on by the applicant. The latter has in fact misunderstood the function of an annex, which is to allow a formal reference without unnecessary repetition. Moreover, the Commission considers that reference to another action involving the same parties in relation to the same set of circumstances is admissible (ICI, paragraph 47).

Findings of the Court

46 Under Article 46(1)(b) of the Rules of Procedure the defence must contain the arguments of fact and law relied on. The arguments relied on by the defendant must be set out sufficiently clearly and precisely, even if briefly, in the text of the defence itself in order to enable the applicant to prepare its reply and the Court to give a ruling, if appropriate, without recourse to other information.

47 In this case, under the heading `Pleas on the substance', the Commission confines itself to stating in the defence that `[it] considers itself obliged to introduce into these proceedings the line of argument already developed [at the time of the actions challenging the 1988 decision]. Rather than reproducing the defence word for word, it considers that at the current stage of the proceedings it is useful to refer to the statement it made in Case T-86/89, as summarised in the Report for the Hearing'. The Commission then lists the corresponding headings of the Report for the Hearing, refers to pages therein and makes observations intended to supplement the pleas to which it refers.

48 The Court finds that the arguments of fact and law relied on by the defendant under the heading `Pleas on the substance' are set out merely in the form of headings and therefore cannot be regarded as satisfying the conditions as to clarity and precision required for the purposes of admissibility. Accordingly those matters of fact and law must be declared inadmissible.

III - The objections of inadmissibility based on Article 48(2) of the Rules of Procedure

Arguments of the parties

49 The Commission argues that any plea which is introduced for the first time at the reply stage, and which cannot be regarded as being based on matters of law or of fact which came to light in the course of the procedure, is a new plea which must be declared inadmissible under Article 48(2) of the Rules of Procedure of the Court of First Instance (Joined Cases T-68/89, T-77/89 and T-78/89 SIV and Others v Commission [1992] ECR II-1403, paragraph 82; Case T-16/91 Rendo v Commission [1992] ECR II-2417, paragraph 131; Case T-29/92 SPO v Commission [1995] ECR II-289, paragraph 409).

50 In this case, it argues, several pleas raised by LVM, BASF, DSM and ICI are inadmissible by virtue of that rule.

51 The Commission maintains that the order of the President of the Third Chamber (Extended Composition) of the Court of First Instance of 14 July 1995 on the resumption of the written procedure and the disjoinder of the cases cannot be interpreted as authorising a party to raise all the procedural pleas, including those formulated in their application only by other applicants.

52 Moreover, most of the annexes to Hüls's reply should be disregarded because they are not drafted in the language of the case, contrary to Article 35(3) of the Rules of Procedure.

Findings of the Court

53 Under Article 48(2) of the Rules of Procedure no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or of fact which come to light in the course of the procedure.

54 BASF has raised for the first time in its reply pleas based on infringement of the non bis in idem principle, infringement of the Agreement on the European Economic Area (`the EEA Agreement'), infringement of the Commission's Rules of Procedure applicable at the time, limitation, infringement of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (`the ECHR') and also a plea alleging infringement of the duty to hear the applicant before the decision to depart from the procedure laid down by Regulation No 17 and Regulation No 99/63.

55 ICI raises in its reply a plea alleging infringement of the Commission's Rules of Procedure, inasmuch as the Commission's Legal Service was not consulted before the Decision was adopted. It maintains that that failure to consult the Legal Service, which was revealed in the Report for the Hearing drawn up in Case T-307/94 before the hearing of June 1995, constitutes a new fact which came to light in the course of the procedure. That plea cannot be accepted. Suffice it to say that the Report for the Hearing does not state that the Legal Service was not consulted at all but that `there is no opinion of the Legal Service as to whether a fresh decision regarding the PVC producers could be adopted on the basis of the administrative procedure which preceded the adoption of the decision of 21 December 1988' [`Die Kommission behauptet, es gebe kein Gutachten des Juristischen Dienstes zu der Frage, ob eine neue Entscheidung gegenüber den PVC-Herstellern auf der Grundlage des Verwaltungsverfahrens erlassen werden könne, das vor dem Erlaß der Entscheidung vom 21 Dezember 1988 durchgeführt worden sei']. There is thus no basis for holding that that extract from the Report for the Hearing in Case T-307/94 constitutes a new fact indicating that the adoption of the Decision was not preceded by an opinion of the Legal Service.

56 Moreover, in so far as ICI's argument is to be understood as maintaining, in the context of the same plea and by reference to the text of one of the joint submissions annexed to its reply, that the Commission's Rules of Procedure in force at the time the Decision was adopted were illegal, the Court finds that that plea of illegality is raised for the first time in the reply, although there was nothing to prevent the applicant from raising it in the application initiating proceedings.

57 Hüls cites in, and annexes to, its reply the notes recording the submissions on the subjects raised jointly at the hearing on 13 and 14 June 1995. The subjects dealt with in those notes, in so far as they are set out in the form of an argument elaborated in the reply, concern pleas which were raised by the applicant in the application initiating proceedings, save for the plea alleging lack of participation by the Surveillance Authority of the European Free Trade Association (`EFTA'), which was thus raised for the first time in the reply.

58 The Court also finds that the record of joint submissions annexed to Hüls's reply are not drafted in the language of the case chosen by the applicant and that the latter has not supplied translations of extracts from those lengthy documents, contrary to Article 35(3) of the Rules of Procedure. Nevertheless, in the very particular circumstances of this case and bearing in mind the opportunity granted by the Court of First Instance of using any one of the languages of the case in pleading certain common subjects at the hearing on 13 and 14 June 1995, the Court considers, notwithstanding the disjoinder of the cases after that hearing, that not to accept those annexes in a language which is not the language of the case chosen by the applicant would be unduly formalistic. The annexes to Hüls's reply will therefore be accepted as they stand.

59 LVM and DSM argue in their replies, in support of a plea alleging infringement of the principle of proportionality already set out in their application, that the Commission failed to comply with the duty to state reasons under Article 190 of the EC Treaty. The Court finds that, in view of the terms of that claim in the context of the plea in question, that allegation is in no way independent of the plea in respect of which it is relied on. It cannot therefore be regarded as a separate plea raised for the first time in the reply.

60 Finally, it should be remembered that under Article 113 of the Rules of Procedure the Court of First Instance may of its own motion consider whether there is any absolute bar to proceeding with an action.

61 In that respect, the Court observes that Elf Atochem argued for the first time in its reply that the Commission had disregarded the duty of cooperation with the EFTA Surveillance Authority.

62 As regards SAV, that company relies in its application initiating proceedings upon a plea alleging `infringement of the principles of sound administration and the rights of the defence for failing to initiate the proceeding within a reasonable period'. In the reply it adds, under the plea headed `Infringement of the principles of sound administration of justice and the rights of the defence', that the Commission did not take account of the hearing which took place in September 1988 because it had no time to examine the minutes of the hearing before adopting the 1988 decision. The latter argument must be regarded as an entirely separate plea since it does not in any way refer to the initiation of the proceeding within a reasonable period. That plea, which is not linked to any of those set out in the application, must therefore be regarded as having been raised for the first time at the reply stage.

63 No new fact came to light in the course of the procedure to justify the late submission of pleas by Elf Atochem and SAV, so that they could have raised those pleas in the applications initiating proceedings. Therefore, in accordance with Article 48(2), they cannot raise them at the reply stage.

64 In the light of the above, the pleas raised by Elf Atochem, BASF, SAV, ICI and Hüls, set out for the first time at the reply stage and which are not based on matters of law or of fact coming to light in the course of the procedure, must be declared inadmissible.

The claims for annulment of the Decision

I - The pleas alleging defects of form and procedure

65 The various pleas by the applicants alleging defects of form and procedure fall into four main categories. First, they challenge the Commission's appreciation of the scope of the judgment of 15 June 1994 annulling the 1988 decision and the consequences it drew therefrom (A). They then maintain that there were irregularities in the adoption and authentication of the Decision (B). They also argue that the procedure prior to the adoption of the 1988 decision is vitiated by irregularities (C). Finally, they argue that insufficient reasons were stated for the Decision in relation to certain questions falling within the three preceding categories (D).

A - The effects of the judgment of 15 June 1994 annulling the 1988 decision

66 The applicants' pleas and arguments centre on three separate points. First, some of the applicants maintain that the judgment of 15 June 1994 prevented the Commission from adopting a new decision. Secondly, a number of applicants argue that by annulling the 1988 decision the judgment of 15 June 1994 had the retroactive effect of nullifying the preparatory acts which led to that decision being adopted in relation to all the undertakings to which it was addressed. Thirdly, some applicants consider that, although the Commission could adopt a new decision in order to comply with the judgment of 15 June 1994, it should have observed certain procedural requirements.

1. The power of the Commission to adopt a new decision after the judgment of 15 June 1994

67 The applicants' arguments may be grouped into three categories. In the first, it is maintained that following the judgment of 15 June 1994 the Commission could not adopt a new decision in `the PVC case'. The second concerns pleas based on the passage of time, according to which the Commission could no longer exercise its power to adopt the Decision. Finally, the third category concerns pleas based on the Commission's alleged abuse of its discretion.

68 Each of those categories will be examined separately.

(a) The pleas alleging that it was not possible for the Commission to adopt the Decision

69 In support of their claims that the Commission could not adopt the Decision, the applicants rely on two pleas.

70 The first plea alleges infringement of the principle of res judicata. The second alleges infringement of the principle non bis in idem.

Infringement of the principle of res judicata

- Arguments of the parties

71 LVM, DSM, ICI and Enichem argue that the Commission could not adopt the Decision without infringing the principle of res judicata as regards the judgment of 15 June 1994.

72 LVM and DSM argue that the distinction between formal and substantive defects affecting the annulled decision has no legal foundation either in legislation or in case-law. Neither Article 174 of the Treaty nor the judgment in Joined Cases T-80/89, T-81/89, T-83/89, T-87/89, T-88/89, T-90/89, T-93/89, T-95/89, T-97/89, T-99/89, T-100/89, T-101/89, T-103/89, T-105/89, T-107/89 and T-112/89 BASF and Others v Commission [1995] ECR II-729, paragraph 78) drew such a distinction. Being silent in that respect, the judgment of 15 June 1994 should be interpreted as signifying that the matter was finally determined (Case 138/79 Roquette Frères v Council [1980] ECR 3333, paragraph 37; Case 108/81 Amylum v Council [1982] ECR 3107, paragraph 5; Opinion of Advocate General Reischl in the latter case, pp. 3139, 3151 and 3152). In the applicants' submission, that impression is confirmed by the fact that, having set aside the judgment of the Court of First Instance and given that the state of the proceedings so permitted, the Court of Justice dealt with the case itself.

73 For its part, Enichem maintains that, by its judgment of 15 June 1994, the Court of Justice intended to conclude the proceedings in respect of the PVC producers definitively by using its powers under the second sentence of the first paragraph of Article 54 of the EC Statute of the Court of Justice. Although it examined only some of the pleas, the Court thus ruled on the dispute as a whole, so that all aspects of the dispute are covered by the principle of res judicata.

74 The Commission's approach would lead in practice to according a higher status to substantive pleas than to procedural ones, which would thus be regarded as merely ancillary. Any procedural irregularity could thus be easily corrected. As a consequence, reliance on procedural defects before the Community judicature would be ineffective and the efforts made in this case before the Court of First Instance, and subsequently the Court of Justice, would have been in vain.

75 In the Commission's view, the principle of res judicata covers only matters on which the Court of Justice has already given a ruling. In this case, the only ground for the annulment of the 1988 decision which was upheld in the Court's judgment of 15 June 1994 consisted in the absence of due authentication, with the result, the Commission submits, that only the Court's assessment of the formal defects has acquired the force of res judicata. The other procedural pleas and the substantive pleas were thus not examined by the Court.

76 The Commission adds that, after the annulment of the 1988 decision, there was no rule which could have permitted the Court of Justice to refer the matter back to the Court of First Instance.

- Findings of the Court

77 The principle of res judicata extends only to the matters of fact and law actually or necessarily settled by a judicial decision (Case C-281/89 Italy v Commission [1991] ECR I-347, paragraph 14; order of 28 November 1996 in Case C-277/95 P Lenz v Commission [1996] ECR I-6109, paragraph 50).

78 In this case, the Court of Justice found in its judgment of 15 June 1994 that the Court of First Instance had erred in law by declaring Decision 89/190 non-existent and held that the judgment under appeal before it must be set aside (paragraphs 53 and 54). In those circumstances, in accordance with the second sentence of the first paragraph of Article 54 of the EEC Statute of the Court of Justice, the Court decided to give final judgment in the matter, given that the state of the proceedings so permitted (paragraph 55).

79 As a consequence, the Court summarised the applicants' pleas in their actions before the Court of First Instance for the annulment of the 1988 decision in the following terms: `The pre-litigation procedure was defective in a number of ways; the contested decision was not reasoned or was insufficiently reasoned; the rights of the defence were not observed; the evidential basis adopted by the Commission was questionable; the contested decision was contrary to Article 85 of the Treaty and to general principles of Community law; the decision was in breach of limitation rules; it was vitiated by misuse of power; and the fines imposed were unlawful' (paragraph 56).

80 The Court then found that `in support, in particular, of the plea that the contested decision was not reasoned or was insufficiently reasoned', a number of applicants argued `in substance, that the reasons for the decision which had been notified to them probably differed on several points, some vital, from the decision adopted by the Commissioners at their meeting on 21 December 1988' (paragraph 57). The Court also indicated that: `From the Commission's arguments in its defence some applicants also concluded that the decision had not been adopted in two of the languages which were binding, namely Dutch and Italian, since only drafts in English, French and German had been submitted to the college of Commissioners' (paragraph 58). It then went on to state: `In the final stage of their argument, the applicant companies contended that Article 12 of the Commission's Rules of Procedure had not been observed' (paragraph 59). Finally, it turned to examine `the substance of the plea' (paragraph 61).

81 Having held that the Commission had infringed the first paragraph of Article 12 of its Rules of Procedure by failing to carry out the authentication of the 1988 decision in accordance with that article, the Court concluded: `The decision must therefore be annulled for infringement of essential procedural requirements without it being necessary to examine the other pleas raised by the applicants' (paragraph 78).

82 It follows that the judgment of 15 June 1994 did not actually or necessarily settle either the other procedural pleas of the applicants before the Court of First Instance or the substantive pleas, or, finally, the pleas in the alternative regarding the amount of the fines.

83 Moreover, according to the first paragraph of Article 54 of the Statute of the Court of Justice `if the appeal is well founded, the Court of Justice shall quash the decision of the Court of First Instance. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Court of First Instance for judgment'.

84 The second sentence of that provision does not mean that where the Court itself gives final judgment in the dispute by accepting one or more pleas raised by the applicants it automatically settles all the points of fact and law raised by the latter in the context of the case. To follow Enichem's argument would amount to denying that res judicata has legal force only in relation to those points of fact and law which were actually or necessarily determined.

85 In the light of the above, the plea must be rejected.

Infringement of the non bis in idem principle

- Arguments of the parties

86 LVM, DSM, Montedison and ICI contend that the Commission infringed the non bis in idem principle by adopting a new decision after the Court had annulled the 1988 decision.

87 LVM, DSM and ICI point out that the Community judicature is under a duty to ensure compliance with general principles of law, including the non bis in idem principle (Joined Cases 18/65 and 35/65 Gutmann v Commission [1966] ECR 103 (Gutmann I); Joined Cases 18/65 and 35/65 Gutmann v Commission [1967] ECR 61 (Gutmann II)), which is also set out in Protocol No 7 to the ECHR and in Article 14(7) of the International Covenant on Civil and Political Rights signed in New York on 16 March 1966.

88 In the submission of LVM and DSM, both aspects of that principle were infringed by the Commission: in the first place, it imposed a penalty twice in respect of the same offence; secondly, it initiated proceedings for infringement twice - even if, in the second case, they were was limited to the adoption and notification of the Decision - in respect of the same set of facts (Gutmann I and II, cited above; Opinion of Advocate General Mayras in Case 7/72 Boehringer Mannheim v Commission [1972] ECR 1281 (Boehringer II), at p. 1294).

89 In establishing whether there has been an infringement of the non bis in idem principle, the sole determining factor is whether the facts alleged are identical (Boehringer II, paragraph 6), as in this case they are. The fact that the original decision was annulled (thereby eliminating the legal effects of the infringement proceedings but not the fact that they were brought, an infringement found and a fine imposed) and the principle of res judicata are not relevant in this respect.

90 ICI maintains that the judgment of 15 June 1994 is binding and final, which means that it has acquired the force of res judicata (Article 65 of the Rules of Procedure of the Court of Justice), the Court not having referred the case back to the Court of First Instance. Since the whole of the 1988 decision was annulled, not merely one of its elements, and the judgment of the Court thus constituted a final acquittal, the Commission's adoption of the same decision, based on the same matters of fact and of law, is contrary to the principle of non bis in idem. Finally, ICI observes that in its judgment of 15 June 1994 the Court did not require the Commission to adopt a new decision (see, a contrario, Case 17/74 Transocean Marine Paint v Commission [1974] ECR 1063, paragraph 22).

91 The Commission begins by pointing out that the argument of LVM, DSM and ICI under this plea contradicts their statement that, on account of its annulment ex tunc, the 1988 decision never existed.

92 It then observes that the relevance of the non bis in idem principle has been recognised by the Court of Justice in Community competition law (Boehringer II), so that the applicants' reliance on the ECHR and the International Covenant on Civil and Political Rights is otiose.

93 The applicants' argument is unfounded in any event, since following the annulment of the 1988 decision by the Court of Justice the Decision must be regarded as the first decision penalising PVC companies for breach of Article 85 of the Treaty. The companies did not have two fines imposed on them, either in law or in fact.

94 The Commission adds that the non bis in idem rule applies only to the imposition of penalties, and is therefore not to be confused with the principle of res judicata.

- Findings of the Court

95 The applicants allege that by adopting the Decision the Commission infringed the general legal principle of non bis in idem, which prohibits, first, the imposition of two penalties for the same offence and, secondly, the initiation of proceedings for infringement twice in respect of the same set of facts.

96 In the particular context of the present plea the Court considers that the Commission cannot bring proceedings against an undertaking under Regulation No 17 and Regulation No 99/63 for infringement of Community competition rules, or penalise it by the imposition of a fine, for anti-competitive conduct which the Court of First Instance or the Court of Justice has already found to be either proven or unproven by the Commission in relation to that undertaking.

97 In this case the first point to note is that the Court of Justice annulled the 1988 decision by the judgment of 15 June 1994. Consequently, the Commission's adoption of the Decision after that annulment did not result in the applicants' incurring a penalty twice in respect of the same offence.

98 Secondly, when the Court of Justice annulled the 1988 decision in its judgment of 15 June 1994 it did not rule on any of the substantive pleas raised by the applicants (see paragraph 82 above). Consequently, by adopting the Decision the Commission was merely remedying the formal defect found by the Court. It follows that the Commission did not take action against the applicants twice in relation to the same set of facts.

99 The plea must therefore be rejected.

(b) The pleas based on the passage of time

100 In support of their claims that the Decision should be annulled, a number of applicants raise various pleas based on the passage of time. First, the Commission is alleged to have infringed the principle that it should take a decision within a reasonable time. Secondly, it is alleged to have committed an abuse of rights. Finally, the applicants argue that it has disregarded the principles concerning the right to a fair hearing. Because it makes a common answer to those pleas, the Commission's argument will be set out in full after the arguments of the applicants.

Arguments of the parties

- The plea alleging infringement of the principle that the Commission should take a decision within a reasonable time

101 LVM, DSM and ICI argue that undertakings concerned by proceedings under Article 85 of the Treaty have a right to have their case decided by the Commission within a reasonable time. They maintain that that right is established in Community law (see, in particular, Case 223/85 RSV v Commission [1987] ECR 4617, paragraph 14) and is independent of the limitation rules set out in Council Regulation (EEC) No 2988/74 of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ 1974 L 319, p. 1).

102 Moreover, Article 6(1) of the ECHR requires that the merits of any accusation in a criminal matter be determined within a reasonable time in order to avoid leaving the defendant for too long uncertain as to his legal position.

103 LVM and DSM maintain that the date from which the reasonable period starts to run is that of any action for the purpose of preliminary investigation within the meaning of Article 2 of Regulation No 2988/74 (judgments of the European Court of Human Rights of 15 July 1982 in Eckle v Germany, Series A, No 51, paragraph 73; of 10 December 1982 in Foti v Italy, Series A, No 56, paragraph 52; and of 10 December 1982 in Corigliano v Italy, Series A, No 57, paragraph 34). The end of the period, they submit, corresponds to the date of adoption of the original decision.

104 In this case, the applicants argue, the period started to run in December 1983, the date of the Commission's investigation, and ended in December 1988, thus covering a period of five years, within which the Commission remained inactive from April 1984 until January 1987.

105 Under the ECHR, a reasonable period cannot exceed two years, save in special circumstances (judgment of the European Court of Human Rights of 28 June 1978 in König v Germany, Series A, No 27, paragraphs 98 and 99). The mere fact that a matter falls within the area of competition law does not constitute special circumstances.

106 The applicants submit, moreover, that disregard of the duty to act within a reasonable time in adopting the 1988 decision, and a fortiori the Decision, gave them a legitimate expectation that the investigation would not be followed up.

107 ICI considers that the delay in question falls into two parts: as regards the period of investigation, the Commission took no action between 5 June 1984, the date on which ICI responded to a decision under Article 11(5) of Regulation No 17, and January 1987, when the Commission made investigations at the premises of other PVC producers. It maintains that that period was unreasonable (RSV v Commission, cited above; Joined Cases T-163/94 and T-165/94 NTN and Koyo Seiko v Council [1995] ECR II-1381; Case T-95/94 Sytraval and Brink's France v Commission [1995] ECR II-2651).

108 As for the delay caused by the litigation, that is to say approximately five years, ICI maintains that the Commission was responsible for that in view of the procedural infringements which it was found to have committed.

109 LVM, DSM and ICI conclude that, having exceeded the reasonable period, the Commission had no further power to adopt the 1988 decision and, a fortiori, the Decision. The latter should therefore be annulled for lack of power of the Commission (Case 344/85 Ferriere San Carlo v Commission [1987] ECR 4435; RSV v Commission, cited above).

- Abuse of rights

110 Wacker and Hoechst maintain that, apart from the applicability of limitation rules, the lengthy period between 1983 and 1987, in which the Commission remained inactive, and between the beginning of the alleged infringement and the date on which the Decision was adopted, a period of 14 years, constitute an abuse of rights. That delay is solely attributable to the Commission.

- The plea alleging infringement of the principles governing the right to a fair hearing

111 Hüls and Enichem argue that the Commission has infringed the principles governing the right to a fair hearing.

112 In Enichem's submission, the right to a fair hearing has been infringed owing to the length of time which elapsed between the first investigations and the date on which the Decision was adopted. As a result, the parties were placed in a most difficult and unpleasant situtation owing to the impossibility of reconstituting the facts with certainty.

113 Hüls maintains that the practice followed by the Commission is not compatible with the rules governing the right to a fair hearing.

114 First, although it knew of the alleged infringement by 1983 at the latest, the Commission did not carry out an investigation at Hüls's premises until September 1987. Such delay in initiating the procedure adversely affected Hüls's opportunities of defending itself and led de facto to a reversal of the burden of proof to its detriment. That applies even more strongly as regards 1994. Moreover, the accumulated delay should be reflected in the level of the fine (Joined Cases 6/73 and 7/73 Istituto Chemioterapico Italiano and Commercial Solvents v Commission [1974] ECR 223).

115 Secondly, it maintains that the principle of laches is a fundamental element of the relevant Community law (Case 48/69 ICI v Commission [1972] ECR 619, paragraph 49; Case 374/87 Orkem v Commission [1989] ECR 3283, paragraph 30; see also Article 6 of the ECHR and the decision of the European Commission of Human Rights of 9 February 1990 in Melchers & Co. v Germany, App. 13258/87). Regulation No 2988/74 cannot, in Hüls's submission, have exhausted the issue; in the event of conflict, the principle of laches, as a general principle of Community law, must necessarily take precedence over the regulation; it means that the Commission could not adopt in 1994 a decision based on facts dating back nearly fifteen years.

116 The Commission states at the outset that it does not dispute the existence in Community law of a general principle, based on the requirements of legal certainty and sound administration, requiring an administrative authority to exercise its powers within certain time-limits (Case 45/69 Boehringer Mannheim v Commission [1970] ECR 769, (Boehringer I), paragraph 6.

117 However, it considers that Regulation No 2988/74 meets that objective of legal certainty by enabling the Commission and economic operators to know in advance the time-limits within which the Commission may act for the purpose of finding an infringement of Community competition rules.

118 The regulation precludes any reference to the separate legal tests of undue delay, an unreasonable period, abuse of rights, denial of a fair hearing, or laches. Moreover, such tests would lead only to confusion and legal uncertainty, since they are not established in written rules drawn up in advance (Boehringer I, paragraph 47) and are based on a vague and subjective concept.

119 In reply to the arguments of LVM and DSM, the Commission submits that the regulation makes the application of Article 6 of the ECHR to the legal position of those undertakings equally irrelevant. Even if the ECHR were relevant, the case-law cited by those applicants is not, the Commission submits, since it concerns the concept of a reasonable period in the context of criminal cases involving natural persons and not cases concerning economic law applied to legal persons. In the latter context, where the facts are complex, the two-year period suggested by LVM and DSM would be clearly inadequate, as the duration of proceedings in that area before the Court of First Instance or the Court of Justice demonstrates. Finally, and still assuming the reference to Article 6 of the ECHR to be relevant, the reasonable period cannot, in the Commission's submission, start to run until after notification of the statement of objections; measures of inquiry, such as investigations and requests for information, are merely intended to elucidate the facts and do not constitute charges. In this case, the 1988 decision was adopted a few months after notification of the statement of objections. Therefore, contrary to the argument of LVM and DSM, the Commission cannot be accused of passivity giving rise to a legitimate expectation as to the outcome of the administrative procedure.

Findings of the Court

120 The Community judicature has consistently held that fundamental rights form an integral part of the general principles of Community law whose observance it ensures (see, in particular, Opinion 2/94 [1996] ECR I-1759, paragraph 33; Case C-299/95 Kremzow v Austria [1997] ECR I-2629, paragraph 14). For that purpose, the Court of Justice and the Court of First Instance rely on the constitutional traditions common to the Member States and the guidelines supplied by international treaties and conventions on the protection of human rights on which the Member States have collaborated or to which they are signatories. The ECHR has special significance in that respect (Case 222/84 Johnston v Royal Ulster Constabulary [1986] ECR 1651, paragraph 18; Kremzow, paragraph 14). Moreover, Article F.2 of the Treaty on European Union states that `[t]he Union shall respect fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, as general principles of Community law'.

121 It is therefore necessary to examine whether in the light of those considerations the Commission has infringed the general principle of Community law that decisions following administrative proceedings relating to competition policy must be adopted within a reasonable time (Joined Cases T-213/95 and T-18/96 SCK and FNK v Commission [1997] ECR II-1739, paragraph 56).

122 Infringement of that principle, if established, would justify the annulment of the Decision however only in so far as it also constituted an infringement of the rights of defence of the undertakings concerned. Where it has not been established that the undue delay has adversely affected the ability of the undertakings concerned to defend themselves effectively, failure to comply with the principle that the Commission must act within a reasonable time cannot affect the validity of the administrative procedure and can therefore be regarded only as a cause of damage capable of being relied on before the Community judicature in the context of an action based on Article 178 and the second paragraph of Article 215 of the Treaty.

123 In this case, the administrative procedure before the Commission lasted for a total of some 62 months. The period during which the Community judicature examined the legality of the 1988 decision and the validity of the judgment of the Court of First Instance cannot be taken into account in determining the duration of the procedure before the Commission.

124 In order to determine whether the administrative procedure before the Commission was reasonable, a distinction must be made between the procedural stage opening with the November 1983 investigations in the PVC sector, based on Article 14 of Regulation No 17, and the procedural stage which started on the date of receipt of notification of the statement of objections by the undertakings concerned. Whether the time taken for each of those two stages was reasonable will be assessed separately.

125 The first period of 52 months elapsed between the first investigations carried out in November 1983 and the initiation of the procedure by the Commission in March 1988 on the basis of Article 9(3) of Regulation No 17, pursuant to Article 3 of that regulation.

126 Whether the time taken for a procedural stage is reasonable must be assessed in relation to the individual circumstances of each case, and in particular its context, the conduct of the parties during the procedure, what is at stake for the various undertakings concerned and its complexity.

127 In the light of all the information on the file, the Court considers that in the particular cases submitted to it for review the length of that inquiry procedure was reasonable.

128 The facts which had to be elucidated by the Commission were highly complex owing to the type of conduct in question and its range across the geographical market concerned, covering the whole area of activity in the common market of the principal PVC producers.

129 Another factor contributing to the difficulty in establishing the facts was the confused mass of documents collected by the Commission. The documents obtained from its investigations at the premises of various petrochemical product manufacturers during the period concerned and the replies of the latter to the questions put by the Commission under Article 11 of Regulation No 17 constituted a particularly bulky file. Moreover, amongst the myriad documents obtained during the administrative procedure, the Commission had to distinguish between those belonging to the PVC file and those belonging to the file investigated in parallel in the neighbouring PEBD sector, itself the subject, like other thermoplastic products at the same period, of an investigation and a procedure for determining infringements imputed to undertakings amongst which many are also parties to this case. It should also be noted that the file of the case which led to the Decision contained, on a first administrative numbering, a series of documents comprising 1072 pages, and, on another numbering, more than 5000 pages, excluding internal Commission documents.

130 Finally, the complexity of the facts to be elucidated arose from the difficulty of establishing proof of the participation of undertakings in the alleged concerted practice and from the number of undertakings involved. On that point, the Decision states that `seventeen undertakings took part in the infringement during the period covered ...' (point 2, second subparagraph, of the Decision) and that fourteen undertakings had been addressees of the original decision.

131 The second period elapsed between notification of the statement of objections and the adoption of the Decision on 27 July 1994.

132 Whether the time taken for that procedural stage was reasonable must also be assessed in the light of the criteria stated above (paragraph 126), and in particular in the light of what was at stake for the undertakings involved. That criterion is of particular importance in deciding whether this stage of the procedure for establishing an infringement of the competition rules was reasonable. First, the notification of the statement of objections in a procedure for establishing an infringement presupposes the initiation of the procedure under Article 3 of Regulation No 17. By initiating that procedure, the Commission evidences its intention to proceed to a decision finding an infringement (see, to that effect, Case 48/72 Brasserie de Haecht v Wilkin Janssen [1973] ECR 77, paragraph 16). Secondly, it is only on receipt of the statement of objections that an undertaking may take cognisance of the subject-matter of the procedure which is initiated against it and of the conduct of which it is accused by the Commission. Undertakings thus have a specific interest in that second stage of the procedure being conducted with particular diligence by the Commission, without, however, affecting their defence rights.

133 In this case, that second procedural stage before the Commission lasted 10 months. That is not sufficient to justify a complaint of undue delay. The objections were notified to the undertakings concerned at the beginning of April 1988. The undertakings replied to the statement of objections in June 1988. Apart from Shell, which did not so request, the undertakings to which the statement of objections was addressed were heard between 5 and 8 September 1988 and on 19 September 1988. The Advisory Committee on Restrictive Practices and Dominant Positions delivered its opinion on the preliminary draft Commission decision on 1 December 1988, and the Commission adopted its original decision 20 days later. The Decision itself was adopted 42 days after delivery of the judgment of 15 June 1994.

134 The Court therefore considers that the original decision, and, after the latter's annulment by the Court of Justice, the Decision, were adopted within a reasonable time after notification of the statement of objections.

135 In the light of the above considerations, the Court finds that in the administrative procedure prior to the adoption of the Decision the Commission acted consistently with the principle that it must act within a reasonable time. The defence rights of the undertakings concerned were not therefore infringed by lapse of time.

136 The pleas based on lapse of time must therefore be rejected.

(c) The pleas based on the Commission's allege