OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 14 April 2011 ( )

Case C‑109/10 P

Solvay SA

v

European Commission

(Appeals – Competition – Abuse of a dominant position (Article 82 EC) – Fidelity rebate – Discrimination against business partners – Rights of the defence – Access to the file – Loss of documents in the administrative procedure – Right to a hearing – Prohibition on the use of evidence (Article 20(1) of Regulation No 17) – Right to have a matter adjudicated upon within a reasonable time – Excessive length of the proceedings – European market for soda ash)









Table of contents





I – Introduction

II – Background to the dispute

III – Procedure before the Court of Justice

IV – Claim that the judgment under appeal should be set aside

A – Certain points of law concerning the application of Article 82 EC (sixth, seventh, eighth and ninth pleas in law)

1. Preliminary remarks

2. Definition of the relevant geographic market (sixth plea in law)

a) First part of the sixth plea in law

b) Second part of the sixth plea in law

c) Certain further arguments in connection with the sixth plea in law

d) Interim conclusion

3. Solvay’s dominant position (seventh plea in law)

a) Solvay’s references to its sixth plea in law

b) Dominant position on national markets (second part of the seventh plea in law)

i) Allegation that the General Court’s analysis is confined to market shares alone

ii) Alleged failure to take into account a number of Solvay’s arguments

iii) Allegation of insufficient evidence of the market share

c) Allegation of exceptional circumstances (third part of the seventh plea in law)

i) Requirements relating to the statement of reasons in the judgment under appeal

ii) Requirements relating to the statement of reasons in the contested decision

iii) Alleged infringement of Article 102 TFEU (Article 82 EC)

d) Interim conclusion

4. Abuse of the dominant position held by Solvay (eighth and ninth pleas in law)

a) Group rebate granted to Saint-Gobain (eighth plea in law)

i) Argument as to the absence of any exclusivity commitment

ii) Argument as to the low value of the group rebate

iii) Argument as to the absence of any impact on competition

iv) Interim conclusion

b) Discriminatory nature of Solvay’s business practices (ninth plea in law)

i) First part of the ninth plea in law

– Alleged distortion of Solvay’s written pleadings

– Error of substantive law

ii) Second part of the ninth plea in law

– Alleged distortion of Solvay’s pleadings

– Failure to state reasons

iii) Interim conclusion

B – Prohibition on the use of evidence obtained in the investigation of April 1989 (second plea in law)

1. Admissibility of the second plea in law

2. Merits of the second plea in law

a) First and second parts of the second plea in law (infringement of Article 14(3) and Article 20(1) of Regulation No 17).

b) Third part of the second plea in law (complaint of distortion of facts)

c) Interim conclusion

C – Rights of the defence (third, fourth and fifth pleas in law)

1. Right of access to the file (third and fourth pleas in law)

a) Admissibility of the third and fourth pleas in law

b) The documents from the file which were accessible only before the General Court (fourth plea in law)

i) First part of the fourth plea in law

ii) Second part of the fourth plea in law

iii) Interim conclusion

c) Loss of parts of the file (third plea in law)

2. Right to a hearing (fifth plea in law)

a) First part of the fifth plea in law

b) Second part of the fifth plea in law

c) Interim conclusion

D – Right to have a matter adjudicated upon within a reasonable time (first plea in law)

1. Requirements attaching to an assessment of the length of the proceedings (first and second parts of the first plea in law)

a) The preliminary question of whether Solvay’s complaints are ineffective

b) Need for an overall assessment of the length of the proceedings (first part of the first plea in law)

c) Alleged failure to state reasons (second part of the first plea in law)

2. Legal consequences of excessively long proceedings (third to fifth parts of the first plea in law)

a) Requirement that the rights of the defence must be infringed (third part of the first plea in law)

b) Impact of the length of the proceedings on Solvay’s ability to defend itself in this case (fourth part of the first plea in law)

i) Alleged failure to state reasons

ii) Alleged error of substantive law

iii) Some additional complaints

iv) Interim conclusion

c) Alleged waiving by Solvay of a reduction in the fine (fifth part of the first plea in law)

3. Interim conclusion

E – Setting aside of the judgment under appeal

F – Decision on the action at first instance

1. Right of access to the file

2. Right to a hearing

3. Right to have a matter adjudicated upon within a reasonable time

4. Interim conclusion

V – Application for a reduction of the fine

A – Preliminary remark

B – Reduction of the fine

1. Excessive length of the administrative and judicial proceedings

2. Extent of the reduction in the fine

VI – Costs

VII – Conclusion

I – Introduction

1. Whether time really does heal all wounds, as the old saying goes, may seriously be called into question in the light of the present dispute. This case has been occupying the European administrative and judicial authorities for over 20 years now. Generations of lawyers have worked on it. Documents have disappeared and the court proceedings have dragged on for years.

2. This dispute traces its beginnings back to the 1980s. The European Commission accused the Belgian undertaking Solvay, among others, of abusing its dominant position on the market for soda ash ( ) from 1983 to 1990. Accordingly, the Commission made two attempts (in 1990 and 2000) to impose a fine on Solvay, against which Solvay has so far managed to defend itself before the courts.

3. This is the second time that the Court of Justice has dealt with this case in its appellate jurisdiction. In addition to numerous other issues, the dispute between the parties to the proceedings now centres essentially on points of law which are of fundamental significance, one of which concerns the right of access to the file and the other the principle that proceedings must take place within a reasonable time.

4. First, Solvay complains that it was not granted due access to the file and that, as a result, its rights of defence have been infringed. In this connection, the Court is faced with the question of how to assess the fact that the Commission can no longer find some of the documents relating to the administrative procedure.

5. Secondly, Solvay claims that the administrative and judicial proceedings in this case were excessively long. This, it contends, constitutes an infringement of its fundamental right to have its case adjudicated upon within a reasonable time, which infringement calls for an effective penalty.

6. In parallel to the present appeal proceedings, Solvay has also raised the complaint as to the excessive length of the proceedings in an application to the European Court of Human Rights (ECtHR) which is directed against all 27 Member States of the European Union and is based on an alleged infringement of Article 6(1) of the ECHR. ( ) ( )

II – Background to the dispute

7. As the General Court has established, ( ) in April 1989, the European Commission carried out unannounced searches (investigations), provided for in Article 14 of Regulation No 17, ( ) at the premises of a number of undertakings operating in the soda ash market, including the Belgian undertaking Solvay. ( ) It subsequently obtained additional information from the undertakings concerned.

8. Following the conclusion of its enquiries, the Commission accused Solvay, on the one hand, of participating in cartels and, on the other hand, of abusing its dominant position on the soda ash market.

9. The present proceedings are concerned only with the Commission’s finding of abuse of a dominant position on the market. ( ) On the basis of that finding, in 1990, in an initial decision pursuant to Article 86 of the EEC Treaty in conjunction with Regulation No 17 (Decision 91/299/EEC ( )), the Commission imposed on Solvay a fine equivalent to EUR 20 million, ( ) which was a relatively high sum for the time. However, as that decision was vitiated by a procedural defect relating to its authentication, it had to be annulled. ( ) Thereafter, in 2000, the Commission, without taking any further procedural steps ( ) – in particular, without hearing Solvay again – adopted a second decision, this time on the basis of Article 82 EC in conjunction with Regulation No 17, in which it again imposed on Solvay a fine in the same amount (Decision 2003/6/EC). ( ) The latter decision constitutes the starting point for these judicial proceedings.

10. At first instance, Solvay had only marginal success with its action for annulment against Decision 2003/6. It is true that, by judgment of 17 December 2009, the General Court reduced the amount of the fine by 5% to EUR 19 million. However, it dismissed the remainder of Solvay’s action as unfounded. ( ) By the present appeal, Solvay ( ) is now contesting that judgment at first instance, which took no less than eight years and nine months to deliver.

11. Chronologically, the most important stages in the dispute so far may be summarised as follows:

– Administrative proceedings up to the adoption of the first decision imposing a fine

April 1989: Investigations by the Commission

March 1990: Notification of the statement of objections

December 1990: Commission Decision 91/299 imposing a fine

– Judicial proceedings relating to the annulment of the first decision imposing a fine

May 1991: Action for annulment brought by Solvay before the General Court (T‑32/91)

June 1995: Annulment of Decision 91/299

August 1995: Appeal by the Commission (C‑288/95 P)

April 2000: Dismissal of the appeal

– Administrative proceedings up to the adoption of the second decision imposing a fine

December 2000: Commission Decision 2003/6 imposing a fine

– Judicial proceedings since the adoption of the second decision imposing a fine

March 2001: Action for annulment brought by Solvay before the General Court (T‑57/01)

December 2009: Judgment of the General Court under appeal (T‑57/01)

March 2010: Present appeal by Solvay (C‑109/10 P)

III – Procedure before the Court of Justice

12. In the present appeal, Solvay claims that the Court should:

– set aside the judgment under appeal of 17 December 2009;

– re-examine the action in respect of the points raised and annul the Commission Decision of 13 December 2000, in its entirety or in part, in accordance with the pleas submitted;

– cancel the fine of EUR 19 million or, failing that, reduce that fine by a very substantial amount in order to compensate the appellant for the serious damage it has suffered on account of the extraordinary length of the proceedings;

– order the Commission to pay the costs of the appeal proceedings and the costs of the proceedings before the General Court.

13. The Commission, for its part, contends that the Court should:

– dismiss the appeal; and

– order the appellant to bear the costs.

14. The appeal was examined before the Court of Justice by way of the presentation, first, of written pleadings and then, on 18 January 2011, oral argument. The hearing related to both Case C‑109/10 P and Case C‑110/10 P.

IV – Claim that the judgment under appeal should be set aside

15. In its principal claim, Solvay seeks to have the judgment under appeal set aside on the basis of a total of nine pleas in law. I shall examine those pleas in law in a different order: the points of law relating to the application of Article 82 EC will be discussed first (see section A below), the procedural issues will be assessed next (see sections B and C below) and the pleas in law relating to the right to have a matter adjudicated upon within a reasonable time will be addressed at the end of the legal assessment (see section D below).

16. Although the old regulation on anti-trust proceedings, in the version of Regulation No 17, was applicable to this case, the points of law raised are no less relevant now that the law on anti-trust proceedings has been modernised by Regulation (EC) No 1/2003.( )

A – Certain points of law concerning the application of Article 82 EC (sixth, seventh, eighth and ninth pleas in law)

17. By its sixth, seventh, eighth and ninth pleas in law, Solvay raises a number of points concerning the application of Article 82 EC to the present case.

1. Preliminary remarks

18. Before actually addressing the complaints raised by Solvay, I need to make two brief remarks concerning the provisions of substantive law applicable, on the one hand, and the significance of some of the Commission’s statements on competition policy, on the other.

19. With regard, first, to the provisions of substantive law applicable, Solvay refers throughout to Article 102 TFEU. However, as the material legal position is that which obtained at the time when the contested decision was adopted, I consider it preferable to refer to Article 82 EC.( ) Admittedly, this makes no difference to the legal assessment of the appeal, since, in so far as they are relevant here, those two provisions are the same in terms of their content.

20. With regard, next, to the Commission’s statements on competition policy, Solvay repeatedly relies in its appeal on a communication from 2009 containing ‘Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings’.( )

21. That communication has no bearing on the assessment of the present appeal. It is immaterial how the Commission intends to make adjustments to the future implementation of its competition policy in relation to Article 102 TFEU (formerly Article 82 EC). After all, any new emphasis in the application of that provision is potentially relevant only to future decisions adopted by the Commission, but not to the legal assessment of a decision already taken. What is more, even if its administrative practice were to change, the Commission would still have to act within the framework prescribed for it by the Treaties as interpreted by the Court of Justice.( )

2. Definition of the relevant geographic market (sixth plea in law)

22. The sixth plea in law, which is directed against paragraphs 252 to 259 of the judgment under appeal, criticises the General Court’s findings on the definition of the relevant geographic market.

23. Solvay complains, in essence, that the General Court failed to state the reasons for the judgment under appeal. On the one hand, it submits, the reasoning on which the judgment was based is unclear and contradictory (first part of the sixth plea in law); on the other hand, it is incomplete and does not address many of the arguments raised by the applicant at first instance (second part of the sixth plea in law). The focal point of the appeal, therefore, is the obligation incumbent on the General Court to provide a proper statement of the reasons on which its judgments are based (Article 36 in conjunction with the first paragraph Article 53 of the Statute of the Court of Justice).

a) First part of the sixth plea in law

24. The first part of the sixth plea in law is attributable to some confusion in the use of terminology in the contested decision. While the Commission defines the relevant geographic market in that decision as ‘the Community (excluding the United Kingdom and Ireland)’, ( ) in many places, it also uses expressions such as ‘the Community’, ‘west Europe’ and ‘western Europe’. ( ) If the Commission had used clear and consistent terminology in the contested decision, the EU courts would probably have been spared the need to consider the arguments exchanged in this regard.

25. Solvay takes the view that it is not clear from the judgment under appeal whether the General Court regards the expressions ‘Community’, ‘Community (excluding the United Kingdom and Ireland)’, ‘west Europe’ and ‘western Europe’ as having the same meaning or as being contradictory.

26. This argument does not stand up to closer examination.

27. It is settled case-law that the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review. ( )

28. Taken together, paragraphs 251 to 254 of the judgment under appeal show clearly and unambiguously that the General Court assumed that there was no substantive difference between the aforementioned expressions.

29. The starting point for the General Court’s thinking was the Commission’s definition of the relevant geographic market as ‘the Community (excluding the United Kingdom and Ireland)’. ( ) Furthermore, it obtained confirmation from the Commission in the proceedings at first instance that references in certain parts of the contested decision to ‘western Europe’ and ‘west Europe’ or the ‘Community’ relate to the same geographic market, that is to say ‘the Community (excluding the United Kingdom and Ireland)’. ( ) In addition, the General Court found that the definition of the relevant geographic market as ‘the Community (excluding the United Kingdom and Ireland’ in recital 136 to the contested decision was not ‘inconsistent with other recitals to the contested decision’. ( )

30. The judgment under appeal therefore provides clear and uncontradictory reasons in relation to the point raised by Solvay. It may be that Solvay does not consider the General Court’s findings concerning the relevant geographic market to be substantively accurate. However, the fact that the General Court, on the merits, arrived at a different conclusion from the appellant cannot in itself vitiate the judgment for failure to state reasons. ( ) The allegation of failure to state reasons is therefore untenable.

b) Second part of the sixth plea in law

31. In the second part of the sixth plea in law, Solvay criticises the General Court for not having explained in more detail why it considers national markets to be relevant for the purposes of assessing the legality of the contested decision. In Solvay’s submission, the General Court also failed to consider numerous arguments which it put forward in this regard in the proceedings at first instance.

32. This part of the sixth plea in law is untenable for two reasons.

33. First, Solvay’s complaint is based on an erroneous interpretation of the judgment under appeal. Contrary to the view expressed by Solvay, the General Court did not by any means ‘consider national markets to be relevant’. It considered the question of national markets only in the alternative, in the event that the Commission had not – as Solvay claimed – correctly defined the relevant geographic market as ‘the Community (excluding the United Kingdom and Ireland)’. ( ) ( )

34. The appellant’s criticism relating to national markets is thus directed ultimately against a part of the grounds of the judgment which contains not the operative reasons on which the judgment is based but only obiter dicta. It is settled case-law that such complaints must be dismissed as being ‘ineffective’ or ‘nugatory’ (in French, ‘inopérant’). ( )

35. Secondly, the appellant’s complaint places excessive demands on the scope of the obligation to state reasons applicable to judgments at first instance. According to settled case-law, the obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case and the reasoning may therefore be implicit on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review. ( )

36. It is true that the General Court is required to examine in its judgment all the infringements of law alleged at first instance. ( ) In a major competition case such as the present one, however, the EU courts cannot be expected, given their limited resources, to give exhaustive consideration to every single submission put forward by the parties. All that matters in a case such as this is that the General Court should give – albeit in condensed form – comprehensible reasons why it considers the contested Commission decision to be lawful.

37. The General Court satisfied those requirements in this case. It explained that, even on the basis of national markets, Solvay held a dominant position in each State in which it was found to have committed infringements. ( ) The General Court logically and rightly concluded from this that, even if the Commission had made an error in its definition of the market (that is to say, if it had wrongly assumed the market to be the EC market without the United Kingdom and Ireland rather than correctly assuming it to be the national markets), this could not result in the annulment of the contested decision. ( ) That clear conclusion did not require further explanation.

c) Certain further arguments in connection with the sixth plea in law

38. As part of the sixth plea in law, Solvay also claims that there has been an infringement of Article 102 TFEU (Article 82 EC). However, since its complaints in this regard raise no points which are not already covered by Solvay’s complaint of failure to state reasons, they do not need to be discussed separately. They are covered by my earlier comments on the failure to state reasons. ( )

39. Solvay also maintains that the General Court distorted facts and evidence. However, this complaint too raises no new points. In particular, Solvay does not satisfy the requirements deriving, in accordance with settled case-law, from Article 256 TFEU, Article 58(1) of the Statute of the Court of Justice and Article 112(1)(1)(c) of the Rules of Procedure of the Court of Justice. ( ) The appeal does not indicate precisely the evidence alleged to have been distorted by the General Court or show the errors of appraisal which the General Court is alleged to have committed in distorting the evidence in this way.

40. Finally, Solvay alleges infringement of Article 299(1) EC (formerly Article 227(1) of the EEC Treaty), which defines the territory of the European Community. ( ) In the light of that provision, it submits, it was not lawful to treat the terms ‘European Community’, ‘west Europe’ and ‘western Europe’ as having the same meaning.

41. That argument is also unconvincing. It is true that, in normal parlance, the geographic or political term ‘west Europe’ does not correspond exactly to the territory of what was then the European Community. However, in a decision in anti-trust proceedings, the Commission (and, by extension, the EU courts) may use its (their) own terminology, which does not necessarily have to conform to traditional geographic or political conceptions, however undesirable this may be. For, as the Commission rightly states, in competition law, the relevant geographic market is a functional concept the definition of which rests primarily on economic considerations.

d) Interim conclusion

42. The sixth plea in law is therefore unfounded in its entirety.

3. Solvay’s dominant position (seventh plea in law)

43. The seventh plea in law concerns Solvay’s dominant position. It is directed against paragraphs 275 to 305 of the judgment under appeal. In Solvay’s view, the General Court wrongly upheld the Commission’s findings on the dominant position held by that undertaking. The General Court thus infringed the obligation to state reasons (Article 36 in conjunction with the first paragraph of Article 53 of the Statute of the Court of Justice) and Article 102 TFEU (Article 82 EC).

a) Solvay’s references to its sixth plea in law

44. In the first part – and also in certain passages of the second and third parts – of the seventh plea in law, Solvay essentially refers only to its submissions under the sixth plea in law. It argues that, since the relevant geographic market is not clearly defined, the General Court is not entitled to find that there is a dominant position ‘on the Community market’. ( )

45. With respect to their substance, the complaints raised here depend entirely on the fate of the sixth plea in law, to which they predominantly refer. If, as I have suggested, the first part of the sixth plea in law is dismissed, ( ) the same must also apply to the first part of the seventh plea in law. Those parts of the second and third parts of the seventh plea in law which relate only to the issue of market definition must likewise be dismissed.

b) Dominant position on national markets (second part of the seventh plea in law)

46. The second part of the seventh plea in law is concerned with the requirements attaching to evidence of a dominant position

i) Allegation that the General Court’s analysis is confined to market shares alone

47. On the one hand, Solvay claims that the General Court infringed Article 102 TFEU (Article 82 EC) by basing its assumption that the undertaking had a dominant position on national markets on an examination of market shares alone, without taking other relevant factors into account.

48. That claim is unconvincing. It rests on a clearly erroneous reading of the judgment under appeal.

49. The General Court did not in any way confine its analysis to an examination of market shares alone. Rather, it was guided, as a first step, by the case-law to the effect that the existence of a dominant position derives in general from a combination of several factors which, taken separately, would not necessarily be determinative. ( )

50. However, the General Court rightly assumed, as a second step, that very large market shares are in themselves, save in exceptional circumstances, evidence of the existence of a dominant position. ( ) Furthermore, it rightly held that a market share of 50% constitutes in itself, save in exceptional circumstances, evidence of the existence of a dominant position. ( )

51. Finally, as a third step, the General Court examined a number of issues raised in the proceedings at first instance which, being exceptional circumstances in Solvay’s view, might have undermined the presumption that it held a dominant position. ( )

52. Consequently, contrary to Solvay’s claim, the General Court also examined factors other than market shares. It simply took as the starting point for its considerations the presumption of a dominant position based on a market share in excess of 50%, but then supplemented that presumption with findings on the existence or otherwise of exceptional circumstances. Such an approach is entirely consistent with the requirements arising from Article 82 EC (Article 102 TFEU) and the related case-law.

ii) Alleged failure to take into account a number of Solvay’s arguments

53. On the other hand, Solvay complains that the General Court did not examine many of the arguments it raised at first instance. These concern, first, the difference between Solvay’s market share and the market shares of its competitors and, secondly, their production capacity. That submission amounts effectively to a claim of infringement of the obligation to state reasons. ( )

54. For the reasons given in connection with the sixth plea in law, ( ) that complaint is untenable. As long as the General Court adopts a reasoned position on all the infringements of law complained of, as it did in this case, it does not need to examine in detail each specific argument put forward in the party’s submissions.

iii) Allegation of insufficient evidence of the market share

55. Finally, Solvay claims that insufficient evidence was adduced of the market share supporting the assumption that it held a dominant position.

56. That submission must be rejected without further examination as inadmissible because it effectively calls into question the General Court’s assessment of the facts and evidence, which the Court of Justice does not have jurisdiction to do in an appeal. ( )

c) Allegation of exceptional circumstances (third part of the seventh plea in law)

57. In the third part of the seventh plea in law, Solvay criticises the General Court for not having considered its arguments concerning the existence of exceptional circumstances which, in Solvay’s opinion, would have militated against the proposition that that undertaking holds a dominant position.

58. That complaint is entirely unfounded. No less than nineteen paragraphs in the judgment under appeal are dedicated ( ) to an examination of the existence or otherwise of exceptional circumstances and to Solvay’s submissions in this regard.

i) Requirements relating to the statement of reasons in the judgment under appeal

59. As I have already said, the obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case and the reasoning may therefore be implicit on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review. ( )

60. Solvay may not agree with the substance of the General Court’s reasoning for its rejection of the existence of exceptional circumstances. However, it cannot be inferred from this that the judgment under appeal fails to state the reasons on which it is based. ( )

61. Moreover, contrary to the appellant’s claim, the General Court does not rule out the existence of exceptional circumstances by reference to Solvay’s large market share alone. Indeed, in the part of the judgment at issue, the General Court examines numerous other factors, such as the alleged possibilities of substituting other products for Solvay’s own ( ) and the question of the countervailing market power of its customers. ( )

62. Moreover, other than in the event of distortion, which is not claimed here, it is not the task of the Court of Justice in appeal proceedings to substitute its own assessment of the facts for that of the General Court in the context of an allegation of exceptional circumstances. ( )

ii) Requirements relating to the statement of reasons in the contested decision

63. On the margins of the third part of the seventh plea in law, Solvay also claims that the General Court infringed Article 296 TFEU (formerly Article 253 EC) because it did not censure the contested Commission decision for failing to state reasons in relation to the countervailing market power of Solvay’s customers.

64. That argument too has no prospect of success.

65. It is settled case-law that the statement of reasons required under Article 253 EC (Article 296 TFEU) must be appropriate to the measure in question and must disclose in a clear and unequivocal fashion the reasoning followed by the EU institution which adopted that measure, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to carry out its review. ( )

66. The institution which adopted the measure is not required, however, to define its position on matters which are plainly of secondary importance or to anticipate potential objections. ( ) Like the General Court in the judgment under appeal, therefore, the Commission too was not necessarily required, in the contested decision, to examine each and every one of the arguments raised by Solvay.

iii) Alleged infringement of Article 102 TFEU (Article 82 EC)

67. Finally, at numerous points in the third part of the seventh plea in law, Solvay claims that there have been infringements of Article 102 TFEU (Article 82 EC). However, that provision is merely referred to, without further comment, as part and parcel of the allegation of failure to state reasons. ( ) Such a complaint raises no new points and does not need to be considered separately.

d) Interim conclusion

68. Considered in its entirety, the seventh plea in law is therefore in part inadmissible and in part unfounded.

4. Abuse of the dominant position held by Solvay (eighth and ninth pleas in law)

69. In the eighth and ninth pleas in law, Solvay alleges that the Commission committed errors of law in the context of its finding of abuse of the dominant position held by Solvay.

a) Group rebate granted to Saint-Gobain (eighth plea in law)

70. The eighth plea in law concerns the group rebate of 1.5% which Solvay had granted to the French undertaking Saint-Gobain as one of its most important customers in a ‘secret protocol’. In the contested decision, the Commission had, with the General Court’s approval, considered the group rebate to be an abuse by Solvay of its dominant position. ( ) In this regard, Solvay criticises the General Court’s findings in paragraphs 348 to 358 of the judgment under appeal. It claims that the General Court wrongly regarded the aforementioned rebate as an abusive fidelity rebate which is incompatible with Article 82 EC. ( )

71. In particular, Solvay claims that there has been an infringement, on the one hand, of Article 102 TFEU (Article 82 EC) and, on the other hand, of the obligation to state reasons applicable to judgments at first instance (Article 36 and the first paragraph of Article 53 of the Statute of the Court of Justice). In this connection, however, the alleged infringement of the obligation to state reasons is of no independent significance in relation to the alleged errors of substantive law. The truth is that Solvay takes a different view from the General Court on the substance of the question of how the group rebate is to be assessed. As explained at greater length above, differences of opinion as to substance have no bearing on the obligation to state reasons, ( ) which means that the complaint of failure to state reasons must be rejected from the outset. From this point onwards, therefore, I shall examine the eighth plea in law exclusively from the point of view of the alleged infringement of Article 82 EC (Article 102 TFEU).

i) Argument as to the absence of any exclusivity commitment

72. First, Solvay criticises the General Court for having wrongly classified the group rebate granted to Saint-Gobain as a fidelity rebate. The General Court, it submits, disregarded the fact that, at the time, Solvay catered for only around 67% of Saint-Gobain’s requirements, and only 15% in France. The group rebate granted by Solvay was not therefore linked to the exclusive or quasi-exclusive supply of Saint-Gobain’s requirements, which, in the appellant’s view, it would have to be in order to support the assumption of an abusive fidelity rebate.

73. The conclusion might be drawn, prima facie, that, by this submission, Solvay seeks to prompt the Court of Justice, in its appellate jurisdiction, to take the improper step of substituting its own assessment of the facts and evidence for that of the General Court. However, what the submission actually states is that, in assessing the group rebate, the General Court failed to take into account a criterion which Solvay considers to be decisive: exclusive or quasi-exclusive supply to the recipient of the rebate by the dominant undertaking. Whether such a criterion of exclusivity is legally relevant in the context of the assumption of abuse within the meaning of Article 82 EC is a point of law which the Court of Justice has jurisdiction to review on appeal. ( )

74. Solvay considers itself able to infer from the previous case-law of the Court of Justice that fidelity rebates are an abusive commercial practice only where they are linked to exclusive or quasi-exclusive supply to the customer by the dominant undertaking.

75. That assumption is wrong. Tellingly, Solvay relies only on the judgment in Hoffmann-La Roche. ( ) Other relevant judgments of the Court of Justice on matters relating to rebates, in particular, Michelin I ( ) and British Airways, ( ) are not mentioned even in passing.

76. As the Court has held, it cannot be inferred from its earlier judgments relating to Article 86 of the EEC Treaty (Article 82 EC) that bonuses and discounts granted by undertakings in a dominant position are abusive only in the circumstances there described. ( )

77. The abusive nature of rebates granted by dominant undertakings must instead be assessed in the light of all the circumstances of the case in question, with particular reference to the criteria and rules governing the grant of the rebate. ( ) The decisive question is whether rebates can produce an exclusionary effect, that is to say whether they are capable, first, of making market entry very difficult or impossible for competitors of the undertaking in a dominant position and, secondly, of making it more difficult or impossible for its co-contractors to choose between various sources of supply or commercial partners. ( ) It must also be examined whether there is an objective economic justification for the rebates and bonuses granted. ( )

78. It cannot be inferred from the previous case-law that rebates are abusive only where the customer is exclusively or quasi-exclusively tied to the undertaking in a dominant position. On the contrary, Michelin I ( ) and British Airways ( ) concerned discount systems or bonus schemes without such an exclusivity commitment.

79. Accordingly, the fact that the General Court refrained from reaching an express finding as to whether Saint-Gobain was exclusively or quasi-exclusively supplied by Solvay does not constitute an error of law. ( )

80. I would add merely for the sake of completeness that Solvay’s (ill‑substantiated) complaint to the effect that the case-law of the Court of Justice concerning fidelity rebates is formalistic and has no economic basis is also unfounded. As has already been said, when assessing rebate schemes, the Court of Justice takes into account all the circumstances of the individual case and expressly recognises the possibility of an objective economic justification. ( ) This is anything but formalistic.

ii) Argument as to the low value of the group rebate

81. Secondly, Solvay argues that, at 1.5%, the group rebate was too small to have been able to have a noticeable effect on the business decisions of the Saint‑Gobain group. In its submission, the General Court does not explain to what extent the rebate granted by Solvay was actually capable of influencing the behaviour of the Saint-Gobain group.

82. It is true that, in paragraph 355 of the judgment under appeal, the General Court examined the question of the possible anti-competitive effects of the group rebate only very briefly. However, its lapidary statement ‘that, even where it is moderate, the amount of a fidelity rebate has an impact on the conditions of competition’, must be viewed in connection with its previous findings. The General Court pointed out, in particular, that Solvay’s group rebate was granted independently of any consideration linked with economic advantages in terms of efficiency and economies of scale and extended to all purchases of soda ash by Saint-Gobain from Solvay in Europe. ( )

83. The capacity of such rebates to produce anti-competitive exclusionary effects is recognised in case-law. As the Court of Justice has held, the commitment of co-contractors towards the undertaking in a dominant position and the pressure exerted upon them may be particularly strong where a discount or bonus does not relate solely to the growth in turnover in relation to purchases or sales of products of that undertaking made by those co-contractors during the period under consideration, but extends also to the whole of the turnover relating to those purchases or sales. ( )

84. It is also particularly difficult for competitors of the undertaking in a dominant position to outbid it in the face of discounts or bonuses based on overall sales volume. Merely by reason of its significantly higher market share, the undertaking in a dominant position generally constitutes an unavoidable business partner in the market. Most often, discounts or bonuses granted by such an undertaking on the basis of overall turnover largely take precedence in absolute terms, even over more generous offers of its competitors. In order to attract the co-contractors of the undertaking in a dominant position, or to receive a sufficient volume of orders from them, those competitors would have to offer them significantly higher rates of discount or bonus. ( )

85. The rebates or commission payments that have been found to be abusive in the previous case-law have sometimes amounted to no more than 1% ( ) and were therefore even lower in percentage terms than the group rebate of 1.5% at issue here.

86. Against that background, the General Court’s finding ‘that, even where it is moderate, the amount of a fidelity rebate has an impact on the conditions of competition’ is beyond legal reproach in the light of the circumstances of the present case. It is based on reasonable economic considerations.

iii) Argument as to the absence of any impact on competition

87. Thirdly, Solvay takes exception to the General Court’s finding that it did not substantiate its assertions concerning the conduct of Saint-Gobain’s national subsidiaries. This is a reference to Solvay’s argument at first instance that Saint-Gobain’s national subsidiaries had managed to negotiate more advantageous contractual conditions, or even to breach their contract with Solvay, as in the case of Saint-Gobain France. ( )

88. The General Court did indeed reject Solvay’s foregoing argument as insufficiently substantiated. ( ) However, the question whether Solvay’s submission was indeed insufficiently substantiated or proven can be left open. After all, that argument was in any event unfounded, as the General Court rightly held. ( ) The anti-competitive nature of a business practice of an undertaking in a dominant position cannot be removed by the fact that it is pursued at the request of a customer ( ) and certainly not by the fact that the customer succeeds, by skilful manoeuvring, in obtaining further concessions from the dominant undertaking. ( )

89. Consequently, Solvay’s third argument is also unsound.

iv) Interim conclusion

90. The eighth plea in law is unfounded in its entirety.

b) Discriminatory nature of Solvay’s business practices (ninth plea in law)

91. The ninth plea in law concerns the General Court’s findings in paragraphs 397 to 402 of the judgment under appeal, concerning the discriminatory nature of Solvay’s business practices under subparagraph (c) of the second paragraph of Article 82 EC.

i) First part of the ninth plea in law

92. In the first part of the ninth plea in law, Solvay specifically criticises paragraphs 397 to 400 of the judgment under appeal, claiming that the General Court distorted its written pleadings at first instance and infringed subparagraph (c) of the second paragraph of Article 102 TFEU (subparagraph (c) of the second paragraph of Article 82 EC).

– Alleged distortion of Solvay’s written pleadings

93. First, the appellant objects to that part of the judgment under appeal in which the General Court assumes that Solvay did not dispute the findings relating to the system of rebates set up in France. ( ) In Solvay’s view, that statement is contradicted by its application and its rejoinder at first instance, which, it argues, the General Court distorted.

94. According to settled case-law, there is such distortion where, without recourse to new evidence, the assessment of the existing evidence is manifestly incorrect. ( ) If that rule is transposed to an argument put forward by a party at first instance, such an argument may be assumed to have been distorted only where it was clearly misunderstood by the General Court or reproduced by it such a way as to misrepresent its meaning.

95. There is insufficient evidence that that was so in this case.

96. As Solvay itself admits, ( ) the country-specific statements in its application at first instance related to the German market. Otherwise, Solvay confined itself to disputing in general the proposition that the rebates granted by it are in the nature of fidelity rebates. Neither its application nor its rejoinder contained submissions relating specifically to the French market. Even the passages from its rejoinder at first instance of which Solvay makes particular mention ( ) relate only incidentally to the French market and do not in any event deal with the matter at issue here of discrimination against business partners. ( )

97. Against that background, the General Court cannot be criticised for having clearly misunderstood Solvay’s argument or for having reproduced it in such a way as to misrepresent its meaning. The complaint of distortion must therefore be rejected.

– Error of substantive law

98. Solvay also claims that paragraphs 398 and 400 of the judgment under appeal contain an infringement of subparagraph (c) of the second paragraph of Article 102 TFEU (subparagraph (c) of the second paragraph of Article 82 EC). It alleges that the General Court erred in law by failing to examine whether there was a relationship of competition between the undertakings in the sets of Solvay’s customers referred to by way of example, in particular between two French customers (Durand and Perrier), on the one hand, and the German flat glass and hollow glass producers, on the other.

99. The Commission disputes the admissibility of that claim by arguing that Solvay did not claim infringement of subparagraph (c) of the second paragraph of Article 102 TFEU at first instance; only in connection with the alleged absence of discrimination was it pointed out that the flat glass and hollow glass producers operate on different markets and are not, therefore, in comparable situations.

100. I must admit that I find this objection to be extremely formalistic and unconvincing. In relation to the discriminatory nature of Solvay’s rebate system, the contested decision made express reference to subparagraph (c) of the second paragraph of Article 82 EC. ( ) It therefore goes without saying that, when debated before the General Court, too, the issue of discrimination must be viewed in the context of that provision, even if it is no longer expressly cited by the parties in their pleadings. ( )

101. Furthermore, it is true that, under Article 42(2) in conjunction with Article 118 of the Rules of Procedure of the Court of Justice, no new pleas in law may be introduced in appeal proceedings. The appellant is, however, permitted to put forward new arguments in relation to the pleas in law which it raised at first instance, in particular in response to the legal opinion expressed by the General Court in the judgment under appeal. ( )

102. That is the case here. The summary of the pleas in law and arguments of the parties in the judgment under appeal shows that Solvay had already claimed at first instance that flat glass producers operate on a different market from hollow glass producers. ( ) The question discussed at first instance, whether undertakings operate on different markets, and the question raised now, whether there is competition between those undertakings, are two sides of the same coin. Thus, by raising on appeal the complaint concerning the existence of a relationship of competition, Solvay is merely developing the arguments which it has already put forward at first instance.

103. Moreover, by that complaint, Solvay is not seeking to prompt the Court of Justice to carry out an improper assessment of the facts in the appeal proceedings. What is at issue is, rather, whether the General Court, in refraining from addressing the relationship of competition between flat glass and hollow glass producers, failed to take into account a criterion consideration of which is required by law under subparagraph (c) of the second paragraph of Article 82 EC. This is a point of law which is open to review on appeal. ( )

104. As to whether that complaint is well-founded, it must first be recalled that subparagraph (c) of the second paragraph of Article 82 EC (subparagraph (c) of the second paragraph of Article 102 TFEU) provides for a two-stage test. The phrase ‘thereby placing them at a competitive disadvantage’ is independent and is not merely in the nature of an explanatory addition with declaratory effect. ( )

105. Consequently, in order for the conditions for applying subparagraph (c) of the second paragraph of Article 82 EC to be met, there must be a finding not only that the behaviour of an undertaking in a dominant position is discriminatory, but also that it tends to distort that competitive relationship, in other words to hinder the competitive position of some of the business partners of that undertaking in relation to the others. ( )

106. The rationale behind subparagraph (c) of the second paragraph of Article 82 EC is that the commercial behaviour of the undertaking in a dominant position may not distort competition on an upstream or a downstream market, in other words between suppliers or customers of that undertaking. Co-contractors of the dominant undertaking must not be favoured or disfavoured in the area of the competition which they practise amongst themselves. ( )

107. In the context of the present case, this means that, when examining subparagraph (c) of the second paragraph of Article 82 EC, the General Court should not have refrained from taking into account the competitive relationship which Solvay’s customers have with each other. An infringement by Solvay of subparagraph (c) of the second paragraph of Article 82 EC should have been assumed only in so far as Solvay’s customers were in competition with each other, in which respect it was not the market for soda ash but the downstream market or markets for glass which were relevant. The General Court therefore erred in law in taking the view, in paragraph 100 of the judgment under appeal, that only the soda ash market and not the glass market was significant.

108. It is true that, for the purposes of assuming the existence of abuse within the meaning of subparagraph (c) of the second paragraph of Article 82 EC, it is sufficient to find that the behaviour of the undertaking in a dominant position tends, having regard to the whole of the circumstances of the case, to lead to a distortion of competition between those business partners. In such a situation, it cannot be required in addition that proof be adduced of an actual quantifiable deterioration in the competitive position of the business partners taken individually. ( ) The Commission rightly drew attention to the foregoing.

109. However, it is an error of law to declare the competitive relationships on the downstream market on which the customers of the undertaking in a dominant position are active to be entirely insignificant, as the General Court did in the present case.

110. Contrary to the view taken by the Commission, that error of law cannot be disregarded by reference to the fact that the aforementioned French customers Durant and Perrier and the German customers from the flat glass and hollow glass sectors are only individual examples. Where the General Court, in response to a complaint raised by a party to the proceedings, examines individual examples taken from the contested decision in order to determine whether there have been any errors of assessment, it must carry out that examination on the basis of legally correct criteria. This was not the case here.

111. A different conclusion cannot be drawn from the judgments in Hoffmann‑La Roche ( ) and Michelin I. ( ) The passages from those judgments which are cited by the Commission do not specifically relate to the application of subparagraph (c) of the second paragraph of Article 82 EC ( ) but contain general statements on the abusive nature of rebate systems operated by undertakings in a dominant position.

112. The fact that the competitive relationships between the business partners of the undertaking in a dominant position are significant for the purposes of subparagraph (c) of the second paragraph of Article 82 EC is demonstrated by the judgment concerning Portuguese airport charges. In that judgment, the Court of Justice expressly referred to the ‘[unjustified] economic advantage’ which the discount recipients are able to obtain ‘compared with their competitors’. ( )

113. The first part of the ninth plea in law is therefore unfounded.

ii) Second part of the ninth plea in law

114. In the second part of the ninth plea in law, Solvay specifically objects to paragraph 401 of the judgment under appeal. That part of the judgment deals with Solvay’s argument at first instance concerning the allegedly low costs of soda ash for glass producers. The General Court finds in this regard that Solvay’s ‘assertion’ is ‘unsubstantiated’ and ‘not of such a kind as to call in question the discriminatory nature of [Solvay’s] practices’. Solvay takes the view that, in reaching this finding, the General Court, on the one hand, distorted its pleadings at first instance and, on the other hand, infringed the obligation to state reasons under Article 36 in conjunction with the first paragraph of Article 53 of the Statute of the Court of Justice as well as subparagraph (c) of the second paragraph of Article 102 TFEU (subparagraph (c) of the second paragraph of Article 82 EC).

– Alleged distortion of Solvay’s pleadings

115. The complaint of distortion of pleadings appears to be unfounded. There is no indication that the General Court clearly misunderstood the written submissions advanced by the applicant at first instance or reproduced them in such a way as to misrepresent their meaning. ( ) It should be recalled that Solvay had argued at first instance that, while soda ash is the most important raw material used in the manufacture of glass, it represents only 2 to 6% of the average selling price of the glass. The General Court correctly reproduced that argument. ( ) The mere fact that supplementary submissions to similar effect which Solvay advanced in its rejoinder were not expressly mentioned in the judgment under appeal does not mean that the General Court thereby distorted the substance of Solvay’s argument.

– Failure to state reasons

116. The position is different as regards the complaint alleging failure to state reasons. As has already been said, the statement of the reasons on which a judgment is based must clearly and unequivocally disclose the General Court’s thinking, so that the persons concerned can be apprised of the justification for the decision taken and the Court of Justice can exercise its power of review. ( ) Not even on the most sympathetic of readings does paragraph 401 of the judgment under appeal satisfy those requirements.

117. The General Court gives no explanation for why it regards Solvay’s arguments concerning the low cost of soda ash for glass producers as ‘unsubstantiated’. In particular, it is not clear from the grounds of the judgment whether the General Court had taken note of the arguments put forward by Solvay in its rejoinder at first instance at all. In that rejoinder, as evidence for its contention as to lower costs, Solvay had cited a Commission regulation on anti‑dumping ( ) in which the cost share represented by soda ash in glass production was said to be 8%. ( )

118. Nor does the General Court explain why the allegedly low cost share represented by soda ash in glass production is ‘not of such a kind as to call in question the discriminatory nature of Solvay’s practices’. There may in fact be good reasons for that statement, ( ) but they are not even hinted at in the judgment under appeal.

119. Did the General Court take the view that the cost share represented by an important raw material is generally immaterial for the purposes of assessing the existence or otherwise of discrimination between customers of the undertaking in a dominant position? Or was it of the opinion that a cost share of the order described by Solvay (2 to 6%) has no bearing on the discriminatory nature of the business practices in question? And if so, why? A few additional sentences in the grounds of the judgment could and should have provided the clarity necessary here.

120. The General Court’s findings in paragraph 401 of the judgment under appeal leave the reader uncertain as to why Solvay’s arguments on the allegedly low cost of soda ash in glass production were rejected. As a result, moreover, the Court of Justice is unable to exercise its power of review. Consequently, paragraph 401 of the judgment under appeal is vitiated by a failure to state reasons, with the result that the second part of the ninth plea in law is well‑founded.

121. Accordingly, there is no need to examine the complaint of infringement of subparagraph (c) of the second paragraph of Article 102 TFEU. In any event, it raises no points which are not already contained in the complaint of failure to state reasons.

iii) Interim conclusion

122. In summary, it must be concluded that the ninth plea in law is in part well‑founded.

B – Prohibition on the use of evidence obtained in the investigation of April 1989 (second plea in law)

123. By its second plea in law, which is directed against paragraphs 218 to 230 of the judgment under appeal, Solvay alleges infringement of Article 14(3) and Article 20(1) of Regulation No 17 (first and second parts of the second plea in law). The undertaking also claims that the General Court distorted facts and evidence (third part of the second plea in law).

124. The background to this plea in law is the fact that, in the decision ordering an investigation of 5 April 1989, by which the Commission ordered a search of the premises of undertakings operating on the European soda ash market, reference is made only to possible infringements of Article 85 of the EEC Treaty (agreements between undertakings and concerted practices), whereas the contested decision imposing a fine establishes an infringement of Article 86 of the EEC Treaty or Article 82 EC (abuse of a dominant position). Solvay takes the view that the evidence found during a search in connection with Article 85 of the EEC Treaty must not be relied on as the basis for a decision under Article 86 of the EEC Treaty or Article 82 EC.

1. Admissibility of the second plea in law

125. The Commission considers the second plea in law to be inadmissible because it is based on the same complaints that Solvay raised in the proceedings at first instance.

126. That objection is unfounded.

127. It is true that, according to settled case-law, the appellant must not confine itself to reproducing the pleas in law and arguments previously submitted to the General Court. ( ) However, where a party challenges the interpretation or application of EU law by the General Court, the points of law examined at first instance may be discussed again in the course of an appeal. Indeed, as the Court has held, if a party could not thus base his appeal on pleas in law and arguments already relied on before the General Court, an appeal would be deprived of part of its purpose. ( )

128. In its appeal, Solvay looks in detail at paragraphs 218 to 230 of the judgment under appeal and, with reference to judgments of the Court of Justice, directs specific legal complaints against the General Court’s findings. There can therefore be no question of a mere wholesale repetition of the corresponding plea in law raised at first instance.

129. Consequently, the admissibility of the second plea in law cannot seriously be called in question.

2. Merits of the second plea in law

a) First and second parts of the second plea in law (infringement of Article 14(3) and Article 20(1) of Regulation No 17).

130. Under Article 20(1) of Regulation No 17, information acquired during an investigation conducted by the Commission in the course of anti-trust proceedings may be used only for the purpose of the investigation. That provision thus contains, on the one hand, an obligation as to the purpose pursued and, on the other hand, a prohibition on use of the evidence obtained by the Commission.

131. The scope of the obligation as to purpose and the prohibition on use of evidence is a matter of dispute in the present case. The parties are in disagreement as to whether the Commission, for the purpose of establishing an abuse of a dominant position, was entitled to rely on evidence which it had previously obtained during an investigation into alleged infringements of the prohibition on anti-competitive agreements between undertakings on the same market.

132. The wording of Article 20(1) of Regulation No 17 provides no specific guidance in this regard. Recourse must therefore be had to the meaning and purpose of that provision.

133. It is recognised that Article 20(1) of Regulation No 17 serves to protect the rights of the defence of undertakings affected by investigation measures adopted by the Commission. ( ) As the Court has stated, those defence rights would be seriously endangered if the Commission could rely on evidence against undertakings which was obtained during an investigation but was not related to the subject-matter or purpose thereof. ( )

134. The decisive criterion for the purposes of determining the scope of the obligation as to purpose and the prohibition on use of evidence laid down in Article 20(1) of Regulation No 17 is therefore the subject-matter and purpose of the investigation in question. Both follow from the order, issued by the Commission, under which the investigation is carried out. ( ) According to the second sentence of Article 14(3) of Regulation No 17, they must be specified in the relevant Commission decision ordering the investigation, which fact constitutes a fundamental guarantee of the rights of the defence of the undertakings concerned. ( )

135. In the present case, the Commission decision of 5 April 1989 ordering the investigation, pursuant to which Solvay’s business premises were searched, referred only to Article 85 of the EEC Treaty (Article 81 EC). ( ) According to the General Court’s findings, at that time, the Commission sought only to ascertain whether the applicant was participating in agreements and/or concerted practices. There was no reason to consider that an abuse of a dominant position was also suspected. ( )

136. Solvay concludes from all of the foregoing that use of the evidence obtained during the investigation to establish abuse of a dominant position within the meaning of Article 82 EC (formerly Article 86 of the EEC Treaty) was not permissible.

137. I am not convinced by that view.

138. It is true that, in a decision ordering an investigation, the Commission must ‘clearly indicate the presumed facts which it intends to investigate’. ( ) This serves to ensure that the Commission does not carry out investigations on a speculative basis, without having any concrete suspicions, ( ) a practice for which the English term ‘fishing expeditions’ is often used.

139. However, the aim of the obligation to state the subject-matter and purpose of an investigation cannot be to secure a definitively binding description of all the legal provisions which the undertakings concerned might have infringed, since the Commission is not required to make a precise legal analysis of the suspected infringements at that early stage of its enquiries. ( )

140. In any event, it is sometimes very difficult to assess in advance whether the conduct of an undertaking with a strong market position infringes the prohibition of cartels (Article 85 of the EEC Treaty, Article 81 EC or Article 101 TFEU) or constitutes an abuse of a dominant position (Article 86 of the EEC Treaty, Article 82 EC or Article 102 TFEU). As the Commission rightly points out, the scope ratione materiae of the prohibition of cartels and that of the prohibition against abuse of a dominant position may even overlap. ( )

141. Moreover, investigations serve the same fundamental objective from the point of view of both provisions, that is to say to help implement the competition rules laid down in the Treaties and to protect competition in the internal market from distortion. ( )

142. In the light of the foregoing, to restrict the subject-matter and purpose of an investigation in anti-trust proceedings ex ante to specific prohibitory provisions under substantive law which are expressly defined in the decision ordering the investigation, while categorically ruling out other prohibitory provisions, would represent an excessively narrow and formalistic approach.

143. The primary purpose of an investigation in anti-trust proceedings is to establish facts and obtain evidence ( ) on matters such as the existence of a specific agreement between undertakings, the existence of a specific form of market conduct and the economic considerations informing that conduct.

144. The Commission is not required to establish the precise legal classification of the facts investigated by it until very much later in the administrative procedure, first provisionally in the form of the statement of objections and then definitively in its decision concluding the proceedings. ( ) This does not adversely affect the rights of defence of the undertakings concerned; indeed, these are in fact protected by the statement of objections and the associated right to a fair hearing.

145. The General Court did not therefore commit an error of law in assuming that the documents acquired during the investigation of April 1989 could also be used in the context of the contested decision based on Article 82 EC. ( )

b) Third part of the second plea in law (complaint of distortion of facts)

146. Under this second plea in law, Solvay also accuses the General Court of having distorted the facts. In its submission, the General Court wrongly relies on a similarity between the agreements between undertakings and concerted practices which formed the basis of the 1989 investigation and the abuse of a dominant position established in the contested decision. ( )

147. That criticism, too, is unfounded. It is based on an imprecise reading of the judgment under appeal.

148. The appellant fails to take into account that the General Court did not consider that the infringements covered by Article 85 of the EEC Treaty (Article 81 EC, Article 101 TFEU) and Article 86 of the EEC Treaty (Article 82 EC, Article 102 TFEU) were themselves similar but only that the facts (‘practices’) which the Commission examined as part of its investigation and on which it also ultimately relied in the contested decision were similar. ( ) However, it is precisely those facts – and not their legal classification – which are material when it comes to assessing whether the Commission infringed the obligation as to purpose and the prohibition on use of evidence laid down in Article 20(1) of Regulation No 17. ( )

149. As the General Court held (without contradiction in this regard), ( ) the decision ordering the investigation of 1989 and the contested decision of 2000 were both concerned, inter alia, with the implementation of exclusive purchase arrangements. Accordingly, the General Court was entitled to assume, without erring in law, that the contested decision was sufficiently connected with the subject-matter and purpose of the 1989 investigation ( ) to rule out an infringement of the prohibition on use of evidence laid down in Article 20(1) of Regulation No 17.

c) Interim conclusion

150. The second plea in law is therefore unfounded in its entirety.

C – Rights of the defence (third, fourth and fifth pleas in law)

151. By its third, fourth, and fifth pleas in law, Solvay complains in essence that there has been an infringement of its rights of defence.

152. In all proceedings which may lead to the imposition of penalties, in particular fines or penalty payments, protection of the rights of the defence is a fundamental principle of European Union law which has been repeatedly affirmed in the case-law of the Court of Justice. ( ) It has also since been codified in Article 41(2)(a) and Article 48(2) of the Charter of Fundamental Rights. ( )

153. The complaints raised by Solvay under its third, fourth and fifth pleas in law are of fundamental importance and give the Court of Justice an opportunity to clarify its case-law on the rights of the defence during the administrative procedure in an anti-trust case.

154. The procedural background to these three pleas in law is as follows:

– Before it adopted its first decision imposing a fine in this case, in 1990 (Decision 91/299), the Commission gave Solvay the opportunity to submit observations on its statement of objections. ( ) However, Solvay was not given proper access to the file; it was merely provided with copies of the inculpatory documents on which the Commission based its objections at that time. ( ) This was in order to ‘simplify the procedure’. ( )

– In 2000, that is to say before the second decision imposing a fine at issue here was adopted (Decision 2003/6), Solvay was not given a further hearing; ( ) nor was it allowed access to the file. ( )

– Not until the second set of proceedings before the General Court (T‑57/01) did the Commission submit some of the documents from the administrative procedure, which the General Court had repeatedly asked it to do by way of measures of organisation of procedure. ( ) Solvay was able to consult numerous documents to which it had not previously had access in the Court Registry. The undertaking was also given the opportunity to submit its observations on the usefulness of those documents for its defence. ( )

– The Commission was forced to concede before the General Court that it could no longer find the remaining documents – more specifically, five binders. ( ) The Commission could not even submit an enumerative list of the missing documents to the Court. ( )

155. In the light of the foregoing, Solvay claims, on the one hand, that there has been an infringement of its right of access to the file (third and fourth pleas in law; see in this regard section 1 below) and, on the other hand, that there has been an infringement of its right to be heard (fifth plea in law; see in this regard section 2 below).

1. Right of access to the file (third and fourth pleas in law)

156. A corollary of the principle of protection of the rights of the defence, the right of access to the file means that the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant for its defence. Those documents include both incriminating and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved. ( )

157. It is common ground that, in the administrative procedure, Solvay was made aware only of those documents in the file which the Commission used against that undertaking in the contested decision. Numerous other documents from the file which Solvay would also have been entitled to inspect by virtue of its rights of defence were withheld from it. The Commission thus infringed a fundamental rule of procedure ( ) which is a corollary of the right to good administration. ( ) Such a procedural infringement cannot be remedied after the decision has been adopted, in particular not by submitting individual documents during subsequent judicial proceedings. ( )

158. At the present stage, the parties to the proceedings are concerned only with the question whether the General Court should have annulled the contested decision in the light of the aforementioned procedural error committed by the Commission. It is settled case-law that procedural defects in connection with access to the file in the course of the administrative procedure cause the Commission’s decision to be annulled if the rights of defence of the undertaking concerned have been infringed. ( )

159. Unlike the Commission and the General Court, Solvay considers that its rights of defence have been infringed and puts forward numerous arguments to support that view. In so doing, the appellant relies in essence on the general legal principles, recognised in European Union law, of respect for the rights of defence, presumption of innocence and allocation of the burden of proof. In addition, Solvay alleges infringement of the obligation to state reasons under Article 36 in conjunction with the first paragraph of Article 53 of the Statute of the Court of Justice as well as infringements of the second paragraph of Article 47, Article 48 and Article 52(3) of the Charter of Fundamental Rights, Article 6 of the ECHR and Article 6(1) TEU.

160. However, Solvay puts forward detailed submissions only in respect of the rights of defence, as well as, incidentally, in connection with the presumption of innocence and the obligation to state reasons. Its specific references to the Charter of Fundamental Rights, to Article 6(1) of the ECHR and to Article 6(1) TEU raise no new points and do not therefore require detailed discussion. With regard to Article 6(1) TEU, it is sufficient to point out that that provision itself does not contain any guarantees in relation to fundamental rights. Article 6 of the ECHR is not directly applicable to the EU institutions before the EU’s accession to the ECHR, ( ) but is to be taken into consideration in the interpretation and application of the general legal principles and fundamental rights of European Union law which have been relied on. ( )

161. For the purposes of assessing the complaints raised by Solvay with respect to the rights of defence, the presumption of innocence and the obligation to state reasons, I propose to follow the order in which these are examined by the Commission, which is based on the structure of the judgment under appeal. I shall therefore begin by commenting on the admissibility of the third and fourth pleas in law (see in this regard section (a) below) before examining the complaints relating to the documents accessible at first instance (fourth plea in law; see section (b) below); I shall then turn to the complaints concerning the documents which disappeared from the file (third plea in law; see section (c) below).

a) Admissibility of the third and fourth pleas in law

162. The Commission disputes the admissibility of the fourth and of certain parts of the third plea in law. It contends that the evaluation of the usefulness of specific documents to an undertaking’s defence forms part of the assessment of the facts and evidence, which is the responsibility of the General Court alone and cannot in principle be reviewed on appeal.

163. I am not convinced by that approach. In this case, the Court of Justice is not asked to substitute its own assessment of individual documents from the file for that of the General Court. ( ) Rather, it is asked to examine whether the General Court applied the correct criteria and standards in its assessment of the facts and evidence. This is a question of law amenable to review by the Court of Justice in its appellate jurisdiction. ( )

b) The documents from the file which were accessible only before the General Court (fourth plea in law)

164. The fourth plea in law is directed against paragraphs 417 to 446 of the judgment under appeal, which are concerned with the usefulness for Solvay’s defence of the documents from the file which were accessible for the first time in the proceedings before the General Court. As the General Court did not consider their usefulness to have been proven, it concluded that the Commission had not breached the rights of the defence. ( )

i) First part of the fourth plea in law

165. The first part of the fourth plea in law contains two criticisms of the judgment under appeal, of which I consider the first to be unfounded and the second well-founded.

166. On the one hand, the appellant considers that the General Court should have examined the allegations of infringements of the rights of defence made at first instance in the first place, in other words before the alleged errors of assessment under material law. There would otherwise be a risk of the General Court’s being influenced in its assessment of the usefulness of various documents for the undertaking’s defence by the outcome of its review of the content of the contested decision.

167. That first criticism must be rejected. As the Commission rightly points out, there is no logically compelling order of priority as between the examination of complaints relating to material law, on the one hand, and procedural law, on the other. ( ) (Whether, in terms of the content of its assessment of the complaints relating to procedural law, the General Court may be influenced by the fate of the complaints relating to material law which are raised by an undertaking, will have to be addressed separately in the context of the third plea in law. ( ))

168. On the other hand, the appellant criticises the General Court for having adopted too restrictive a view of the purpose of access to the file. In its opinion, the General Court should not have rejected the usefulness of various documents for the defence on the ground that Solvay was either already aware of the information contained in them or that they related to points which the undertaking had already raised anyway.

169. Unlike the first criticism, the second criticism is well-founded.

170. Access to the file is designed to ensure that undertakings involved in the administrative procedure which are accused of infringing the competition rules laid down by European Union law (also known as the ‘undertakings concerned’) are able to exercise their rights of defence effectively. ( ) It must enable them to acquaint themselves with the evidence in the Commission’s file so that, on the basis of that evidence, they can express their views effectively on the conclusions reached by the Commission in its statement of objections. ( ) This also helps to ensure equality of arms between the undertakings concerned and the Commission and thus, ultimately, a fair administrative procedure.

171. Where, in the administrative procedure, exculpatory documents have not been communicated to an undertaking concerned, that undertaking must subsequently establish only that their non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the decision of the Commission. ( ) In this regard, it is sufficient for the undertaking to show that it would have been able to use the exculpatory documents in its defence. ( )

172. Of course, this applies primarily to documents which would have enabled the undertaking concerned to put forward new evidence in the administrative procedure. In Aalborg Portland, the Court refers in this connection to evidence ‘which did not agree with the findings made by the Commission at that stage and would therefore have been able to have some influence on the Commission’s assessment in any decision it adopted, at least as regards the gravity and duration of the conduct of which it was accused and, accordingly, the level of the fine’. ( )

173. I do not consider, however, that Aalborg Portland and certain other judgments in which the Court has used similar forms of wording can be interpreted as generally restricting the purpose of access to the file to the discovery of new evidence. ( ) On the contrary, even in Aalborg Portland, the Court of Justice seems to me to demonstrate a certain openness to the idea that access to the file may serve other purposes, particularly when it uses the phrase ‘would … have been able to have some influence’. ( )

174. As Solvay rightly points out, the purpose of access to the file is not confined to enabling the undertaking concerned to put forward new arguments or evidence in the administrative procedure. On the contrary, access to the file is also of very considerable practical interest because it enables the undertaking concerned to compare its contentions in the administrative procedure with the observations submitted by third parties – such as customers, suppliers, competitors and professional associations, for example. In particular, the undertaking concerned may, where appropriate, use many of the observations submitted by third parties to provide additional corroboration for the observations on which it has itself relied as against the Commission.

175. Clearly, the submissions put forward by the undertaking as against the Commission may carry more weight if they are based not only on its own internal documents and findings or on generally accessible sources but are also confirmed by the observations of third parties with potentially opposing interests. ( ) After all, the administrative procedure requires not only that the undertaking concerned should submit valid arguments but also that it should substantiate them and furnish sufficient evidence to support them.

176. The General Court fails to take this into account when it states at several points in the judgment under appeal that the non-communication of certain documents during the administrative procedure was not capable of influencing the conduct of the procedure and the content of the contested decision to Solvay’s detriment:

– because the undertaking was ‘not unaware’ of the points alluded to in the documents; ( )

– because the undertaking was able to supply certain information itself, ( ) without there being any need for it to rely on its competitors’ documents; ( )

– because the undertaking had already developed certain arguments contained in the documents; ( ) or

– because the Commission was already aware of the factual situation outlined in the documents. ( )

177. Access to the file is intended to enable the undertaking concerned to ensure its defence better ( ) than it could have done by its own efforts. Because of its excessively narrow understanding of the purpose of access to the file, which does not take account of the factors just mentioned, ( ) the General Court underestimated the scope of the rights of the defence in the administrative procedure and thus committed an error of law.

ii) Second part of the fourth plea in law

178. In the second part of the fourth plea in law, Solvay accuses the General Court of having imposed excessively strict requirements in connection with the furnishing of evidence to demonstrate an infringement of the rights of the defence. The appellant refers in this regard to certain passages from the judgment under appeal in which the General Court states that:

– Solvay has ‘not established that the non-disclosure [of certain documents] had influenced, to its detriment, the conduct of the procedure and the content of the contested decision’; ( )

– the elements put forward by Solvay following consultation of the file before the General Court do not call in question the Commission’s analysis in the contested decision. ( )

179. As Solvay rightly argues, the criterion for determining whether there has been an infringement of the rights of the defence as a result of procedural errors in connection with access to the file is not whether the non-disclosure of an exculpatory document ‘influenced’ the conduct of the procedure and the content of the Commission’s decision to the detriment of that undertaking but whether it ‘was able to influence’ the content of the Commission’s decision. ( )

180. The difference in wording between ‘influenced’ and ‘was able to influence’ may appear to be minimal at first sight. There is therefore a temptation to discount Solvay’s complaint as semantic hair-splitting.

181. In actual fact, these linguistic nuances reveal that the General Court applied the wrong criteria when examining Solvay’s allegation that its rights of defence had been infringed: it wrongly required evidence to demonstrate that the outcome of the administrative procedure would have been different if the documents at issue had been disclosed. ( ) The General Court should have taken into account only whether the undertaking concerned had demonstrated that there was even a small chance that the documents which were not accessible in the administrative procedure could have been useful to its defence. ( ) The undertaking concerned does not have to show that, if it had had access to the documents which were not communicated to it, the Commission decision would have been different in content. ( )

182. The General Court therefore erred in law in its assessment of the rights of the defence.

183. Solvay also complains in this connection that there has been an infringement of the presumption of innocence, but, as that complaint does not in my view raise any points not already covered by the complaint as to infringement of the rights of the defence, I shall not examine it further.

184. Finally, Solvay considers that the grounds of the judgment under appeal are contradictory because the General Court starts by citing the correct criterion for assessment (‘even a slight chance of altering the outcome of the administrative procedure’ ( )), but then goes on to apply a stricter criterion (Solvay had ‘not established that the non-disclosure of the … documents had influenced, to its detriment, the conduct of the procedure and the content of the contested decision’, ( ) and the elements which it had put forward did not ‘call in question the Commission’s analysis in the contested decision’ ( )). As has already been shown above, ( ) however, the requirements relating to evidence of an infringement of the rights of the defence are a matter of substance, not a matter relating to the grounds of the judgment under appeal. The General Court may have erred in law in connection with the rights of the defence but this does not mean that it also failed to state the reasons on which its judgment was based.

iii) Interim conclusion

185. The fourth plea in law is therefore for the most part well-founded. On the one hand, the General Court misconstrued the purpose of access to the file when examining the usefulness of the documents that were not accessible during the administrative procedure and, on the other hand, it imposed excessive requirements in connection with the furnishing of evidence to demonstrate that the rights of the defence had been infringed.

c) Loss of parts of the file (third plea in law)

186. The third plea in law concerns the loss of parts of the Commission’s file. It is directed against paragraphs 465 to 482 of the judgment under appeal, in which the General Court examines the question whether the absence of five binders gave rise to an infringement of Solvay’s rights of defence ( ) and answers it in the negative. ( )

187. The appellant directs numerous criticisms against the part of the judgment in question and these form the subject-matter of all six parts of this third plea in law. However, they overlap in many respects. In essence, they all raise the same question: was the General Court entitled to rule out the possibility that the missing documents might have been useful for Solvay’s defence? ( )

188. I share the appellant’s view that that question must be answered in the negative.

189. The starting point for these considerations should be that an undertaking which has been unlawfully refused access to the file during the administrative procedure has to demonstrate before the General Court only that it would have been able to use the documents in question in its defence. ( ) It is sufficient for the undertaking to show that there is even a small chance that the documents which were not accessible in the administrative procedure could have been useful for its defence. ( )

190. It is true that, in this case, the General Court’s task of examining the usefulness of those elements of the file not inspected by Solvay was made more difficult by the fact that the documents concerned could not be found.

191. It would of course be inappropriate always to assume that parts of a file which have gone missing could have been useful to the defence of the undertaking concerned. Where, for example, it can reasonably be concluded, on the basis of a detailed index, that the parts of the file in question contained only documents which would not have been accessible in any event (this may be assumed to be true in particular of draft decisions and internal memoranda of the Commission, but may also apply to other confidential documents ( )), an infringement of the rights of the defence may be ruled out from the outset.

192. In this case, however, it was not possible even to begin to reassemble the missing parts of the file. ( ) As far as I can tell, the question of who should bear the responsibility for that fact has not yet been clarified in case-law, the judgments delivered to date having concerned documents from the administrative procedure the content of which was established and amenable to review by the Court. ( )

193. In principle, it is for the undertaking concerned to present the facts and adduce the evidence to prove that it could have used in its defence parts of the file to which it was unlawfully denied access during the administrative procedure. ( ) However, this is feasible only in so far as the undertaking can at least give a useful indication of the authors and nature and content of the documents which have been withheld from it.

194. Responsibility for the fact that parts of the file cannot be found, on the other hand, lies with the Commission. For, in accordance with the principle of good administration, the Commission has an obligation to ensure the file’s proper management and safe storage. Proper management of the file includes not least the production of a meaningful index to be used for the purposes of granting access to the file at a later date.

195. Where – as here – the content of the missing parts of the file cannot be reassembled with any certainty because no such index exists, there is only one conclusion to be drawn in respect of the rights of the defence: it cannot be ruled out that the undertaking concerned might have been able to use the missing documents in its defence.

196. The judgment under appeal none the less assumes the exact opposite. In the view of the General Court, the possibility that Solvay might have found the missing parts of the file of use for its defence can be precluded. ( )

197. The General Court bases its view on the fact that all of the material-law objections (‘substantive objections’) to the contested decision which have been raised by Solvay must be rejected. ( ) The assessment of the usefulness of the missing parts of the file for Solvay’s defence is therefore linked to the merits of its objections to the finding of abuse of a dominant position. ( ) In other words, the General Court seems to assume that anyone already playing with a bad hand would not have found any trump cards in the remaining parts of the file.

198. That approach is erroneous in law. It goes without saying that the question whether the rights of the defence have been infringed must be examined by reference to the specific circumstances of each particular case. Such an examination must, however, be conducted in the light of what the Commission is accusing the undertaking of having done, that is to say in the light of the complaints which it raises as against the undertaking. ( ) After all, the undertaking has to defend itself against those ‘objections’ from the Commission. It is on the other hand entirely irrelevant what substantive objections the undertaking has previously raised to the contested decision and whether those complaints are successful.

199. The General Court wrongly makes the usefulness of the missing documents to Solvay dependent on whether the previous submissions put forward by the undertaking are ‘ineffective’ ( ) or ‘factually incorrect’ ( ), whether Solvay has contested certain findings made by the Commission ( ) and whether it has thus far failed to explain certain points. ( )

200. The correct approach would have been to ask only whether the missing parts of the file might have contained information which would have enabled Solvay to provide better corroboration for the arguments it had previously directed against the contested decision or to put forward new arguments altogether.

201. The General Court avoids that question by giving priority to the evidence adduced by the Commission to establish the existence and abuse of a dominant position. ( ) However, in so doing, it largely disregards the fact that the missing parts of the file might contain information that could cast doubt on that evidence or at any rate shed a different light on it. Solvay has rightly drawn attention to this.

202. First of all, it is significant in this regard that, while large market shares do provide prima facie evidence of a dominant position on Solvay’s part, this is true, as the General Court itself admits, ( ) only if there are no exceptional circumstances. ( ) The General Court does not explain, however, why Solvay itself should be aware of any exceptional circumstances that may exist, with the result that the missing documents could not yield anything new that would be relevant to its defence. ( ) It is perfectly possible, for example, that the observations of third parties might provide useful information on market shares, competitors’ strengths and the extent of any existing countervailing market power held by customers of the undertaking concerned. ( )

203. Secondly, it should be recalled that the abusive nature of certain courses of conduct followed by Solvay – such as the rebate it granted – is indeed established by ‘specific documentary evidence’. ( ) Contrary to that initial impression, however, the existence of abuse may have to be rejected if there are indications of the existence of an objective economic justification. ( ) Such indications do not necessarily have to come from the undertaking in a dominant position itself, but may also be supplied by third parties – such as the customers of the undertaking concerned. Accordingly, it cannot be ruled out that such indications might have been contained in the missing parts of the file. ( )

204. Contrary to the view taken by the General Court, it was not incumbent upon Solvay to show to precisely what extent the missing parts of the file might contain evidence in its favour. It was impossible to reconstruct the content of those documents before the Court and nobody can be asked to do the impossible. Nor was it appropriate to expect Solvay to bear the consequences of that impossibility, since responsibility for the disappearance of the documents in question lay with the Commission. ( ) The General Court’s ever-recurring assumption that Solvay should have adduced evidence to demonstrate the usefulness of the missing documents for its defence ( ) was therefore erroneous in law.

205. In summary, therefore, the General Court applied the wrong criteria when examining whether the missing documents from the file might be useful to Solvay’s defence. It misconstrued the requirements resulting from the rights of the defence in this regard. The third plea in law must therefore be upheld.

206. The further allegation made by Solvay in this connection, of infringement of the presumption of innocence, does not in itself raise any points additional to those covered by the questions, already discussed, relating to the obligation to present the facts and the burden of proof in the context of the rights of the defence. It is therefore unnecessary to examine it separately.

2. Right to a hearing (fifth plea in law)

207. Solvay’s fifth plea in law is directed against paragraphs 184 to 193 of the judgment under appeal, in which the General Court concludes that the Commission was not required to hear the undertaking again before adopting the contested decision. ( ) In Solvay’s view, however, a hearing should have taken place in the administrative procedure in 2000 because the first decision imposing a fine (Decision 91/299) – which was annulled by the General Court – had not only been incorrectly authenticated but had also been adopted without the necessary access having been given to the file.

a) First part of the fifth plea in law

208. In the first part of the fifth plea in law, Solvay complains that there has been an infringement of the obligation to state reasons under Article 36 in conjunction with the first paragraph of Article 53 of the Statute of the Court of Justice. It submits that the judgment under appeal does not examine the question whether the procedural defects relating to access to the file which had vitiated the first administrative procedure necessitated a further hearing. The General Court, Solvay contends, does not therefore address a complaint which it raised in the proceedings at first instance.

209. That argument must be rejected. The General Court did, albeit in only one sentence, examine the need for a new hearing on account of the previous procedural defects connected with access to the file. It referred by way of answer to that question to its findings concerning access to the file. ( ) From the point of view of the General Court, this was the logical and consistent thing to do, since it assumed that the Commission had not infringed the rights of the defence by failing to grant access to the file. ( ) In accordance with the thinking adopted in the judgment under appeal, there was therefore no need to hear Solvay again.

210. Consequently, the General Court’s findings concerning the right to a hearing are sufficiently reasoned. Whether, from the point of view of their substance, they are also free from any error of law is the subject-matter of the second part of the fifth plea in law, to which I shall turn now.

b) Second part of the fifth plea in law

211. In the second part of the fifth plea in law, Solvay examines from a substantive point of view the question whether the procedural defects relating to access to the file which occurred in 1990 made it necessary later – before the second decision imposing a fine at issue here (Decision 2003/6) was adopted – for the undertaking to be heard again.

212. Solvay claims in essence that there has been an infringement of its right to a hearing and its rights of defence in general. The appellant also alleges infringements of Article 47(2), Article 48 and Article 52(3) of the Charter of Fundamental Rights, Article 6 of the ECHR and Article 6(1) TEU, as well as of the principle of good administration and Article 266 TFEU (formerly Article 233 EC). Common to all those complaints is the criticism that the General Court failed to take into account the need for the Commission to hear Solvay again.

213. The right to a hearing is one of the rights of the defence which must be observed during the administrative procedure in an anti-trust case. The right to a hearing requires that the undertaking under investigation must be afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts alleged and on the documents used by the Commission in support of its claim. ( ) In secondary law, that principle was laid down in Article 19(1) of Regulation No 17 at the time when the contested decision was adopted. ( )

214. In this case, it is common ground that Solvay was heard by the Commission, on the basis of a statement of objections, in 1990 – prior to the adoption of the first decision imposing a fine (Decision