Case T-66/01

Imperial Chemical Industries Ltd

v

European Commission

(Competition – Abuse of dominant position – Market for soda ash in the United Kingdom – Decision finding an infringement of Article 82 EC – Commission’s power to impose a fine or sanction – Reasonable time – Essential procedural requirements – Res judicata – Existence of the dominant position – Abuse of the dominant position – Effect on trade between Member States – Fine – Gravity and duration of the infringement – Mitigating circumstances)

Summary of the Judgment

1. Competition – Administrative procedure – Limitation period in proceedings – Suspension

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

2. Community law – Principles – Duty to act within a reasonable time – Scope – Competition – Administrative procedure – Judicial proceedings – Distinction for the purposes of assessing whether action has been taken within a reasonable time

(Council Regulation No 17)

3. Competition – Administrative procedure – Duties of the Commission – Duty to act within a reasonable time

(Council Regulation No 17)

4. Procedure – Duration of proceedings before the General Court – Reasonable time – Criteria for assessment

5. Community law – Principles – Rights of the defence – Scope – Competition – Administrative procedure – Scope of the principle after the annulment of the Commission’s first decision

(Arts 81 EC, 82 EC and 233 EC; Council Regulation No 17)

6. Commission – Principle of collegiality – Scope – Competition decision

7. Actions for annulment – Judgment annulling a measure – Scope – Force of res judicata

8. Actions for annulment – Judgment annulling a measure – Effects

(Arts 82 EC, 230 EC and 233 EC)

9. Competition – Dominant position – Holding of a very large market share an indicator

(Art. 82 EC)

10. Competition – Dominant position – Abuse – Rebates having a foreclosure effect on the market – Fidelity rebate

(Art. 82 EC)

11. Competition – Dominant position – Abuse – Quantity rebate – Lawfulness – Conditions – Abusive nature of the rebate system

(Art. 82 EC)

12. Competition – Dominant position – Abuse – Exclusive supply contracts – Fidelity rebates

(Art. 82 EC)

13. Competition – Fines – Amount – Determination – Discretion of the Commission

(Arts 81 EC and 82 EC; Council Regulation No 2988/74)

14. Competition – Administrative procedure – Commission decision – Decision finding an infringement and imposing a fine – Annulled on account of a procedural defect

(Council Regulation No 17)

15. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Particularly serious infringements

(Art. 82 EC; Council Regulation No 17, Art. 15(2))

16. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Repeated infringement – Concept of infringements of the same type – Infringements of Article 81 EC, on the one hand, and Article 82 EC, on the other – Not included

(Arts 81 EC and 82 EC; Council Regulation No 17, Art. 15(2))

17. Competition – Fines – Amount – Determination – Criteria – Obligation to deduct from the amount of the fine costs incurred to guarantee the application of a decision that is subsequently annulled – None

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

18. Competition – Community rules – Infringements – Committed intentionally – Definition

(Council Regulation No 17, Art. 15)

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

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

20. Competition – Fines – Imposition – Requirement that the undertaking benefited from the infringement – None – Determination – Criteria – Gravity of the infringement – Mitigating circumstances – Absence of benefit – Not included

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

21. Competition – Fines – Amount – Determination – Criteria – Gravity of the infringement – Aggravating circumstances – Concealment of the cartel – Absence of secrecy not constituting a mitigating circumstance

(Arts 81 EC and 82 EC; Council Regulation No 17, Art. 15(2))

1. Under Article 3 of Regulation No 2988/74 concerning limitation periods in proceedings and the enforcement of sanctions under the rules relating to competition, the limitation period in proceedings is to be suspended for as long as a decision of the Commission is the subject of ‘proceedings pending before the Court of Justice of the European Communities’. That reference must be understood, after the creation of the General Court, as referring, in the first place, to proceedings pending before it, since actions imposing sanctions or fines in the field of competition law come within its jurisdiction.

The limitation period is also suspended for the duration of appeal proceedings before the Court of Justice. Since Article 60 of the Statute of the Court of Justice and Article 3 of Regulation No 2988/74 are different in scope, the fact that an appeal does not have suspensory effect does not deprive Article 3 of that regulation – which concerns situations in which the Commission must await the decision of the Community judicature – of all effect. Moreover, Article 3 of Regulation No 2988/74 protects the Commission against the effect of the limitation period in situations in which it must await the decision of the Community judicature in proceedings beyond its control before knowing whether the contested act is or is not vitiated by illegality.

The argument that, following the annulment of a Commission decision, the Commission cannot benefit from its own error by imposing a fine after the expiry of the limitation period must be rejected. Any annulment of a measure which the Commission has adopted is necessarily imputable to it, in the sense that it reveals an error on the Commission’s part. Therefore, to exclude suspension of the limitation period where the action leads to recognition of an error imputable to the Commission would deprive Article 3 of Regulation No 2988/74 of all meaning. It is the very fact that an action is pending before the General Court or the Court of Justice which justifies the suspension, and not the conclusions reached by those courts in their judgment.

If the Commission had to adopt a new decision following the annulment of a decision by the General Court without awaiting the judgment of the Court of Justice, there is a risk that there would be two co-existing decisions having the same subject-matter in the event that the Court of Justice were to set aside the judgment of the General Court. It is contrary to the requirements of economy of administrative procedure to require the Commission, with the sole aim of avoiding the lapse of the limitation period, to adopt a new decision before knowing whether the initial decision is or is not vitiated by illegality.

Since the limitation period laid down in Article 3 of Regulation No 2988/74 was suspended for the duration of the proceedings before the General Court and the Court of Justice, the Commission cannot be criticised for breaching the principle that action must be taken within a reasonable time by awaiting the rulings of the General Court and the Court of Justice before adopting the contested decision, it being justified by respect for judicial proceedings and future judgments.

(see paras 73-74, 77, 82, 85-86, 88-89, 132)

2. When a complaint alleging infringement of the principle that action must be taken within a reasonable time is being examined, a distinction must be drawn between the administrative procedure, conducted in competition matters pursuant to Regulation No 17, and judicial proceedings, in the event of an appeal against the Commission’s decision. The period during which the Community judicature examines the legality of the decision and, in the event of an appeal, the validity of the judgment delivered at first instance, cannot be taken into account in determining the duration of the procedure before the Commission.

(see para. 102)

3. A breach of the principle that action must be taken within a reasonable time when a decision following an administrative proceeding in competition matters is adopted would justify the annulment of a decision taken by the Commission 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 action must be taken within a reasonable time cannot affect the validity of the administrative procedure.

(see para. 109)

4. The general principle of Community law that everyone is entitled to a fair hearing, which is inspired by Article 6(1) of the European Convention for the Protection of Human Rights, and in particular the right to legal process within a reasonable period, is applicable in the context of proceedings brought against a Commission decision imposing fines on an undertaking for infringement of competition law.

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

In that regard, the list of criteria is not exhaustive and the assessment of the reasonableness of a period does not require a systematic examination of the circumstances of the case in the light of each of them, where the duration of the proceedings appears justified in the light of one of them. Thus, the complexity of the case may be deemed to justify a duration which is prima facie too long.

In the absence of any evidence that the duration of the procedure has had an impact on the outcome of the case, the possibility that the Court may have taken longer than a reasonable time, were that to be established, would have no effect on the lawfulness of the contested decision. It might justify the payment of compensation, were the undertaking to make a claim.

(see paras 114, 116-117)

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

Where the procedural defect occurred at the final stage of adoption of a decision imposing sanctions on an undertaking for having infringed Community rules on competition, the annulment of that decision does not affect the validity of the preparatory measures which were taken before the stage at which the defect was found. Where it adopts a new decision having substantially the same content and based on the same objections, the Commission is therefore not required take fresh procedural steps.

In particular, the Commission cannot be criticised for not having conducted a new hearing of the undertaking in question, for not having given that undertaking the opportunity to put forward its arguments again, or for not having sent it a new statement of objections.

As for questions of law which may arise in the context of the application of Article 233 EC, such as those relating to the passage of time, the possibility of resuming proceedings, the access to the file required on resumption of proceedings, the intervention of the Hearing Officer and the Advisory Committee, and the possible implications of Article 20 of Regulation No 17, they do not render a new hearing necessary either, since they do not alter the substance of the objections, being at most amenable to subsequent judicial review.

Moreover, since a new hearing is not required, a fresh intervention of the Hearing Officer is also unnecessary. It follows from the very substance of the task entrusted to the Hearing Officer that his intervention is necessarily linked to the undertakings being heard in view of the possibility of a decision being adopted.

Furthermore, inasmuch as the new decision does not contain substantial amendments compared with the annulled decision, the Commission, which is not required to hear the undertaking in question again, is not required to arrange for fresh consultation of the Advisory Committee on Restrictive Practices and Monopolies either.

For the same reasons, the file submitted to the members of the College of Commissioners does not have to contain, inter alia, a new report by the Hearing Officer or a fresh report on the consultation of the Advisory Committee.

(see paras 125-126, 134-135, 151, 153-154, 161-162, 168, 174)

6. The principle of collegiality is based on the equal participation of the Commissioners in the adoption of decisions, from which it follows in particular that decisions should be the subject of collective deliberation and that all the members of the College of Commissioners should bear collective responsibility at political level for all decisions adopted. Compliance with that principle, and especially the need for decisions to be deliberated upon together, are bound to be of concern to the individuals affected by the legal consequences of such decisions, in the sense that they must be sure that those decisions were actually taken by the College of Commissioners and correspond exactly to its intention. This is particularly so, in the case of acts, expressly described as decisions, which the Commission finds it necessary to adopt with regard to undertakings or associations of undertakings for the purpose of ensuring observance of the competition rules and by which it finds an infringement of those rules, issues directions to those undertakings and imposes pecuniary sanctions upon them.

The mere fact that a press release not originating from the Commission and which is not in any way official mentions a statement made by the Commission’s spokesperson detailing the date when a competition decision will be delivered and its content, does not suffice to support the conclusion that the Commission breached the principle of collegiality. Since it is not in any way bound by such a statement, the College of Commissioners may decide, following collective deliberation, not to adopt such a decision.

(see paras 175-178)

7. In order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time limits provided for in that connection can no longer be called into question.

A judgment’s status as res judicata is such as to bar the admissibility of an action if the proceedings disposed of by the judgment in question were between the same parties, had the same purpose and the same legal basis, those conditions necessarily being cumulative. The principle of res judicata extends only to the matters of fact and law actually or necessarily settled by the judicial decision in question.

(see paras 196-198)

8. The institution whose measure is annulled is bound only within the limits of what is required to ensure implementation of the judgment annulling that measure. The procedure for replacing such a measure may thus be resumed at the very point at which the illegality occurred.

Where a decision of the Commission imposing sanctions on an undertaking for abuse of a dominant position is annulled on the ground that the authentication of that decision was carried out after its notification, which constitutes an infringement of an essential procedural requirement within the meaning of Article 230 EC, the Commission can resume its assessment at the point of authentication, without having to examine whether its findings in respect of the relevant market which it made before adopting the first decision were still valid in the light of factual and legal circumstances at the time when it adopted the second decision. The consideration that a finding of a dominant position is the outcome of an analysis of the structure of the market and of competition prevailing at the time the Commission adopts each decision does not imply that the Commission must, in all cases, carry out a fresh analysis of the relevant market at the time when the contested decision is adopted. In particular, the Commission is not required to carry out such an analysis where that is not necessary to implement the judgment annulling the decision.

(see paras 243-245)

9. The dominant position referred to in Article 82 EC relates to a position of economic strength enjoyed by an undertaking which enables it to hinder the maintenance of effective competition on the relevant market, by allowing it to behave to an appreciable extent independently of its competitors, customers and, ultimately, consumers. Unlike a monopoly or a quasi‑monopoly situation, such a position does not preclude some competition, but enables the undertaking which profits by it, if not to determine, at least to have an appreciable influence on the conditions under which that competition will develop, and in any case to act largely in disregard of it and without suffering any adverse effects as a result of its attitude.

In general a dominant position derives from a combination of several factors which, taken separately, would not necessarily be determinative. In order to assess whether there is a dominant position on the relevant market it is necessary to examine first of all its structure and then the competitive situation on that market.

Very large market shares are in themselves, and save in exceptional circumstances, evidence of the existence of a dominant position. An undertaking which has a very large market share and holds it for a certain period of time, by means of the volume of production and the scale of the supply which it stands for – without those having much smaller market shares being able to meet rapidly the demand from those who would like to break away from the undertaking which has the largest market share – is by virtue of that share in a position of strength which makes it an unavoidable trading partner and which, because of this alone, secures for it, at the very least during relatively long periods, that freedom of action which is the special feature of a dominant position.

Thus, a share of between 70% and 80% is, in itself, a clear indication of the existence of a dominant position in the relevant market. Likewise, a market share of 50% is in itself, and save in exceptional circumstances, evidence of the existence of a dominant position.

(see paras 254-257)

10. A rebate system which has a foreclosure effect on the market will be regarded as contrary to Article 82 EC if it is applied by an undertaking in a dominant position. That is true of a fidelity rebate granted in return for an undertaking by the customer to obtain his stock exclusively or almost exclusively from an undertaking in a dominant position. Such a rebate is designed, through the grant of financial advantage, to prevent customers from obtaining their supplies from competing producers. By obstructing access to the market by competitors, the conduct of such an undertaking is likely to affect patterns of trade and competition on the common market.

(see paras 296-297, 337)

11. Quantity rebate systems linked solely to the volume of purchases made from an undertaking occupying a dominant position are generally considered not to have the foreclosure effect prohibited by Article 82 EC. If increasing the quantity supplied results in lower costs for the supplier, the latter is entitled to pass on that reduction to the customer in the form of a more favourable tariff. Quantity rebates are therefore deemed to reflect gains in efficiency and economies of scale made by the undertaking in a dominant position.

It follows that a rebate system in which the rate of discount increases according to the volume purchased will not infringe Article 82 EC unless the criteria and rules for granting the rebate reveal that the system is not based on an economically justified countervailing advantage but tends, following the example of a fidelity and target rebate, to prevent customers from obtaining their supplies from competitors.

In determining whether a quantity rebate system is abusive, it is therefore necessary to consider all the circumstances, particularly the criteria and rules governing the grant of the rebate, and to investigate whether, in providing an advantage not based on any economic service justifying it, the rebates tend to remove or restrict the buyer’s freedom to choose his sources of supply, to bar competitors from access to the market, to apply dissimilar conditions to equivalent transactions with other trading parties or to strengthen the dominant position by distorting competition.

(see paras 298-300)

12. An undertaking which is in a dominant position on a market and ties purchasers – even if it does so at their request – by an obligation or promise on their part to obtain all or most of their requirements exclusively from the undertaking abuses its dominant position within the meaning of Article 82 EC, whether the obligation in question is stipulated without further qualification or whether it is undertaken in consideration of the grant of a rebate. The same applies if the undertaking, without tying the purchasers by a formal obligation, applies, either under the terms of agreements concluded with these purchasers or unilaterally, a system of fidelity rebates, that is to say discounts conditional on the customer’s obtaining all or most of its requirements from the undertaking in a dominant position. Obligations of this kind to obtain supplies exclusively from a particular undertaking, whether or not they are in consideration of rebates or of the granting of fidelity rebates intended to give the purchaser an incentive to obtain his supplies exclusively from the undertaking in a dominant position, are incompatible with the objective of undistorted competition within the common market, because they are not based on an economic transaction which justifies this burden or benefit but are designed to deprive the purchaser of or restrict its possible choices of sources of supply and to deny other producers access to the market.

(see para. 315)

13. In determining the amount of fines for infringements of competition law, the Commission must take into account not only the gravity of the infringement and the particular circumstances of the case but also the context in which the infringement was committed and must ensure that its action has the necessary deterrent effect, especially as regards those types of infringement which are particularly harmful to the attainment of the objectives of the Community. Moreover, where the Commission adopts a decision in compliance with Regulation No 2988/74 concerning limitation periods in proceedings and the enforcement of sanctions under the rules relating to competition and with the principle that action must be taken within a reasonable time, there can be no complaint that it delayed in adopting that decision. In such circumstances, a fine, imposed by a decision adopted following the annulment of a first decision, should not be cancelled on account of the time which passed between the adoption of the two decisions.

(see paras 354-355)

14. Where a decision is annulled because of a procedural defect, the Commission is fully entitled to adopt a new decision, without having to initiate a fresh administrative proceeding. Since the content of the new decision is practically identical to that of previous decision, and since those two decisions are based on the same grounds, the new decision is subject, in the context of setting the amount of the fine, to the rules in force at the time when the previous decision was adopted. The Commission recommences the proceeding from the point where the procedural error was committed and adopts a new decision, without carrying out a fresh assessment of the case in the light of rules which were not in existence at the time when the first decision was adopted.

(see paras 366-368)

15. In assessing the gravity of the infringement of Community competition rules for which an undertaking is liable, in order to determine a fine which is proportionate, the Commission may take into account the exceptional duration of certain infringements; the number and diversity of the infringements, which concerned all or almost all the undertaking’s products and some of which affected all the Member States; the particular gravity of the infringements which formed part of a deliberate and coherent strategy seeking, by various eliminatory practices towards competitors and by a policy of retaining customers, to maintain artificially or to strengthen the dominant position of the undertaking in question on markets where competition was already limited; particularly harmful effects of the abuses in terms of competition and the benefit gained by the applicant from its infringements.

The Commission is entitled to categorise as particularly serious the practices of an undertaking in a dominant position which, by granting rebates on marginal tonnage to its customers and by entering into loyalty‑inducing agreements with them, foreclose for a long time sales opportunities for all competitors and cause lasting damage to the structure of the market concerned, to the detriment of consumers.

(see paras 370, 372, 374)

16. The analysis of the gravity of an infringement of Community competition rules must take account of any repeated infringement. The concept of repeated infringement, as understood in a number of national legal orders, implies that a person has committed new infringements after being punished for similar infringements. The Guidelines on the methods of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty make similar provisions where they refer to an ‘infringement of the same type’. Therefore, the Commission cannot find that an aggravating circumstance for repeated infringement exists in the case of an undertaking which abuses its dominant position on the market within the meaning of Article 82 EC because of previous collusive practices relating to Article 81 EC, which are in addition very different from those giving rise to the infringement of Article 82 EC.

(see paras 377-381)

17. In competition matters, where an undertaking incurs costs in providing the guarantees for payment of a fine imposed by a decision which is subsequently annulled by the Community judicature and in establishing that that decision was unlawful, the Commission is not required to take those costs into account when it sets the fine in the decision adopted following the judgment annulling the first decision, since the undertaking is able to seek their reimbursement in the context of an action for damages.

(see para. 383)

18. For an infringement to be regarded as having been committed intentionally, it is not necessary for the undertaking to have been aware that it was infringing the prohibition laid down by the competition rules in the Treaty applicable to undertakings; it is sufficient that it could not have been unaware that the contested conduct had as its object or effect the distortion of competition in the common market.

(see para. 412)

19. Factors relating to the object of a course of conduct may be more significant than those relating to its effects.

(see para. 435)

20. Although the amount of the fine imposed for infringement of the Community competition rules must be proportionate to the duration of the infringement and the other factors capable of affecting the assessment of the gravity of the infringement, such as the profit that the undertaking was able to derive from its practices, the fact that an undertaking did not benefit from the infringement cannot preclude the imposition of a fine, since otherwise it would cease to have a deterrent effect. It follows that the Commission is not required, in order to set fines, to take into consideration any lack of benefit from the infringement at issue. Furthermore, the absence of such a benefit cannot be regarded as a mitigating circumstance.

(see para. 443)

21. The Commission is fully entitled to hold secrecy to be an aggravating circumstance when assessing the gravity of an infringement of Articles 81 or 82 EC. However, it cannot be inferred therefrom that the absence of secrecy constitutes a mitigating circumstance.

(see paras 446-447)

JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

25 June 2010 ( )

(Competition – Abuse of dominant position – Market for soda ash in the United Kingdom – Decision finding an infringement of Article 82 EC – Commission’s power to impose a fine or sanction – Reasonable time – Essential procedural requirements – Res judicata – Existence of the dominant position – Abuse of the dominant position – Effect on trade between Member States – Fine – Gravity and duration of the infringement – Mitigating circumstances)

In Case T‑66/01,

Imperial Chemical Industries Ltd, formerly Imperial Chemical Industries plc, established in London (United Kingdom), represented by D. Vaughan QC, D. Anderson QC and S. Lee, Barrister, and by S. Turner, S. Berwick and R. Coles, Solicitors, and then by D. Vaughan QC, S. Berwick, Solicitor, S. Lee and S. Ford, Barristers,

applicant,

v

European Commission, represented by J. Currall and P. Oliver, acting as Agents, and by J. Flynn QC and C. West, Barrister,

defendant,

APPLICATION for annulment of Commission Decision 2003/7/EC of 13 December 2000 relating to a proceeding under Article 82 [EC] (Case COMP/33.133-D: Soda ash – ICI) (OJ 2003 L 10, p. 33) or, in the alternative, for cancellation or reduction of the fine imposed on the applicant,

THE GENERAL COURT (Sixth Chamber),

composed of A.W.H. Meij, President, V. Vadapalas (Rapporteur) and A. Dittrich, Judges,

Registrar: K. Pocheć, Administrator,

having regard to the written procedure and further to the hearing on 26 June 2008,

gives the following

Judgment

Facts

1 The applicant, Imperial Chemical Industries Ltd, formerly Imperial Chemical Industries plc, is a company established under the law of the United Kingdom which is active in the chemicals sector. At the material time it produced, inter alia, soda ash.

2 Soda ash is either naturally present in the form of trona ore (natural soda), or obtained by a chemical process (synthetic soda). Natural soda is obtained by crushing, purifying and roasting trona ore. Synthetic soda is the result of the reaction of common salt and limestone in the ‘ammonia-soda’ process developed by the Solvay brothers in 1863.

3 In April 1989, the Commission of the European Communities carried out investigations at the premises of various Community producers of soda ash pursuant to Article 14(3) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81 EC] and [82 EC] (OJ English special edition 1959‑1962 p. 87), in the version applicable at the material time.

4 On 19 June 1989, the Commission sent the applicant a request for information pursuant to Article 11 of Regulation No 17, to which the applicant replied on 14 September 1989.

5 On 19 February 1990, the Commission decided to open a proceeding on its own initiative against the applicant, Solvay and Chemische Fabrik Kalk (‘CFK’) pursuant to Article 3(1) of Regulation No 17.

6 On 13 March 1990, the Commission sent a statement of objections to the applicant, Solvay and CFK. Each of those companies received only that part or those parts of the statement of objections relating to the infringements concerning it, to which the inculpatory evidence was annexed.

7 The Commission created a single file for all the infringements referred to in the statement of objections.

8 As regards the present case, the Commission concluded in Part V of the statement of objections that the applicant had abused the dominant position it held on the market for soda ash in the United Kingdom.

9 On 31 May 1990, the applicant submitted its written observations in response to the Commission’s objections. It was heard by the Commission on 26 and 27 June 1990.

10 On 19 December 1990, the Commission adopted Decision 91/300/EEC relating to a proceeding under Article [82 EC] (IV/33.133-D: Soda ash – ICI) (OJ 1991 L 152, p. 40). In that decision, notified to the applicant by letter of 1 March 1991, the Commission stated that ‘[the applicant had] infringed the provisions of Article [82 EC] from about 1983 until the present time by a course of conduct aimed at excluding or severely limiting competition and consisting of … granting substantial rebates and other financial inducements referable to marginal tonnage in order to ensure that customers bought all or most of their requirements from the applicant; securing the agreement of customers to buy the whole or substantially the whole of their requirements from [it] and/or to restrict their purchases of competitive material to a specified tonnage and in one case at least making the granting of rebates and other financial benefits dependent upon the customers agreeing to buy the whole of their requirements from [it]’.

11 Under Article 3 of Decision 91/300, ‘a fine of ECU 10 million [was] imposed on [the applicant] in respect of the infringement … specified’.

12 On the same date, the Commission also adopted Decision 91/297/EEC relating to a proceeding under Article [81 EC] (IV/33.133‑A: Soda ash – Solvay, ICI) (OJ 1991 L 152, p. 1) in which it stated that ‘Solvay and [the applicant had] infringed Article [81 EC] by participating since 1 January 1973 until at least the institution of the present proceedings in a concerted practice by which they confined their soda ash sales in the Community to their respective home markets, namely Continental Western Europe for Solvay and the United Kingdom and Ireland for [the applicant]’. A fine of ECU 7 million was imposed on both Solvay and the applicant respectively.

13 On the same date, the Commission also adopted Decision 91/298/EEC relating to a proceeding under Article [81 EC] (IV/33.133-B: Soda ash – Solvay, CFK) (OJ 1991 L 152, p. 16), in which it stated that ‘Solvay and CFK [had] infringed Article [81 EC] by participating from about 1987 until the present time in a market‑sharing agreement by which Solvay guaranteed to CFK a minimum annual sales tonnage of soda ash in Germany calculated by reference to CFK’s achieved sales in 1986, and compensated CFK for any shortfall by purchasing from it the tonnages required to bring its sales to the guaranteed minimum’. A fine of ECU 3 million was imposed on Solvay and a fine of ECU 1 million was imposed on CFK.

14 On the same date, the Commission adopted, in addition, Decision 91/299/EEC relating to a proceeding under Article [82 EC] (IV/33.133-C: Soda ash – Solvay) (OJ 1991 L 152, p. 21) in which it stated that ‘Solvay [had] infringed Article [82 EC] from about 1983 to the present time by a course of conduct aimed at excluding or severely limiting competition and consisting of … the conclusion of agreements with customers which require them to purchase the whole or a very large proportion of their requirements of soda ash from Solvay for an indefinite or excessively long period; the granting of substantial rebates and other financial inducements referable to marginal tonnage over and above the customer’s basic contracted tonnage in order to ensure that they buy all or most of their requirements from Solvay; making the granting of rebates dependent upon the customer agreeing to buy the whole of its requirements from Solvay’. A fine of ECU 20 million was imposed on Solvay.

15 On 2 May 1991, Solvay sought the annulment of Decisions 91/297, 91/298 and 91/299. On 14 May 1991, the applicant brought an action before the Court of First Instance (now ‘the General Court’) seeking annulment of Decisions 91/297 and 91/300.

16 By judgment of 29 June 1995 in Case T‑37/91 ICI v Commission [1995] ECR II‑1901 (‘ICI II’), the General Court held that the plea alleging breach of the rights of the defence relating to access to the file had to be rejected in its entirety, but went on to annul Decision 91/300 on the ground that the authentication of that decision had been carried out after its notification, which constituted an infringement of an essential procedural requirement within the meaning of Article 230 EC.

17 On the same date, the General Court also annulled Decision 91/297 (Case T-30/91 Solvay v Commission [1995] ECR II‑1775; ‘Solvay I’ and T‑36/91 ICI v Commission [1995] ECR II‑1847; ‘ICI I’) inasmuch as that decision concerned the applicants in the two cases, for breach of right of access to the file. In addition, the General Court annulled Decision 91/298 (Case T‑31/91 Solvay v Commission [1995] ECR II‑1821; ‘Solvay II’) in so far as it concerned Solvay, and Decision 91/299 (Case T‑32/91 Solvay v Commission [1995] ECR II‑1825; ‘Solvay III’), on the basis of the unlawful authentication of the contested decisions.

18 By applications lodged at the Registry of the Court of Justice on 30 August 1995, the Commission appealed against the judgment in ICI II, paragraph 16 above, and the judgments in Solvay II and Solvay III, paragraph 17 above.

19 By judgments of 6 April 2000 in Case C‑268/95 P Commission v ICI [2000] ECR I‑2341, and in Joined Cases C‑287/95 P and C‑288/95 P Commission v Solvay [2000] ECR I‑2391, the Court dismissed the appeals against the judgment in ICI II, paragraph 16 above, and the judgments in Solvay II and Solvay III, paragraph 17 above.

20 On Tuesday 12 December 2000, a press agency issued a press release worded as follows:

‘The European Commission will fine the chemical industry companies Solvay SA and Imperial Chemical Industries plc … on Wednesday for infringement of European Union competition law, a spokesperson announced on Tuesday.

The fines for alleged abuse of a dominant position on the soda ash market had initially been imposed 10 years ago, but were annulled by the highest European Court on procedural grounds.

The Commission will adopt the same decision again on Wednesday, but in the proper form, the spokesperson stated.

The substance of the decision has never been challenged by the companies. We shall adopt the same decision again, said [the spokesperson].’

21 On 13 December 2000, the Commission adopted Decision 2003/7/EC relating to a proceeding under Article 82 [EC] (COMP/33.133‑D: Soda ash – ICI) (OJ 2003 L 10, p. 33; ‘the contested decision’).

22 On the same date, the Commission also adopted Decision 2003/5/EC relating to a proceeding under Article 81 [EC] (COMP/33.133‑B: Soda ash – Solvay, CFK) (OJ 2003 L 10, p. 1) and Decision 2003/6/EC relating to a proceeding under Article 82 [EC] (COMP/33.133‑C: Soda ash – Solvay) (OJ 2003 L 10, p. 10).

23 The contested decision contains the following provision:

‘Article 1

[The applicant] infringed Article [82 EC] from about 1983 until at least the end of 1989 by a course of conduct aimed at excluding or severely limiting competition and consisting of:

(a) granting substantial rebates and other financial inducements referable to marginal tonnage in order to ensure that customers buy all or most of their requirements from [the applicant];

(b) securing the agreement of customers to buy the whole or substantially the whole of their requirements from [the applicant] and/or to restrict their purchases of competitive material to a specified tonnage;

(c) in one case at least making the granting of rebates and other financial benefits dependent upon the customers agreeing to buy the whole of its requirements from [the applicant].

Article 2

A fine of EUR 10 million is imposed on [the applicant] in respect of the infringement specified in Article 1.

…’

24 The contested decision is drafted in practically the same terms as Decision 91/300. The Commission merely made a few editorial amendments and added a new section entitled ‘Proceedings before the Court of First Instance and the Court of Justice’.

25 In that new section of the contested decision, the Commission, referring to the judgment of the General Court in Joined Cases T‑305/94 to T‑307/94, T‑313/94 to T‑316/94, T‑318/94, T‑325/94, T‑328/94, T‑329/94 and T‑335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II‑931 (‘judgment of the General Court in PVC II’), held that it was ‘entitled to re-adopt a decision which has been annulled for purely procedural defects … without conducting a fresh administrative procedure’ and that it was ‘not required to hold a new oral Hearing if the text of the new decision does not contain any new objections besides those set out in the original decision’ (recital 164).

26 The Commission also stated in the contested decision that the limitation period had to be extended by the period during which proceedings against Decision 91/300 were pending before the General Court and the Court of Justice, under Article 3 of Council Regulation (EEC) No 2988/74 of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ 1974 L 319, p. 1) (recitals 169 and 170). Thus, taking into account the circumstances of the case, the Commission considered that it had until the end of 2003 to issue a new decision (recital 172). Moreover, it indicated that the rights of the defence would not be infringed if the new decision were adopted within a reasonable time (recital 164).

27 As regards the actual infringement, the Commission stated in the contested decision that ‘the appropriate product and geographical area’ in which the applicant’s economic power ‘[fell] to be assessed [was] thus the market for soda ash in the United Kingdom’ (recital 125).

28 In order to assess the applicant’s market power for the purposes of the present case, the Commission noted that the market share held by the applicant on the relevant market was historically over 90% over the whole of the period under consideration, which was in itself strong evidence of a significant degree of market power (recital 127). Then, it examined the relevant economic factors and concluded in the contested decision that, at all material times, the applicant occupied a dominant position within the meaning of Article 82 EC (recitals 128 to 136).

29 As regards the abuse of that dominant position, the Commission stated in the contested decision that the applicant had implemented a practice of ‘tying’ customers by means of a number of devices which all served the same exclusionary purpose (recital 138). In that regard, it stated, in recital 139 of the contested decision, that rebates on marginal tonnage were intended to exclude effective competition by:

– inducing customers to obtain from the applicant the marginal tonnage which might otherwise be obtained from a second supplier;

– minimising or neutralising the competitive impact of General Chemical by containing its presence [on] the market in terms of price, tonnage and customers within limits that insured the continuance of the applicant’s effective monopoly;

– eliminating Brenntag from the market or at least minimising its competitive effect;

– minimising the risk of the customers turning to alternative sources of supply;

– maintaining and reinforcing the applicant’s virtual monopoly of the United Kingdom market for soda ash.

30 In addition, in recital 147 of the contested decision, the Commission points out that ‘the agreements with [its] major customers meant that they were tied to [the applicant] for substantially the whole of their requirements (and in one case at least, their total requirements) while the competitive effect of other suppliers was minimised’.

31 The Commission also stated in the contested decision that other financial inducements consolidated the applicant’s dominant position in a manner which was incompatible with the concept of competition inherent in Article 82 EC (recital 149).

32 As regards the effect on trade between Member States, the Commission stated in the contested decision that, although the measures taken by the applicant to ensure the continuance of its dominant position and effective monopoly in the United Kingdom were aimed in the first place at direct competition from outside the Community (the United States and Poland) rather than other Community producers, the rebates on marginal tonnage and other exclusionary devices had to be examined in the overall context of the phenomenon of strict separation of national markets in the Community. In that regard, it explained that the applicant was particularly anxious that General Chemical should remain in the relevant market as an alternative, and had it left the market entirely, the customers might have been encouraged to look for alternative and possibly cheaper sources of supply in Continental Western Europe. Furthermore, it noted that the maintenance and reinforcement of the applicant’s dominant position in the United Kingdom affected the whole structure of competition in the common market and ensured that the status quo, based on market separation, would be maintained (recitals 151 to 154).

33 The Commission explained in the contested decision that the infringements committed were of particular gravity in that they ‘were part of a deliberate policy aimed at consolidating the applicant’s control over the [market for soda ash in the United Kingdom] in a manner which was in fundamental conflict with the basic objectives of the Treaty’ and ‘were specifically directed at restricting or damaging the business of particular competitors’ (recital 156).

34 The Commission also indicated in the contested decision that the infringement had begun in about 1983 and continued at least up to the end of 1989. It stated, lastly, that it took account of the fact that the applicant had abandoned the system of top‑slice rebates with effect from 1 January 1990 (recitals 160 and 161).

35 By letters of 18 January, 26 January and 8 February 2001, the applicant made a request for access to the Commission’s file. By letter of 14 February 2001, the Commission refused that request.

Procedure

36 By application lodged at the Registry of the General Court on 20 March 2001, the applicant brought the present action.

37 In the application, the applicant requested the Court, inter alia, to order the Commission to produce all the documents on its file in Case COMP/33.133.

38 On 4 May 2001, the case was allocated to the Fourth Chamber of the Court and a Judge-Rapporteur was appointed.

39 Following authorisation from the Court, the applicant and the Commission submitted their observations on 18 and 23 December 2002 respectively on the inferences to be drawn in the present case from the judgment of the Court of Justice in Joined Cases C‑238/99 P, C‑244/99 P, C‑245/99 P, C‑247/99 P, C‑250/99 P to C‑252/99 P and C‑254/99 P Limburgse Vinyl Maatschappij and Others v Commission [2002] ECR I‑8375 (‘judgment of the Court of Justice in PVC II’). In its observations, the applicant advised the Court that it was no longer pursuing its plea alleging infringement of the principle of non bis in idem.

40 As the composition of the Chambers of the Court changed with effect from 1 October 2003, the Judge‑Rapporteur was assigned to the First Chamber, to which the present case was accordingly allocated on 8 October 2003.

41 As the composition of the Chambers of the Court changed with effect from 13 September 2004, the Judge‑Rapporteur was assigned to the Fourth Chamber in its new composition, to which the present case was accordingly allocated on 19 October 2004.

42 On 11 January 2005, the Court requested the Commission to lodge at the Court Registry a detailed, numbered list of all the documents which made up the administrative file. That list had to include a succinct indication making it possible to identify the author, the nature and the content of each document. It also had to indicate which of those documents were not accessible to the applicant and specify, where appropriate, the reasons which, according to the Commission, precluded their disclosure.

43 By letters of 28 January 2005, the Commission lodged at the Court Registry the numbered list requested by the Court and indicated that the documents to which the applicant had access during the administrative procedure were those on which the Commission had relied to support its objections, and which were therefore appended to its statement of objections. It also stated that it regretted ‘to inform the Court that it [then appeared] that, no doubt as a result of several office removals in the last ten years, some files [could] no longer be found, despite extensive searches’ and that it considered that it was its duty to inform the Court and the applicant without delay that ‘while the list attached to these observations is a complete list of the file in its possession, it [did] not cover the missing files’. According to the Commission, the procedure followed in 1990 was consistent with the case‑law then applicable in respect of access to the file. It added that there were no indications at that time that there were documents in the file which could have had a genuine influence on the adoption of Decision 91/300, even taking into account the development of the case‑law since 1990.

44 By letter of 13 April 2005, the Court asked the applicant to indicate those documents appearing on the numbered list which had not been communicated to it during the administrative procedure and which, in its view, were likely to contain elements which might have been useful to its defence.

45 By letter of 9 May 2005, the applicant stated that some of the missing documents would have been useful to its defence. It also indicated, among the documents appearing on the list, those which appeared to it to be useful to its defence and which it wished to consult. According to it, those documents might have enabled it to develop its lines of argument regarding the definition of the relevant geographical market, the existence of a dominant position, the abuse of that dominant position and the effect on trade between Member States.

46 By letter of 7 June 2005, the Court asked the Commission to lodge at the Court Registry the originals of the documents comprising the administrative file and contained in files 2 to 38, 50 to 59 and 60 to 65, with the exception of internal documents. The Commission was also asked to lodge non-confidential versions or non-confidential summaries instead and in place of documents containing commercial secrets, information which had been communicated to the Commission during the administrative procedure subject to observance of its confidentiality or other confidential information. The Commission was also asked to produce the full version, including the confidential information, of the documents mentioned above for the purposes of verification of their confidential nature.

47 On 21 June 2005, the Commission asked the Court to permit it to lodge a single original accompanied by CD-ROMs, bearing in mind the length of the documents. That request was granted on 4 July 2005.

48 By letter of 20 July 2005, the Commission lodged at the Court Registry the documents requested by the Court. The Registrar then sent the CD‑ROMs lodged by the Commission to the applicant.

49 On 13 October 2005, the applicant submitted its observations on the usefulness to its defence of the documents comprising the administrative file. The Commission replied to the applicant’s observations on 26 October 2007.

50 Following the departure of the Judge‑Rapporteur initially appointed at the end of his term of office, the President of the Court, by decision of 22 June 2006, appointed a new Judge‑Rapporteur.

51 As the composition of the Chambers of the Court changed with effect from 25 September 2007, the Judge‑Rapporteur was assigned to the Sixth Chamber, to which the present case was accordingly allocated on 8 November 2007.

52 On 13 February 2008, as Judge Tchipev was prevented from sitting, the President of the Court, under Article 32(3) of the Court’s Rules of Procedure, designated Judge Dittrich to complete the Chamber.

53 On hearing the report of the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral procedure and, in the context of measures of organisation of procedure provided for in Article 64 of the Rules of Procedure, put written questions to the applicant and the Commission. The applicant and the Commission replied to those questions within the prescribed time‑limit.

54 The parties presented oral argument and replied to the Court’s oral questions at the hearing on 26 and 27 June 2008.

55 At the hearing, the Court authorised the applicant to submit observations on the Commission’s written replies of 16 June 2008. The applicant submitted its observations on 9 July 2008 and the Commission replied to those observations on 3 September 2008.

Forms of order sought by the parties

56 The applicant claims that the Court should:

– declare the application admissible;

– declare that as a result of the passage of time the Commission had no power to take the contested decision or, alternatively, no power to impose a fine on the applicant;

– annul the contested decision;

– cancel or reduce the fine imposed by Article 2 of the contested decision;

– order the Commission to produce all of its internal documents relating to the taking of the contested decision, and in particular the minutes of the meeting of the College of Commissioners and all the annexed documents, and any documents put before the College of Commissioners on that occasion;

– order the Commission to produce the documents on its file in COMP/33.133;

– order the Commission to pay the costs, including the costs (inclusive of interest) of any guarantee provided by the applicant in respect of the fine imposed by the contested decision.

57 The Commission contends that the Court should:

– dismiss the action as unfounded;

– reject the request for access to the file;

– declare the request for a specific order that it pay the applicant’s costs, including the costs (inclusive of interest) of any guarantee provided in respect of the fine, to be inadmissible or in any event to reject it as unfounded;

– order the applicant to pay the costs.

Law

58 The applicant claims, principally, that the contested decision should be annulled and, in the alternative, that the fine imposed on it by the decision should be cancelled or reduced.

1. The claim seeking annulment of the contested decision

59 The applicant raises, in essence, six pleas seeking annulment of the contested decision. Those pleas allege, first, that the Commission lacked the power to adopt the contested decision; second, infringement of essential procedural requirements; third, incorrect assessment of the relevant market; fourth, absence of a dominant position; fifth, absence of abuse of a dominant position and, sixth, absence of an effect on trade between Member States.

First plea: the Commission’s lack of power to adopt the contested decision

60 The first plea comprises two parts alleging, respectively, incorrect application of the limitation rules and infringement of the principle that action must be taken within a reasonable time.

First part: the incorrect application of limitation rules

– Arguments of the parties

61 The applicant points out that, whilst the limitation period laid down in Regulation No 2988/74 applies only to the part of the decision imposing the fine, that is a very significant part of the decision.

62 According to the applicant, Article 3 of Regulation No 2988/74 does not apply so as to extend the period of limitation in relation to legal proceedings the subject‑matter of which is a final decision of the Commission. The period of limitation is suspended only in the event of appeals against decisions adopted in the course of the administrative procedure, namely measures of management and administration including the adoption of a statement of objections or measures under the general powers of investigation conferred by Regulation No 17. The interpretation adopted by the Commission in the contested decision is contrary to the wording of Article 3 of Regulation No 2988/74. The Commission misinterprets the expression ‘in proceedings’ in Articles 1 to 3 of Regulation No 2988/74 and fails to appreciate that its final decision has to take place before the expiry of the limitation period. Moreover, the Commission’s interpretation undermines the application of Article 2(3) of Regulation No 2988/74 and misunderstands the structure of that regulation in so far as the limitation implications which flow from a decision are dealt with in Articles 4 to 6, not in Articles 1 to 3. Lastly, such an interpretation is contrary to the principle that, in order to ensure legal certainty, the Commission must conclude its proceedings within a defined time period and the Commission’s final decision must be taken within an absolute maximum period of 10 years from the cessation of the infringement, except where the Commission has been prevented from concluding its investigations and procedures by reason of legal actions brought against preliminary decisions. In the present case, the Commission was not prevented from concluding its procedures.

63 The applicant takes the view that the approach in the judgment of the General Court in PVC II, paragraph 25 above, is inconsistent with the statement in paragraph 1098 of that judgment that the purpose of Article 3 of Regulation No 2988/74 is to enable the limitation period to be suspended where the Commission is prevented from acting for an objective reason not attributable to it. An action against a final decision to impose a fine does not prevent the Commission from acting, as that final decision is fully enforceable until such time as it is annulled or declared non‑existent by the Court.

64 In any event, the reasoning that the Commission was prevented from acting cannot, in the present case, be applied to the appeal brought against ICI II, paragraph 16 above. It was perfectly open to the Commission to retake Decision 91/300 immediately after delivery of the judgment in ICI II, paragraph 16 above. The further delay resulting from the Commission’s appeal was thus entirely ‘attributable’ to the Commission. Furthermore, that appeal was pointless in the light of the ruling in Case C‑137/92 P Commission v BASF and Others [1994] ECR I‑2555, and taking account of the Commission’s intention to retake Decision 91/300. Thus, the Commission cannot benefit from its ‘own procedural error’ and from the five‑year delay which it caused.

65 Moreover, the Commission’s interpretation is contrary to Article 60 of the Statute of the Court of Justice, according to which an appeal is not to have suspensory effect. According to the applicant, even if the duration of proceedings before the General Court should be taken into account, the limitation period is suspended only for a period of about 4 years, 1 month and 15 days. The Commission ought to have, therefore, adopted Decision 91/300 again before April 1999.

66 In addition, it is apparent from Article 3 of Regulation No 2988/74 that, in the event of an appeal, it is not the Commission’s decision which is the subject of the proceedings, but the judgment of the General Court.

67 Furthermore, in the judgment of the General Court in PVC II, paragraph 25 above, the issue whether the Commission’s appeal should be taken into account for any suspension of the limitation period was not specifically addressed, inasmuch as, in the case giving rise to that judgment, the Commission needed only to establish that the period of the proceedings before the General Court suspended the limitation period. Thus, the remarks of the General Court with regard to the effect of the appeal on the suspension of the limitation period were merely obiter dictum.

68 The applicant adds that a decision adopted by the Commission in contravention of its own internal Rules of Procedure cannot have the effect of extending the limitation period. The Commission did not correctly authenticate Decision 91/300. Therefore, that decision cannot have the effect of extending the Commission’s powers to impose fines beyond the normal limitation period laid down in Regulation No 2988/74. Such a result would not only be contrary to the principle that a party may not benefit from its own error but would be contrary to natural justice. The delay was entirely attributable to the Commission’s actions and it cannot, in any event, seek to take advantage of Article 3 of Regulation No 2988/74.

69 Lastly, the interpretation of Articles 2 and 3 of Regulation No 2988/74 in the judgment of the General Court in PVC II, paragraph 25 above, would enable the Commission to adopt a series of successive decisions extending into the latter half of the 21st century. Such an interpretation is therefore unlawful in so far as it infringes the right to judgment within a reasonable time.

70 The Commission disputes the arguments put forward by the applicant.

– Findings of the Court

71 As a preliminary point, it should be observed that Regulation No 2988/74 established a complete system of rules covering in detail the periods within which the Commission is entitled, without undermining the fundamental requirement of legal certainty, to impose fines on undertakings which are the subject of procedures under the competition rules (Case T‑213/00 CMA CGM and Others v Commission [2003] ECR II‑913, paragraph 324, and Case T‑410/03 Hoechst v Commission [2008] ECR II‑881, paragraph 223).

72 Thus, in accordance with Article 1(1)(b) and (2) and Article 2(3) of Regulation No 2988/74, the limitation period in proceedings expires if the Commission has not imposed a fine or a penalty within 5 years from the date on which it began to run where, during that time, no interruptive action is taken or, at the latest, within 10 years from the date on which it began to run where interruptive action has been taken. Nevertheless, pursuant to Article 2(3) of that regulation, the limitation period thus defined is extended by the time for which limitation is suspended pursuant to Article 3 (judgment of the Court of Justice in PVC II, paragraph 39 above, paragraph 140).

73 Under Article 3 of Regulation No 2988/74, the limitation period in proceedings is to be suspended for as long as the decision of the Commission is the subject of proceedings pending before the Court of Justice of the European Communities.

74 The reference in Article 3 of Regulation No 2988/74 to ‘proceedings pending before the Court of Justice of the European Communities’ must be understood, after the creation of the General Court (formerly the Court of First Instance), as referring, in the first place, to proceedings pending before the General Court since actions imposing sanctions or fines in the field of competition law come within its jurisdiction.

75 In the present case, the applicant does not dispute that, subject to the question of suspension of the limitation period pursuant to Article 3 of Regulation No 2988/74, the five-year limitation period would have expired in 1995.

76 Therefore, it is necessary to examine only whether, pursuant to Article 3 of Regulation No 2988/74, the Commission was entitled to adopt the contested decision on 13 December 2000.

77 In that regard, it follows from paragraph 157 of the judgment of the Court of Justice in PVC II, paragraph 39 above, that, for the purposes of Article 3 of Regulation No 2988/74, the limitation period is suspended for as long as the decision at issue [is] the subject of proceedings pending ‘before the [General] Court … and the Court of Justice’. Therefore, in the present case, the limitation period was suspended for the duration of the proceedings before the General Court and for the duration of the proceedings before the Court of Justice in the context of the appeal, and there is no need to rule on the period between the delivery of the General Court’s judgment and the appeal to the Court of Justice.

78 Following the action brought by the applicant before the General Court on 14 May 1991, the judgment delivered on 29 June 1995, then the appeal before the Court of Justice brought by the Commission on 30 August 1995 and the judgment delivered on 6 April 2000, the limitation period was suspended for a minimum period of 8 years, 8 months and 22 days, as the Commission correctly states in recital 171 of the contested decision.

79 Consequently, following that suspension of the limitation period, a period of five years has not expired, in the present case, between the end of the infringements at issue or any interruption to the limitation period and the adoption of the contested decision on 13 December 2000.

80 Therefore, the contested decision was adopted in compliance with the limitation rules established in Regulation No 2988/74.

81 None of the arguments put forward by the applicant can invalidate that finding.

82 First, it cannot in any way be inferred from the wording of Articles 2 and 3 of Regulation No 2988/74 that the ‘decision of the Commission’, referred to in Article 3, which is the subject of judicial proceedings before the Courts of the European Union suspending the limitation period can only be one of the acts referred to in Article 2 as interrupting that limitation period, or that the list of those acts is exhaustive (judgment of the Court of Justice in PVC II, paragraph 39 above, paragraph 141). Article 3 protects the Commission against the effect of the limitation period in situations in which it must await the decision of the Courts of the European Union in proceedings beyond its control before knowing whether the contested act is or is not vitiated by illegality. Article 3 therefore deals with cases in which the inaction of the institution is not the result of a lack of diligence. Such situations arise both in the case of actions against the interruptive measures listed in Article 2 of Regulation No 2988/74 which are open to challenge and in the case of an action against a decision imposing a fine or penalty. Accordingly, the wording and the purpose of Article 3 cover both actions brought against the challengeable measures referred to in Article 2 and actions brought against a final decision of the Commission. Consequently, an action brought against a final decision imposing penalties suspends the limitation period in proceedings pending delivery by the Courts of the European Union of a final ruling on that action (judgment of the Court of Justice in PVC II, paragraph 39 above, paragraphs 144 to 147).

83 Second, the applicant claims that the introduction of an action challenging a decision imposing a fine in no way prevents the Commission from adopting a decision of that kind. However, were that interpretation to be upheld, it would mean that the institution would withdraw the contested decision in order to replace it with another decision taking account of the aspects challenged. It would effectively deny the Commission the very right to have the Courts of the European Union establish, where appropriate, the legality of the contested decision (see, to that effect, judgment of the Court of Justice in PVC II, paragraph 39 above, paragraph 149).

84 Third, the applicant cannot argue that a decision imposing penalties is fully enforceable until it has been judicially annulled. By definition, measures to enforce a decision penalising an infringement cannot be regarded as acts relating to the preliminary investigation of, or the taking of action against, an infringement. Such measures, the legality of which is, moreover, dependent on that of the decision which is the subject of the action, cannot therefore interrupt the limitation period in the event of annulment of a judicially contested decision (see, to that effect, judgment of the Court of Justice in PVC II, paragraph 39 above, paragraph 150).

85 Fourth, it must be pointed out that Article 60 of the Statute of the Court of Justice and Article 3 of Regulation No 2988/74 are different in scope. The fact that an appeal does not have suspensory effect does not deprive Article 3 of Regulation No 2988/74 – which concerns situations in which the Commission must await the decision of the Courts of the European Union – of all effect. The applicant’s claim that the Commission ought not to have taken account of the period during which an appeal was pending before the Court of Justice cannot therefore be upheld, since the result would be to deprive the judgment of the Court of Justice on appeal of its raison d’être and effects.

86 Fifth, the applicant cannot claim that, following the annulment of Decision 91/300 on the ground that it had not been authenticated, the Commission cannot benefit from its own error by imposing a fine after the expiry of the five‑year limitation period laid down in Regulation No 2988/74. Any annulment of a measure which the Commission has adopted is necessarily imputable to it, in the sense that it reveals an error on the Commission’s part. Therefore, to exclude suspension of the limitation period where the action leads to recognition of an error imputable to the Commission would deprive Article 3 of the regulation of all meaning. It is the very fact that an action is pending before the General Court or the Court of Justice which justifies the suspension, and not the conclusions reached by those courts in their judgment (see, to that effect, judgment of the Court of Justice in PVC II, paragraph 39 above, paragraph 153).

87 Sixth, in an action for annulment the General Court must examine whether the contested act is or is not vitiated by illegality (see, to that effect, judgment of the Court of Justice in PVC II, paragraph 39 above, paragraph 144).

88 Seventh, the interpretation of Article 3 of Regulation No 2988/74 proposed by the applicant would lead to serious practical difficulties. If the Commission had to adopt a new decision following the annulment of a decision by the General Court without awaiting the judgment of the Court of Justice, there is a risk that there would be two co‑existing decisions having the same subject‑matter in the event that the Court of Justice were to set aside the judgment of the General Court.

89 Eighth, it is contrary to the requirements of economy of administrative procedure to require the Commission, with the sole aim of avoiding the lapse of the limitation period, to adopt a new decision before knowing whether the initial decision is or is not vitiated by illegality.

90 It follows from all of the foregoing that the first part of the first plea must be rejected.

Second part: breach of the principle that action must be taken within a reasonable time

– Arguments of the parties

91 The applicant asserts that, irrespective of the issues of limitation, the passage of time since the alleged infringements affects the Commission’s power to take the whole of the contested decision, and not just that part relating to fines.

92 Referring to paragraph 121 of the judgment of the General Court in PVC II, paragraph 25 above, and to the principle that action must be taken within a reasonable time, the applicant is of the opinion that it is necessary to examine whether the Commission adopted the contested decision within a reasonable time after the end of the administrative proceedings relating to competition policy.

93 According to the applicant, it may be presumed that the Commission has breached the principle that action must be taken within a reasonable time when more than 11 years 6 months have passed between the opening of the investigation and the adoption of the contested decision in a case.

94 The applicant notes that, while the proceedings before the General Court and those before the Court of Justice lasted 105 months in total, the Commission devoted 35 months to the adoption of its decision, including 9 months between the judgment in Commission v ICI, paragraph 19 above, and the contested decision. Moreover, it is legitimate to take into account the duration of the judicial proceedings, in particular where those proceedings concern a different decision and pre‑date the contested decision.

95 According to the applicant, the part of the delay attributable to the appeal to the Court of Justice is unacceptable. Following the judgments in ICI II, paragraph 16 above, and Commission v BASF and Others, paragraph 64 above, the Commission was aware that Decision 91/300 was vitiated because of a failure to authenticate. If the Commission was intending to adopt a new decision, it should have done so at that stage, instead of bringing an appeal before the Court of Justice which has had the effect of delaying the adoption of the decision by five and a half years.

96 Referring to the judgment of the European Court of Human Rights in Garyfallou AEBE v. Greece of 27 September 1997 (Reports of Judgments and Decisions 1997‑V, p. 1821), the applicant considers that it is necessary to examine the proceedings in their entirety to determine whether the matter has been decided upon within a reasonable time.

97 In addition, the applicant contends that the time which has passed since the alleged infringements has prevented it from fully exercising its rights of defence. First, it points out that it sold its soda ash business to an independent buyer on 6 October 1991 and is no longer active on the market for soda ash in the United Kingdom. Next, it claims that the members of its staff responsible for these matters at the time have left and they are no longer available to give it the necessary assistance. Furthermore, the passage of time since the alleged infringements increases its financial loss, for example by adding to the costs incurred in relation to guarantee charges and/or the effects of interest rates. In any event, the judgment of the General Court in PVC II, paragraph 25 above, is contrary to the case‑law of the European Court of Human Rights, according to which protection under Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’), is not dependent upon it being proved that the delay caused actual harm to the interests of an applicant. Breach of a primary ECHR obligation can result only in the annulment of the contested decision and not merely in the payment of compensation and interest.

98 The Commission disputes the arguments put forward by the applicant.

– Findings of the Court

99 As a preliminary point, it should be recalled that in competition matters the principle that action must be taken within a reasonable time must be observed in administrative proceedings pursuant to Regulation No 17 which may lead to the penalties provided for therein, and must also be observed in judicial proceedings (judgment of the Court of Justice in PVC II, paragraph 39 above, paragraph 179).

100 In the first place, the applicant claims that the duration of the administrative procedure, taken as a whole, that is to say from the commencement of the investigation to the adoption of the contested decision, exceeded a reasonable time.

101 That argument must be rejected.

102 When a complaint alleging infringement of the principle that action must be taken within a reasonable time is being examined, a distinction must be drawn between the administrative procedure and judicial proceedings. Thus, the period during which the Courts of the European Union examined the legality of Decision 91/300 and the validity of the judgment in ICI II, paragraph 16 above, cannot be taken into account in determining the duration of the procedure before the Commission (see, to that effect, judgment of the General Court in PVC II, paragraph 25 above, paragraph 123).

103 Second, the applicant criticises the duration of the administrative procedure between the delivery of the judgment in Commission v ICI, paragraph 19 above, and the adoption of the contested decision.

104 In that regard, it should be borne in mind that that period began on 6 April 2000, the date on which the judgment in Commission v ICI, paragraph 19 above, was delivered, and ended on 13 December 2000 with the adoption of the contested decision. That stage in the administrative procedure thus lasted eight months and seven days.

105 During that period, the Commission merely made a number of formal amendments to Decision 91/300, in particular by inserting a new passage on ‘Proceedings before the Court of First Instance and Court of Justice’ concerning the assessment of compliance with the limitation period. Nor was the adoption of the contested decision preceded by any additional measure of investigation, as the Commission relied on the results of the investigation undertaken 10 years earlier. It must be acknowledged, however, that, even in those circumstances, some checks and consultations within the administration may prove essential for the purposes of arriving at such an outcome.

106 From that perspective, the period of eight months and seven days between the delivery of the judgment in Commission v ICI, paragraph 19 above, and the adoption of the contested decision cannot be considered unreasonable.

107 Third, the applicant criticises, in essence, the duration of the administrative procedure which led to the adoption of Decision 91/300 (see paragraph 94 above).

108 However, if the duration of the administrative procedure from the time of the statement of objections is taken into account together with the duration of the procedure before then (see, in that regard, Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I‑8725, paragraph 51), it must be noted that that period is not excessively long, in the light of the investigations carried out from April 1989, the requests for information which followed and the initiation of the proceeding by the Commission, on its own initiative, on 19 February 1990. In those circumstances, the duration of the administrative procedure which led to the adoption of the Decision 91/300 cannot be regarded as unreasonable.

109 It must be added that, in any event, a breach of the principle that action must be taken within a reasonable time would justify the annulment of a decision taken following an administrative proceeding in competition matters 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 action must be taken within a reasonable time cannot affect the validity of the administrative procedure (see, to that effect, judgment of the General Court in PVC II, paragraph 25 above, paragraph 122).

110 In that regard, the applicant claims that it has been difficult for it to exercise its rights of defence because it sold its soda ash business to an independent buyer on 6 October 1991, is no longer active on the market for soda ash in the United Kingdom, and is unable to contact those members of its staff responsible for these matters at the time for the necessary assistance, as they have left the undertaking.

111 Nevertheless, it should be observed that the Commission did not carry out any measure of inquiry between the delivery of the judgment in Commission v ICI, paragraph 19 above, and the adoption of the contested decision.

112 Therefore, as compared with the first period which led to Decision 91/300 and which presented no problems with regard to exercising the rights of the defence there was no new evidence taken into account by the Commission which required the rights of the defence to be exercised.

113 In those circumstances, the applicant’s rights of defence have not been infringed.

114 Fourth, as regards the judicial proceedings, it is necessary to bear in mind that the general principle of Community law that everyone is entitled to a fair hearing, which is inspired by Article 6(1) of the ECHR, and in particular the right to legal process within a reasonable period, is applicable in the context of proceedings brought against a Commission decision imposing fines on an undertaking for infringement of competition law. The reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities. That list of criteria is not exhaustive and the assessment of the reasonableness of a period does not require a systematic examination of the circumstances of the case in the light of each of them, where the duration of the proceedings appears justified in the light of one of them. Thus, the complexity of the case may be deemed to justify a duration which is prima facie too long (see Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I‑729, paragraphs 115 to 117 and the case‑law cited).

115 Furthermore, in Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, after having found that the General Court had misconstrued the requirements connected with respect for the principle that action must be taken within a reasonable time, the Court of Justice, for reasons of procedural economy and in order to guarantee an immediate and effective remedy against such unlawfulness in the procedure, upheld the plea alleging that the duration of the procedure was unreasonable and annulled the judgment under appeal in that case in so far as it set the amount of the fine imposed on the appellant at ECU 3 million. In the absence of any evidence that the duration of the procedure had had an impact on the outcome of the case, the Court held that that plea could not lead to the annulment of the judgment under appeal in its entirety, but that an amount of ECU 50 000 would represent just satisfaction, on account of the unreasonable duration of the procedure and thus reduced the amount of the fine imposed on the undertaking concerned.

116 Consequently, in the absence of any evidence that the duration of the procedure has had an impact on the outcome of the case, the possibility that the Court in the present case may have taken longer than a reasonable time, were that to be established, would have no effect on the lawfulness of the contested decision (that approach was upheld in paragraph 140 of the judgment of the General Court of 17 December 2009 in Case T‑57/01 Solvay v Commission, not published in the ECR).

117 It should be added that, in its application, the applicant has not made a request for compensation.

118 Therefore, the second part of the first plea and, accordingly, the first plea as a whole must be rejected.

Second plea: infringement of essential procedural requirements

119 The second plea comprises, in essence, five parts: first, unlawful nature of the preparatory steps taken for Decision 91/300, second, unreasonable delay between the administrative procedure and the adoption of the contested decision, third, the requirement to take fresh procedural steps, fourth, infringement of the right of access to the file and, fifth, infringement of Article 253 EC.

First part: unlawful nature of the preparatory steps taken for Decision 91/300

– Arguments of the parties

120 The applicant submits that the procedural steps taken by the Commission prior to the adoption of a decision represent merely preparatory steps, and are not in themselves capable of forming the subject‑matter of an action for annulment. It follows from the accessory nature of those procedural steps prior to the adoption of that decision that, contrary to what is stated in the judgment of the General Court in PVC II, paragraph 25 above, the annulment of that decision must also bring about the annulment of those procedural steps prior to the adoption of that decision. In the present case, the Commission could not therefore rely on the administrative procedure prior to Decision 91/300 as constituting the necessary procedural steps for the adoption of the contested decision.

121 Moreover, according to the applicant, the Commission initiated a single administrative procedure covering the alleged infringements of Articles 81 EC and 82 EC. The two cases were separated only at the stage of the adoption of Decisions 91/297 and 91/300. The applicant also recalls that, in ICI I, paragraph 17 above, the General Court held that the rights of the defence had been infringed during the administrative procedure. That finding had consequences for Decision 91/300, since the Commission followed exactly the same procedure. Thus, the General Court ought, in ICI II, paragraph 16 above, to have annulled Decision 91/300 on grounds of infringement of the rights of the defence.

122 In its reply, the applicant adds that, in ICI II, paragraph 16 above, the General Court was highly critical of the Commission’s approach to analysing the relevant market, which consisted in separating out the evidence relating to the Article 81 EC allegations and the Article 82 EC allegations, and conducting separate procedures.

123 The Commission disputes the arguments put forward by the applicant.

– Findings of the Court

124 As a preliminary point, it should be borne in mind that Decision 91/300 was annulled because of a procedural defect, namely the failure to authenticate, which concerned solely the definitive adoption of that decision by the Commission.

125 According to settled case‑law, annulment of a Community measure does not necessarily affect the preparatory acts, since the procedure for replacing such a measure may, in principle, be resumed at the very point at which the illegality occurred (Case C‑415/96 Commission v Spain [1998] ECR I‑6993, paragraphs 31 and 32, and judgment of the Court of Justice in PVC II, paragraph 39 above, paragraph 73).

126 In the present case, since the procedural defect occurred at the final stage of adoption of Decision 91/300, the annulment did not affect the validity of the measures preparatory to that decision which were taken before the stage at which the defect was found (see, to that effect, judgment of the Court of Justice in PVC II, paragraph 39 above, paragraph 75).

127 In addition, as regards the applicant’s argument that in ICI I, paragraph 17 above, the General Court annulled Decision 91/297 on the grounds of infringement of the rights of the defence, it should be remembered that in ICI II, paragraph 16 above, which underlies the present case, the General Court also carried out a detailed examination of the plea alleging infringement of the rights of the defence and rejected it in its entirety (see paragraph 73 of ICI II). The Court of Justice subsequently dismissed the appeal brought against that judgment.

128 Moreover, even if the administrative file is common to cases COMP/33.133, Decisions 91/297 and 91/300 concern different types of infringements, on two different markets. An infringement of the rights of the defence must be examined in relation to the specific circumstances of each particular case, since it depends essentially on the objections raised by the Commission in order to prove the infringement which the undertaking concerned is alleged to have committed (ICI I, paragraph 17 above, paragraph 70, and ICI II, paragraph 16 above, paragraph 50; see, also, Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 127).

129 Therefore, the first part of the second plea must be rejected.

Second part: undue delay between the administrative procedure and the adoption of the contested decision

– Arguments of the parties

130 The applicant claims that a period of 10 years elapsed between the procedural steps prior to the adoption of Decisions 91/297 and 91/300, on the one hand, and the contested decision, on the other, which is a denial of protection of the rights of the defence. According to it, undertakings must be given the opportunity to express their views and defend their interests effectively. It follows that decisions, in particular decisions imposing fines, may be adopted only within a reasonable time of the opportunity given to the undertakings to comment, which did not occur in the present case.

131 The Commission disputes the arguments put forward by the applicant.

– Findings of the Court

132 In the first place, as indicated in the context of the examination of the first part of the first plea, the limitation period laid down in Article 3 of Regulation No 2988/74 was suspended for the duration of the proceedings before the General Court and the Court of Justice following the lodging of an appeal against the judgment in ICI II, paragraph 16 above. Therefore, the Commission cannot be criticised for awaiting the rulings of the General Court and the Court of Justice before adopting the contested decision. In that regard, the fact that the Commission did not adopt the contested decision during the proceedings before the General Court and the Court of Justice is justified by respect for judicial proceedings and future judgments.

133 Second, as is apparent from the examination of the second part of the first plea, the Commission did not breach the principle that action must be taken within a reasonable time by adopting the contested decision on 13 December 2000.

134 Third, it follows from the examination of the third part of the second plea, carried out hereafter (paragraphs 151, 153 and 168), that the Commission was not required, in the present case, to take fresh procedural steps following the annulment of Decision 91/300 because of a procedural defect which concerned solely the means of definitively adopting that decision.

135 Therefore, the Commission cannot be criticised for not having given the applicant the opportunity to put forward its arguments again following the annulment of Decision 91/300.

136 Consequently, the second part of the second plea must be rejected.

Third part: requirement to take fresh procedural steps

– Arguments of the parties

137 The applicant maintains that the Commission should have taken fresh procedural steps prior to the adoption of the contested decision.

138 First, the applicant claims that the Commission should have sent it a new statement of objections. According to it, the allegations contained in the statement of objections served in 1990 were made in the context of ‘the allegation that the “separation of the markets” between the United Kingdom and Continental Western Europe and the “home market” principle arose as a result of an agreement or a concerted practice between Solvay and [the applicant]’. The applicant points out that the Commission’s decision on that cartel was annulled by the General Court and that it has no longer been pursued in that regard. Therefore, the applicant is of the opinion that it was entitled to receive, prior to the adoption of the contested decision, a statement of objections which did not repeat the allegation of concertation. That statement of objections should also have set out the Commission’s objections in the light of the development of the law between 1990 and 2000, in particular with reference to the definition of the relevant market.

139 Second, the applicant maintains that the Commission should have arranged another hearing and given it the opportunity to set out its arguments. The applicant takes the view that, in the judgment of the General Court in PVC II, paragraph 25 above, the Court could not rely on the fact that no new objections were made. Undertakings must be given the opportunity to comment on any objections made against them, in particular in the light of new matters which might be relevant to their defence.

140 According to the applicant, the right to be heard concerns not only matters of fact, but also matters of law, as the General Court recognised in ICI I, paragraph 17 above, and the judgment of the General Court in PVC II, paragraph 25 above. Moreover, in Case C‑261/89 Italy v Commission [1991] ECR I‑4437, and Case C‑294/90 British Aerospace and Rover v Commission [1992] ECR I‑493, the Court of Justice acknowledged that the right to be heard applies before the adoption of a second decision that is substantially the same as the first decision. In the present case, a number of factors, namely the fact that the applicant left the relevant market in 1991, the annulment of Decision 91/297 and the findings in the anti‑dumping decisions in the 90s, have a bearing on how the objections should be considered.

141 In addition, the right to be heard anew is evident from the Rules of Procedure of the General Court. Where the Court of Justice remits a case to the General Court for decision, Article 119(1) of the Rules of Procedure gives the parties a right to lodge further observations, notwithstanding that the written procedure would ordinarily have been considered to be complete. In the same way, Article 4 of Protocol 7 to the ECHR provides that, following a prior final decision, a new decision may only be taken where the case is reopened in accordance with the law and penal procedure of the State concerned.

142 The applicant infers therefrom that the General Court erred in law in finding that the rights of the defence had been adequately protected by the opportunities given to the applicant to be heard during the administrative procedure.

143 Third, the applicant notes the essential role of the Hearing Officer in ensuring that, before any decision is taken, the parties concerned have been able to fully exercise their rights of defence and that the essential matters of fact or law raised by them are communicated to the Director General for Competition, to the Members of the Commission and to the Advisory Committee. It also claims that, as its rights of defence imply an opportunity to be heard again prior to the adoption of the contested decision, it was equally entitled to, and was wrongly denied, the involvement of the Hearing Officer.

144 Fourth, the applicant considers that, taking account of the fact that it was entitled to be heard anew before the adoption of the contested decision, the Commission should also have consulted the Advisory Committee again. In the judgment of the General Court in PVC II, paragraph 25 above, the General Court was wrong to hold that consultation with the Advisory Committee was necessary only in situations where the undertakings had to be heard. In addition, it follows from Regulation No 17 that a separate consultation is required for each separate decision, regardless of whether the undertakings have also been heard, and regardless of the similarity between the decisions. Consequently, even if the contested decision had contained only editorial amendments to Decision 91/300, the Commission should have consulted the Advisory Committee again before adopting the contested decision. Furthermore, the composition of the Advisory Committee would undoubtedly have changed substantially and the views of the Committee in 2000 would not necessarily coincide with the views expressed in 1990.

145 Fifth, the applicant claims that, in adopting the contested decision, the College of Commissioners should have had the opportunity to consider all the relevant facts, circumstances and legal matters at that time. It was denied that opportunity as a result of the failure of the Commission either to hear from the undertakings again or to consult the Advisory Committee again. The applicant infers that if the College of Commissioners had known all the facts, it might not have arrived at the same decision.

146 Sixth, the applicant points out that the Commission’s spokesperson, whose words are reproduced in the Reuters’ press release of 12 December 2000, indicated that the contested decision would be adopted at the College of Commissioners’ meeting of 13 December 2000. It follows from those words that the contested decision had already been adopted before that meeting, in contravention of the Commission’s internal Rules of Procedure and the principle of collegiality.

147 Lastly, the applicant requests the Court to order the production of the file submitted to the College of Commissioners and of the minutes of the meeting and all annexed documents.

148 The Commission disputes the arguments put forward by the applicant.

– Findings of the Court

149 First, the applicant claims, in essence, that it ought to have received a new statement of objections in 2000, since the allegations contained in the statement of objections which was sent to it in 1990 were based on a ‘separation of the markets’, which was the result of an agreement or concerted practice between Solvay and the applicant and which was penalised in Decision 91/297, a decision which had then been annulled by ICI I, paragraph 17 above.

150 However, as is apparent from paragraph 126 above, the annulment of Decision 91/300 does not affect the validity of prior procedural steps and, in particular, the statement of objections.

151 The Commission was not therefore, as a result of that annulment alone, required to send a new statement of objections to the applicant.

152 Furthermore, in the context of the statement of objections which was sent to the applicant in 1990, the Commission had set out a number of objections, and the complaints which alleged infringement of Article 81 EC, on the one hand, and of Article 82 EC, on the other, were autonomous and based on different evidence. Accordingly, the fact that the General Court annulled Decision 91/297 for infringement of the right of access to the file cannot cast doubt on the complaint that the applicant abused its dominant position on the relevant market.

153 Second, as regards the applicant’s argument that the Commission should have heard it again, it should be borne in mind that, where, following the annulment of a decision imposing sanctions on undertakings which have infringed Article 82 EC on account of a procedural defect concerning exclusively the procedures governing its final adoption by the College of Commissioners, the Commission adopts a new decision, having substantially the same content and based on the same objections, it is not required to conduct a new hearing of the undertakings concerned (see, to that effect, judgment of the General Court in PVC II, paragraph 25 above, paragraphs 246 to 253, upheld by judgment of the Court of Justice in PVC II, paragraph 39 above, paragraphs 83 to 111).

154 As for questions of law which may arise in the context of the application of Article 233 EC, such as those relating to the passage of time, the possibility of resuming proceedings, the access to the file required on resumption of proceedings, the intervention of the Hearing Officer and the Advisory Committee, and the possible implications of Article 20 of Regulation No 17, they do not render a new hearing necessary either, since they do not alter the substance of the objections, being at most amenable to subsequent judicial review (see, to that effect, judgment of the Court of Justice in PVC II, paragraph 39 above, paragraph 93).

155 In the present case, the Commission repeated virtually the entire content of Decision 91/300. It supplemented the contested decision solely by a passage concerning the proceedings before the General Court and the Court of Justice.

156 Therefore, it must be held that the contested decision and Decision 91/300 have substantially the same content and are based