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 A/S and Others

v

Commission of the European Communities





«(Appeal – Competition – Cement market – Article 85(1) of the EC Treaty (now Article 81(1) EC) – Jurisdiction of the Court of First Instance – Rights of the defence – Access to the file – Single and continuous infringement – Liability for an infringement – Evidence of participation in the general agreement and measures of implementation – Fine – Determination of the amount)»

Opinion of Advocate General Ruiz-Jarabo Colomer delivered on 11 February 2003 in Case C-204/00 P

Opinion of Advocate General Ruiz-Jarabo Colomer delivered on 11 February 2003 in Case C-205/00 P

Opinion of Advocate General Ruiz-Jarabo Colomer delivered on 11 February 2003 in Case C-211/00 P

Opinion of Advocate General Ruiz-Jarabo Colomer delivered on 11 February 2003 in Case C-213/00 P

Opinion of Advocate General Ruiz-Jarabo Colomer delivered on 11 February 2003 in Case C-217/00 P

Opinion of Advocate General Ruiz-Jarabo Colomer delivered on 11 February 2003 in Case C-219/00 P

Judgment of the Court (Fifth Chamber), 7 January 2004

Summary of the Judgment

1.. Appeals – Pleas in law – Incorrect assessment of the facts – Inadmissible – Review by the Court of Justice of assessment of the evidence – Excluded unless the sense of the evidence has been distorted

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

2.. Appeals – Pleas in law – Plea alleging distortion of evidence – Plea reproducing verbatim the arguments put forward before the Court of First Instance – Inadmissible

(Art. 225 EC; EC Statute of the Court of Justice, Art. 51; Rules of Procedure of the Court of Justice, Art. 112(1)(c))

3.. Competition – Community rules – Infringements – Liability – Criterion known as the economic continuity of the undertaking – Liability of a newly-formed company for an infringement by another company which has not ceased to exist – Admissible in view of the links between the capital of the two companies

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

4.. Competition – Administrative procedure – Observance of the rights of the defence – Request for information addressed to an undertaking – Right to refuse to provide an answer which might involve an admission of infringement – Request addressed to an association of undertakings – Right to refuse to testify against its members – None

(Council Regulation No 17, Art. 11)

5.. Competition – Administrative procedure – Statement of objections – Provisional nature – Dropping of objections which prove to be unfounded – Obligation for the Commission to inform those concerned by means of a supplementary statement of objections – None

(Council Regulation No 17, Art. 19; Commission Regulation No 99/63, Art. 2)

6.. Competition – Administrative procedure – Inapplicability of Article 6 of the European Convention on Human Rights – Observance by the Commission of procedural guarantees – Adversarial principle – Scope – Limits – Right of the undertaking to question the authors of the incriminating documents – None

7.. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Scope – Refusal to communicate a document – Consequences – Need at the level of the burden of proof borne by the undertaking concerned to draw a distinction between incriminating documents and exculpatory documents

8.. Competition – Agreements, decisions and concerted practices – Participation by an undertaking in an anti-competitive initiative – Tacit approval by an undertaking without publicly distancing itself or reporting to the competent authorities sufficient to render it liable

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

9.. Competition – Fines – Amount – Determination – Criteria – Gravity and duration of the infringement – Infringement by a number of undertakings – Relative gravity of the participation of each of them

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

10.. Competition – Administrative procedure – Breach of the rights of the defence – Lack of proper access to the file – Access ensured during the judicial procedure – Remedy – None

11.. Appeals – Pleas in law – Plea challenging the assessment by the Court of First Instance of the existence of a breach of the rights of the defence during a procedure in application of the competition rules – Admissible

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

12.. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Determination by the Commission alone of the documents of use to the defence – Not permissible – Exclusion from the case-file of the documents with no objective connection to the allegations in the statement of objections – Permissible

13.. Competition – Agreements, decisions and concerted practices – Prohibition – Infringements – Agreements and concerted practices capable of being approached as constituting a single infringement – Imputation of liability to an undertaking owing to its participation in the infringement considered as a whole notwithstanding its limited role – Permissible

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

14.. Competition – Administrative procedure – Commission decision finding an infringement adopted after the decision of a national competition authority concerning the same undertaking – No identity between the infringements giving rise to the two decisions – Breach of the principle ne bis in idem – None

15.. Appeal – Pleas in law – Insufficient reasoning – Recourse by the Court of First Instance to implicit reasoning – Permissible – Conditions

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

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.