Opinion of Mr Advocate General Mischo delivered on 25 October 2001. - Enichem SpA) v Commission of the European Communities. - Appeal - Competition - Polyvinylchloride (PVC) - Article 85(1) of the EC Treaty (now Article 81(1) EC) - Annulment of a Commission decision - New decision - Documents predating the first decision - Res judicata - Principle of non bis in idem - Limitation - Reasonable period - Statement of reasons - Access to the file - Fair hearing - Professional secrecy - Self-incrimination - Private life - Fines. - Case C-251/99 P.



European Court reports 2002 Page I-08375



Opinion of the Advocate-General

I - Introduction

A - Background to the dispute

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

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

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

4. At the end of the proceeding the Commission adopted Decision 89/190/EEC of 21 December 1988 relating to a proceeding pursuant to Article 85 of the EEC Treaty (IV/31.865, PVC), (hereinafter the PVC I decision'). By that decision, the Commission penalised the following PVC producers for infringement of Article 85(1) of the EC Treaty (now Article 81(1) EC): Atochem SA, BASF AG, DSM NV, Enichem SpA, Hoechst AG (hereinafter Hoechst'), Hüls AG, Imperial Chemical Industries plc (hereinafter ICI'), Limburgse Vinyl Maatschappij NV, Montedison SpA, Norsk Hydro AS, Société Artésienne de Vinyle SA, Shell International Chemical Company Ltd, Solvay et Cie (hereinafter Solvay') and Wacker-Chemie GmbH.

5. All those undertakings except Solvay brought actions to have that decision annulled by the Community judicature.

6. The Court of First Instance declared Norsk Hydro's application inadmissible by order of 19 June 1990.

7. The other cases were joined for the purposes of the oral procedure and the judgment.

8. By judgment of 27 February 1992 in BASF and Others v Commission, the Court of First Instance declared the PVC I decision non-existent.

9. On appeal by the Commission, the Court of Justice, by judgment of 15 June 1994 in Commission v BASF and Others, set aside the judgment of the Court of First Instance and annulled the PVC I decision.

10. The Commission thereupon adopted a fresh decision, on 27 July 1994, in relation to the producers who had been the subject of the PVC I decision, with the exception, however, of Solvay and Norsk Hydro AS [Commission Decision 94/599/EC of 27 July 1994 relating to a proceeding pursuant to Article 85 of the EC Treaty (IV/31.865 - PVC) (OJ 1994 L 239, p. 14, hereinafter the PVC II decision'). That decision imposed on the undertakings to which it was addressed fines of the same amounts as those imposed by the PVC I decision.

11. The PVC II decision contains the following provisions:

Article 1

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

Article 2

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

Article 3

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

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

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

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

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

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

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

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

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

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

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

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

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

B - Procedure before the Court of First Instance

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

13. Each sought the annulment of the PVC II decision in whole or in part and, in the alternative, the annulment or reduction of the fine. Montedison Spa also pleaded that the Commission should be ordered to pay damages on account of costs incurred in putting together a guarantee and any other expenses arising from the PVC II decision.

C - The judgment of the Court of First Instance

14. By judgment of 20 April 1999 in Limburgse Vinyl Maatschappij and Others v Commission (hereinafter the contested judgment'), the Court of First Instance:

- joined the cases for the purposes of the judgment;

- annulled Article 1 of the PVC II decision in so far as it found that Société Artésienne de Vinyle SA had participated in the infringement complained of after the first half of 1981;

- reduced the fines imposed on Elf Atochem, Société Artésienne de Vinyle SA and ICI to EUR 2 600 000, EUR 135 000 and EUR 1 550 000 respectively;

- dismissed the remainder of the action;

- ruled on the costs.

D - Procedure before the Court of Justice

15. By application lodged at the Court Registry on 6 July 1999, Enichem SpA (hereinafter Enichem') appealed pursuant to Article 49 of the EC Statute of the Court of Justice.

16. It claims that the Court should:

- set aside the contested judgment in those parts contested by Enichem and, accordingly, annul the PVC II decision;

- in the alternative, set aside the contested judgment in those parts which adversely affect Enichem and, accordingly, annul or reduce the fine imposed;

- order the Commission to pay the costs of the proceedings at first instance and on appeal.

17. The Commission contends that the Court should:

- dismiss the appeal;

- order the appellant to pay the costs of the proceedings at first instance and on appeal.

II - Assessment

18. In support of its appeal, Enichem puts forward 13 pleas, which should be considered in the order in which they appear in the application.

A - Infringement of Article 44(1)(c) of the Rules of Procedure of the Court of First Instance

19. The appellant complains that, in paragraph 41 of its judgment, the Court of First Instance stated that, in its reply, Enichem made a general reference to the pleas and arguments put forward jointly by a number of applicants at the hearing before the Court of First Instance on 13 and 14 June 1995, and held that that general reference to documents, even if annexed to the reply, could not replace a statement of facts, pleas and arguments in the text of the reply itself.

20. The Court concluded that, to the extent that it referred to the joint submissions, Enichem's reply did not satisfy the requirements of Article 44(1)(c) of the Rules of Procedure and could not therefore be considered.

21. Under that provision, the application must contain the subject-matter of the proceedings and a summary of the pleas in law on which the application is based'.

22. Enichem states that the Court of First Instance misapplied the provision since:

- the procedural complaints formulated in the joint submissions were already included in the application and were only clarified in the reply;

- the arguments put forward at the hearing formed part of the procedure and were known to the Court, since they had been put forward before it;

- the objections raised by the parties, and particularly Enichem, to the arguments put forward by the Commission in its defence were already contained in those submissions;

- the reference, in the reply, to the texts of the joint arguments inevitably meant that the appellant adopted the whole of their content as its own and did not therefore require the Court to seek and ascertain, in the annexes, which pleas formed the basis of the application and the reply.

23. In that regard, it must be stated that the fact that a party refers, in its reply, to the arguments put forward in joint submissions made during an oral procedure ordered by the Court of First Instance in the same cases, joined for that purpose, cannot be criticised.

24. Lest that oral procedure be rendered wholly redundant, the arguments put forward on that occasion are deemed to be known to the Court and the parties are not required to repeat them in their replies.

25. The fact that a party annexes the text of counsel's notes of pleadings to his reply may therefore be considered, at most, superfluous.

26. That said, the Court of First Instance is not required to refer to those notes of pleadings - which may possibly not correspond entirely to what is said - but may simply refer to the arguments put forward at the hearing.

27. Therefore, if the Court refused to take the written pleadings into consideration in so far as they contained arguments presented at the time of the joint pleadings, on the sole ground that the arguments had been reiterated, in those written pleadings, only in the form of a simple reference to the notes of pleadings annexed to the reply, it would err in law.

28. However, it is apparent, from Article 51 of the EC Statute of the Court of Justice, that, in order for an appeal to lie on the grounds of a breach of procedure, the interests of the appellant must have been adversely affected.

29. In that regard, the appellant merely explains that the effect of the Court's conclusion was that that part of the appellant's reply relating to procedural defects was not taken into account for the purposes of the judgment or that it was cut from all the arguments when the joint oral pleadings were heard. That is no more than a general description of the effects inherent in the Court's decision and cannot therefore be regarded as adequate.

30. Indeed, the appellant does not specifically mention any argument, put forward in the reply before the Court of First Instance, which was not taken into consideration by the Court and, a fortiori, has not established to any degree that, if it had been, it could have had an influence on the Court's decision.

31. Therefore, contrary to the requirements of Article 51 of the Statute, it does not mention any specific damage caused to its interests by the alleged procedural irregularity.

32. It follows from the above that this plea should be rejected.

B - Plea of res judicata

33. Enichem considers - unlike the Court of First Instance - that the judgment in Commission v BASF and Others gave a definitive ruling in the PVC case and that the Commission was therefore unable to adopt a new decision.

34. It bases its argument, firstly, on Article 54 of the EC Statute of the Court of Justice, under which the Court, if it does not wish to give judgment on one or more aspects of the matter, may refer the case back to the Court of First Instance for judgment. In the present case, the Court ruled only on the question of infringement of essential procedural requirements because that infringement, since it resulted in the annulment of the PVC I decision, rendered consideration of the other pleas unnecessary.

35. Enichem accordingly inferred that the Court of Justice had held that the PVC case was complete following its judgment and that the annulment of the PVC I decision disposed of all the aspects of that decision.

36. I do not agree with that assessment.

37. The case-law of the Court of Justice shows, in fact, that, where a measure adopted by an institution has been annulled by the Court, the institution is required, in order to comply with the judgment, to have regard to the operative part of the judgment and also to the grounds which constitute its essential basis.

38. In the present case, the Court held, in its PVC I judgment, that the contested decision should be annulled for infringement of the Commission's Rules of Procedure and expressly stated, in paragraph 78 of the judgment, that it was therefore not necessary to examine the other pleas raised by the appellants.

39. Accordingly, the Court did not give judgment on these, and left the way open for the Commission to fulfil its obligation under Article 176 of the EC Treaty (now Article 233 EC) to take steps to comply with the Court's judgment by adopting a fresh decision in accordance with its Rules of Procedure.

40. It is pointless for the appellant to invoke, secondly, Article 17 of Regulation No 17, which confers on the Court of Justice unlimited jurisdiction over actions brought against decisions by which the Commission imposes a fine.

41. It points out, in that regard, that, under that provision, the Court disposes of the whole of the case before it. That is what it did in the case in point, as is apparent from the list of procedural and substantive pleas submitted to it, contained in paragraph 56 of its judgment. Since it did not make any mention of further steps in the proceedings, for example by referring the case back to the Court of First Instance, its judgment encompassed all the aspects raised before it.

42. This argument is based on a misunderstanding of the term unlimited jurisdiction', which means that the Court is entitled to deal with the whole of the case, for example, by replacing the Commission's decision with its own as regards the level of the fines. On the other hand, it does not mean that a judgment of the Court of Justice must inevitably be regarded as having disposed even of the pleas which the Court has expressly held do not need to be examined for the purposes of taking a decision on the subject-matter of the dispute, namely, the validity of the contested measure.

43. The term unlimited jurisdiction' indicates the extent of the Court's powers, but not the way in which it exercises them in a specific case.

44. It follows from the above that this plea should be rejected.

C - Invalidity of the procedural measures taken prior to the adoption of the PVC I decision

45. Enichem complains that, at paragraph 193 of the contested judgment, the Court of First Instance held that the validity of preparatory measures predating the PVC I decision had not been affected by the annulment of that decision by the Court of Justice.

46. In the appellant's submission, measures taken preparatory to a final decision do not have an independent existence but remain intellectually and organically attached to the decision which puts an end to the administrative procedure. That decision constitutes the objective of those measures. The fact that the defect which results in the annulment of the decision related only to the final part of the procedure is not a decisive factor.

47. In reality, a procedural defect affecting the legality of the final decision is bound to have an impact on previous measures taken during the administrative procedure.

48. It should be noted that the matter of how measures taken preparatory to a final decision which is annulled should be treated depends on the inferences to be drawn from the annulling judgment. Those, as we have seen above, stem from the grounds of the annulling judgment.

49. The grounds indicate the extent of the obligations of the institution which adopted the annulled measure and therefore, in particular, the reply to the question whether or not it has to adopt the preparatory measures again.

50. It is not apparent from any statement made in the judgment in Commission v BASF and Others, by which the annulment of the PVC I decision was pronounced, that the nullity extended to the measures taken preparatory to the decision.

51. That judgment shows, on the contrary, that the annulment arose from the mere fact that the Commission infringed the procedural rules governing only the detailed procedure for the definitive adoption of the decision. The nullity could not, therefore, extend to the procedural stages which predated the occurrence of that irregularity and to which those rules were not intended to apply.

52. I should point out that the Court of Justice also expressly stated in its judgment that it was not necessary to examine the other pleas, including, therefore, those relating to the validity of the preparatory measures.

53. The situation is therefore similar to that considered in the judgment in Spain v Commission, cited by the Court of First Instance, in which the Court of Justice held that the procedure for replacing the annulled measure could be resumed at the very point at which the illegality occurred.

54. The differences invoked by the appellant between the present case and that judgment, cited by the Court of First Instance, are, in my view, irrelevant.

55. Accordingly, the fact that that case concerned a partial annulment is of no consequence since, in any event, the Commission, in that case too, decided to adopt a new decision to replace the previous one.

56. The appellant adds, however, that, in Spain v Commission, the Commission was required, under Article 176 of the Treaty, to take the steps necessary to implement the judgment in compliance with the illegality established by the Court, whereas, in the present case, the Commission is not required to adopt a new decision.

57. None the less, it is important to note that, in both cases, the Commission is required to give due effect to the annulling judgment. It follows that, in both cases, it had to have regard to the judgment when deciding the adoption procedure and the content of the new measure. The fact that, in one case, it was mandatory for it to adopt that measure while, in the other, it had the option not to do so, is irrelevant in that regard.

58. The question which arises in both cases is the effect of the annulment on the adoption procedure and the content of the new measure, not the very principle of its adoption.

59. It is apparent from the above that this plea should be rejected.

D - Misinterpretation and misapplication of Community law regarding the rights of the defence in the event of the adoption of a new decision to replace an annulled decision finding an infringement

60. Enichem complains that the Court of First Instance, in paragraphs 246 to 258, 260 to 268 and 270 of the contested judgment, held that a fresh hearing of the undertakings concerned, including on the expediency of adopting a new decision, was not necessary because the PVC II decision did not contain objections which were new in relation to those set out in the PVC I decision.

61. It also argues that the Court was wrong to consider that, since a fresh hearing of the undertakings was unnecessary, there was no need to call for the intervention of the Advisory Committee on Restrictive Practices and Dominant Positions (hereinafter the Advisory Committee'). It had thus deprived the Committee of its role of monitoring and guiding the exercise of the Commission's powers.

62. The appellant adds, finally, that, in respect of the Hearing Officer, the Court of First Instance had wrongly held that the hearing of the undertakings held in 1988 was sufficient and that the Commission decision of 24 November 1990 on the hearings in proceedings relating to Articles 85 and 86 of the EEC Treaty and Articles 65 and 66 of the ECSC Treaty was not applicable at that date.

63. The acceptance of that time factor reflects an explicit and intentional restriction on the rights of the defence, particularly because the PVC II decision was adopted in 1994, when the Commission decision of 24 November 1990 had already been in force for a long time.

64. It must be pointed out, first of all, that it has already been shown that the measures taken preparatory to the final decision, including the hearing of the undertakings, the intervention of the Hearing Officer and the meeting of the Advisory Committee, completed before the adoption of the PVC I decision, remained valid.

65. It follows that the undertakings were heard, in accordance with the applicable rules, since they were able to put their case as to the complaints made against them.

66. In that regard, it should be borne in mind that Article 19(1) of Regulation No 17 provides that, before taking its decision, the Commission is to give the undertakings the opportunity of being heard on the matters to which the Commission has taken objection'.

67. In that regard, Article 4 of Regulation No 99/63 provides that the Commission is to deal, in its decisions, only with those objections in respect of which the undertakings have been afforded the opportunity to state their views.

68. It is not claimed that the PVC I decision contained objections in respect of which the undertakings were not heard or that the PVC II decision contained objections additional to those contained in the PVC I decision. It follows that, in this case, the regulations did not require the undertakings to be given a fresh hearing.

69. Enichem's claim that the hearing also allows undertakings to express their views on aspects of the case other than the objections does nothing to detract from that conclusion. Even if that were the case, there would be no grounds for inferring that the Commission was required to consult the undertakings on those other aspects since, as we have seen, the applicable regulations refer to a right to be heard on the objections, which is perfectly understandable in the context of protecting the rights of the defence since, by definition, it is against the complaints made against them that the undertakings must be able to defend themselves.

70. As regards the fact that the Commission had the opportunity to conduct a written exchange of arguments, it should be noted that, since the Commission - as in the present case - was not required to hear the parties again, the form which that consultation may have taken is unimportant.

71. The fact that it was not necessary to hold a new hearing of the parties, which follows from the above, means that there was also no need to call for the further intervention of the Hearing Officer, whose role is, by definition, linked to a hearing being held.

72. As for the consultation of the Advisory Committee, it is apparent from Article 10(5) of Regulation No 17 that the Advisory Committee is to deliver an opinion on a preliminary draft decision. The appellant does not claim that the text of the PVC II decision was substantially different from that considered by the Committee, since it merely refers to the Court's statement, in paragraph 252 of its judgment, that the new Decision was adopted in factual and legal circumstances different from those which existed at the time the original decision was adopted. However, the Court went on to say, in the same sentence, that that fact did not in any sense mean that the Decision contained new objections.

73. In the absence of such substantial modifications, the regulation did not require, in my view, that the Advisory Committee should be consulted again on a text which was substantially the same as that on which it had already given its opinion.

74. It is apparent from the above that this plea is unfounded.

E - Failure to state the grounds for adopting the PVC II decision following the annulment of the PVC I decision

75. Enichem criticises the Court of First Instance for rejecting, in paragraphs 386 and 387 of the contested judgment, its plea alleging infringement of Article 190 of the EC Treaty (now Article 253 EC), inasmuch as the Commission did not, in the light of that provision, indicate the reasons which had led it to repeat its objections and reimpose the fines 15 years after the acts against which complaints were made and six years after the adoption of the PVC I decision.

76. In the appellant's submission, the Court placed a wholly restrictive interpretation on the Commission's duty to state reasons, by accepting that the first recital in the preamble to the PVC II decision, which merely refers to the Treaty, constituted a formal reference to the task assigned to the Commission and thus satisfied the requirement to state the reasons for the institution's interest in finding an infringement and penalising the undertakings concerned. However, in the light of what the appellant calls the corrective role of the Commission's discretion, attached to the obligation to state reasons, that requirement should be interpreted widely, so that the Commission's choices do not avoid review of their legality.

77. That is particularly so in the present case, in which the Commission exercised its jurisdiction in an unprecedented manner, going beyond its usual practice, by adopting a new decision after the Court of Justice had annulled the previous one.

78. However, it should be noted that the Court of First Instance was right to point out that the Commission has a discretionary power when exercising the prerogatives conferred upon it by the Treaty in the area of competition law, and to infer from that that it was not required to explain further the grounds which led it to adopt a new decision.

79. The Court has consistently held that the scope of the institution's obligation to state reasons depends on the nature of the measure in question. In particular, if the institution has a discretion whether to adopt, it cannot be required to state particular reasons in that regard.

80. Of course, it is important to distinguish, in that context, between the obligation to state reasons for the act of adopting the measure, which is the subject-matter of the plea raised by the appellant, and the obligation to state reasons for the content of the decision, which the appellant does not claim has been infringed and which means that the decision must state, in sufficient detail, the nature of the infringement its addressee is alleged to have committed, the reasons why the Commission believes that the infringement has occurred and the obligations it intends to impose on the addressee.

81. It is apparent from the above that this plea should be rejected.

F - The error in law committed as regards the inferences to be drawn from the finding of a lack of correlation between two documents forming the basis of the Commission's accusation

82. Enichem points out that, in paragraph 670 of the contested judgment, the Court of First Instance held that the wording of the planning documents, entitled checklist' and response to proposals' respectively, did not support the Commission's conclusion that the second planning document constituted the response of the other PVC producers to ICI's proposals contained in the first.

83. The appellant criticises the Court for holding, none the less, in paragraph 671 of the contested judgment, that the Commission's approach to the evidence was not affected by that fact, since the Commission had produced numerous documents establishing the existence of the practices described in the PVC II decision and the planning documents in question clearly revealed the existence of a blueprint for a cartel on the part of ICI.

84. The appellant also complains that the Court accepted that the planning documents thereby constituted the basis on which consultations and discussions between producers took place, and led to the actual implementation of the unlawful measures envisaged and that the Commission was therefore right to conclude that the planning documents could be regarded as being at the origin of the cartel which materialised in the following weeks.

85. The Court thereby substantially altered the content of the accusation. Consequently, the infringement it found was significantly less serious than that alleged by the Commission, since there had been no formal consent to the cartel, and also lasted a shorter time, since the date of the documents no longer indicated the commencement of participation in the infringement. However, it did not draw the proper conclusions from that.

86. It is apparent from the above that, in essence, the appellant is complaining that the Court considered, like the Commission, that the planning documents could be regarded as being at the origin of the cartel, although it thought, unlike the Commission, that it was not apparent from their wording that one constituted the producers' response to the proposals contained in the other.

87. The question of determining the probative value of such documents indubitably falls within the scope of the appraisal of the facts by the Court of First Instance. According to settled case-law, that appraisal is not subject to review by the Court of Justice hearing a case on appeal, save where the clear sense of the evidence has been distorted by the Court of First Instance.

88. It is therefore necessary to determine whether that is the situation in the present case. It is apparent from reading the contested judgment that it is not so.

89. Contrary to the appellant's claims, the Court did not establish that there was a lack of correlation between the two documents. Admittedly, it did not hold that it had been proved that one document was the response to the other, but it considered that the two planning documents were unquestionably linked.

90. It stated as follows in paragraph 668 of the contested judgment:

The argument that the two planning documents were unconnected cannot be accepted. In the first place, they were both found at ICI's premises and were physically attached to each other. Secondly, the Checklist comprised a list of certain topics which, in a general way, concerned mechanisms for monitoring sales volumes and regulating prices. Those topics are themselves considered, with greater precision, in the Response to Proposals. Moreover, some of the more detailed points occur in both documents. That applies to the reference to a three-month stabilisation period, the possibility of a price rise in the final quarter of 1980, the need to find an arrangement to take account of new production capacity, or again the possibility of variances on predetermined market shares, with the same reference to a threshold of 5% and to the reservations expressed in that regard. The Court cannot therefore accept that those two documents are unrelated.'

91. Furthermore, it pointed out that the planning documents clearly revealed the existence of a blueprint for a cartel and that the Commission produced numerous documents establishing the existence of the practices described in the decision. The Court noted, finally, that there was a close correlation between these and the practices described in the planning documents.

92. In the circumstances, I take the view that the Court of First Instance cannot be considered to have distorted the facts by holding that the planning documents constituted the basis on which consultations and discussions between producers took place, and led to the actual implementation of the unlawful measures envisaged.

93. Since the Court of First Instance therefore reached the same conclusion as the Commission, it is not possible to maintain, as the appellant maintains, that it substantially altered the accusation, with regard both to the gravity and the duration of the infringement, which it should have taken into consideration.

94. It should also be noted that the text of the decision does not show that, in order to determine the gravity and duration of the infringement, the Commission had taken as a basis the premiss that the document response to proposals' marked the formal consent of the other producers to the proposal to form a cartel.

95. On the contrary, the Commission draws no distinction between the undertakings which had contributed to the establishment of the cartel by formally indicating their agreement and those which had merely joined a cartel set up by others.

96. As regards the assessment of the duration of the infringement, the Commission admittedly considers the date of ICI's proposals relevant, but does not refer to the responses to them. Furthermore, and above all, it also takes into account the date of the commencement of the new system of meetings.

97. It is apparent from the above that this plea should be rejected.

G - Attribution of collective liability

98. Enichem complains that, in paragraphs 768 to 780 of the contested judgment, the Court of First Instance attributed collective liability to the appellant, contrary to the general principle that liability is personal.

99. In that regard, the appellant points out that, since the Court itself acknowledged that the planning documents did not represent the moment at which a joint intention was formed but rather an ICI project, they could not be regarded as evidence that the appellant knew of the common plan.

100. In the appellant's submission, it was also impossible for the Court reasonably to consider that such knowledge had been acquired during the meetings. In fact, there is no evidence of its regular attendance at the meetings. It has not been established in which specific meetings it participated and, furthermore, it has been acknowledged that it did not participate in all the meetings.

101. The Court could not therefore reasonably hold Enichem responsible for all the infringements on the assumption that it knew of all the manifestations of the cartel.

102. In so far as this plea can be interpreted not merely as calling into question the Court's assessment of the evidence relating to Enichem's participation in the cartel's meetings, which, in the light of the rule in Hilti v Commission, would be manifestly inadmissible, it calls for the following observations.

103. In the explanations criticised by the appellant, the Court cites several passages from the PVC II decision which clearly show that the Commission considered that an undertaking was liable not only for its participation in a specific manifestation of the cartel but also in the cartel taken as a whole. In other words, individual liability also includes the fact of participating in the cartel by attending the meetings planning its introduction, without the need to prove that the undertaking participating in those meetings was also specifically associated with each measure implemented.

104. Thus, in paragraph 768 of its judgment, the Court referred to the second paragraph of point 25 of the PVC II decision, in which the Commission states that as regards the practicalities of proof, the Commission considers that besides demonstrating the existence of a cartel by convincing evidence, it is also necessary to prove that each suspected participant adhered to the common scheme. This does not however mean that documentary proof must exist to show that each participant took part in every manifestation of the infringement'.

105. In the following paragraph, the Court referred to point 31 in fine of the PVC II decision, which states that the essence of the present case is the combination of the producers over a long period towards a common unlawful end, and each participant must not only take responsibility for its own direct role as an individual, but also share responsibility for the operation of the cartel as a whole'.

106. The Commission's argument, which was approved by the Court, effectively confirms that an undertaking incurs liability by participating in the meetings of the cartel as such, in addition to the liability it incurs by participating in a specific manifestation of the cartel.

107. That echoes the wording of Article 85 of the Treaty, under which participation in an agreement whose object is anticompetitive constitutes an infringement, without the need to establish the existence of an anticompetitive effect.

108. Should it be considered, as the appellant claims, that the Court thereby stated that there was collective liability?

109. I do not think so.

110. The analysis described above is tantamount to maintaining that an undertaking's individual liability is not restricted to its participation in specific manifestations of the cartel but also includes its contribution to what might be called the general administration of the cartel.

111. This argument is not at all shocking and cannot be regarded as implying an acknowledgment of any collective liability. On the contrary, there is nothing unusual in holding, for example, that the liability of an undertaking which participated only briefly in the meetings held to administer the cartel is not the same as that of an undertaking which participated regularly, even if the Commission manages to prove only that both undertakings participated equally in specific manifestations of the cartel.

112. It is therefore perfectly possible for individual liability to arise both from participation in specific manifestations of the cartel and from a more general contribution to its implementation - what the Commission calls liability for the operation of the cartel as a whole - without by the same token being transformed into a collective liability.

113. However, Enichem relies on the case-law of the Court of First Instance, according to which it is possible to exclude an undertaking's liability for specific acts, in the absence of evidence of participation in the meetings during which certain specific initiatives were discussed.

114. None the less, the fact that it is possible to exclude liability for specific acts does not in any sense mean that there is no liability for contributing to an overall process, that is to say, participation in meetings whose anti-competitive object, namely the administration of a cartel, is not in any doubt.

115. Of course, the individual liability described in point 112 requires evidence of the participation of the individual undertaking concerned both in the said meetings and the specific manifestations and that the penalty adopted should be in proportion to the extent of the evidence established.

116. The Court of First Instance adopted that requirement since, on a general level, it noted, in paragraphs 774 and 777 of the contested judgment, that the Commission considered that it had demonstrated that each undertaking had participated in the meetings, the purpose of which was, inter alia, to fix prices in common and, on an individual level, determined whether, for each applicant, that was the case. It thus reached the conclusion, in paragraphs 931 to 941 of the contested judgment, that Enichem's individual participation, whether in meetings or in specific manifestations of the cartel, was established, without distortion being alleged.

117. It must therefore be stated that it is not possible, in the context of an appeal, to call into question that appraisal by the Court of First Instance of the evidence relating to the appellant's participation in the infringement.

118. It follows from the above that this plea should be rejected.

H - Inadequate access to the file

119. Enichem complains that the Court of First Instance held that the irregularity committed by the Commission in respect of the undertakings' access to the file could not, in itself, lead to the annulment of the PVC II decision and that defence rights were infringed only when the parties' opportunity to defend themselves had actually been affected.

120. It disputes the method used by the Court to determine the relevance of the documents not disclosed by the Commission and criticises the Court, in particular, for disregarding a large number of those documents, without even examining them, on the ground that they predated or postdated the period under consideration.

121. The appellant also takes the view that the failure to disclose all the documents in the file, except confidential or internal documents, constitutes per se an infringement of the rights of the defence.

122. It claims that the method used by the Court of First Instance in the present case shifts the burden of proof by requiring undertakings to establish a posteriori that certain documents could have been of use to them and allows the Commission to refuse access to the administrative file without practical consequences.

123. The appellant claims, therefore, that a mere finding of incomplete access to the file, other than the Commission's confidential documents and memoranda, should result in the annulment of the Commission decision.

124. This claim has no support in the case-law. That shows, on the contrary, that it is only when non-disclosure of a document could have harmed the appellant's defence that it may lead to the annulment of the Commission decision. Conversely, according to that case-law, non-disclosure of a document unlikely to be useful to the undertaking's defence has no impact on the validity of the decision.

125. It is important to point out, in that regard, that access to the file is not an end in itself, but is designed to allow undertakings effectively to exercise their rights of defence. It is therefore logical that, when an irregularity in access to the file has not had any effect on the exercise of those rights, it cannot lead to the annulment of the contested decision.

126. It follows from the above that the Court of First Instance was right to hold, in accordance with its existing case-law, that it was only necessary to annul the contested decision if non-disclosure of documents could have had harmful consequences for the appellant.

127. It was therefore perfectly reasonable for the Court to check that that condition was fulfilled in this case. It is hard to see how it could have applied its case-law any other way, if it were not to deprive that condition of all substance. The appellant is therefore wrong to criticise the Court for the very fact that it carried out that examination.

128. Enichem also considers that, in the examination, the Court made an error of assessment.

129. It must be stated that whether or not a given document is likely to be useful for the appellant's defence is a question of fact and, as such, is not open to review by the Court of Justice hearing an appeal.

130. However, the appellant claims that the very method of examination used by the Court of First Instance was incorrect, since the Court automatically excluded documents which either predated or postdated the period of inquiry. Yet, the appellant argues, it is quite conceivable that those documents contained evidence relating to the period of inquiry and might therefore have been of use to the appellant's defence.

131. Without it even being necessary to consider whether this argument is admissible, it must be stated that it is not conclusive. Even if it were founded, it is still for the appellant to prove the existence of documents in respect of which the Court of First Instance was wrong to hold that non-disclosure did not compromise the rights of the defence.

132. It cannot just state in abstracto that the Court had followed an incorrect criterion. It is still necessary to prove that the consequence of that error was that a document which, on account of its date, the Court had held could not have been of use for the appellant's defence, did, on the contrary, contain evidence on which the appellant could have relied.

133. This is all the more so in the case of the appellant's claim - that the Court of First Instance disregarded documents merely on account of their date - which directly conflicts with the Court's statement in paragraph 1040 of the contested judgment, that it is also necessary to exclude the documents and extracts relied on by the applicants where they concern a period prior to the origin of the cartel or after the date of the end of the infringement used by the Commission in calculating the amount of the fine. For that purpose, it is not the date of the document which is important but the relevance of the extract relied upon by the applicants with regard to the period of the infringement'.

134. Enichem does not identify any document containing evidence useful for its defence in respect of which the Court wrongly held that non-disclosure did not result in infringement of the rights of the defence.

135. Accordingly, the appellant has not established that the irregularity committed in respect of access to the file had the slightest effect on its opportunity to defend itself.

136. This plea should therefore be rejected.

I - Incorrect attribution of liability for the infringement to the appellant, as group holding company, for the purpose of taking its turnover into consideration when determining the amount of the fine

137. Enichem complains of the fact that, in paragraphs 978 to 992 of the contested judgment, the Court of First Instance accepted that the appellant was an addressee of the PVC II decision, as holding company for the ENI group liable for the infringement, on behalf of Enichem Anic, one of the PVC operating companies in the group. It claims that the purpose of the choice of addressee was to take into account the holding company's turnover, which was significantly larger than that of the operating company. It requests that that choice be declared unlawful and, accordingly, that the PVC II decision be annulled.

138. It criticises, in particular, the Court's finding in paragraph 986 of the contested judgment, that:

In this case, it appears that, as it was entitled to do (Boehringer I, paragraph 55; Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ v Commission [1983] ECR 3369, paragraphs 51 to 53), the Commission initially determined the total fine, which it then divided between the undertakings by reference to the average market share of each and any attenuating or aggravating circumstances which might apply to any of them individually. Therefore, subject to the application of Article 15(2) of Regulation No 17 fixing the maximum fine which the Commission may impose, the turnover of the holding company was not taken into account in determining the amount of the individual fine imposed on the applicant ...'

139. It is important to note that, in the context of this plea, Enichem does not raise the matter of whether the calculation method used by the Commission constituted an error of law, a matter which is unquestionably a point of law and, as such, open to review by the Court of Justice. The appellant merely disputes the statement made by the Court of First Instance that the Commission, when determining the amount of the fine, did not take into account the turnover of the undertakings concerned.

140. However, the Court's finding relating to the manner in which the Commission calculated that amount is an assessment of fact which cannot be the subject of review by the Court of Justice hearing an appeal, unless the Court of First Instance has distorted the facts.

141. The appellant is clearly very far from adducing the slightest inkling of proof of such distortion. It merely persists in repeating that it has extensive doubts as to the veracity of the Court's statement.

142. The appellant's reference to the fact that the turnover must inevitably have been relevant since Article 15(2) of Regulation No 17 required the Commission not to impose a fine exceeding 10% of the turnover of the undertaking responsible for the infringement does nothing to detract from that finding.

143. Indeed, the fact that the turnover was taken into account in order to comply with that provision still does not prove, contrary to the appellant's claim, that it was useful other than for fixing a maximum limit, which is not alleged to have been exceeded. Furthermore, the appellant does not dispute the Commission's statement that the fine was less than 10% of the turnover of the operating company and, a fortiori, of that of the holding company.

144. Furthermore, the appellant's statement that the Court had itself stated that the undertaking's turnover was one of the factors taken into account by the Commission in order to determine the overall fine before distributing it between the convicted undertakings is incorrect. A reading of paragraphs 1174 et seq. of the contested judgment reveals only that, according to the Court, the Commission took into account the combined size of the undertakings concerned'.

145. It is apparent from the context that the Court was alluding to points 51 to 53 of the PVC II decision, in which the Commission cites, amongst the criteria which it took into account, the fact that the undertakings in question accounted for virtually the whole' of the PVC market. It did not therefore allude to the turnover of the undertakings, which is not surprising since those parts of the PVC II decision to which it refers do not do so either.

146. It follows from the above that, since the Commission, contrary to the appellant's argument, did not use the turnover of the undertakings concerned in order to determine the amount of the fine, the question of whether, for that purpose, the operating company should have been held liable for the infringement rather than the holding company is clearly irrelevant.

147. This plea should therefore be rejected.

J - Infringement of Article 15(2) of Regulation No 17

148. Enichem maintains that the Court of First Instance, in paragraphs 1146 to 1148 of the contested judgment, erred in its assessment of the connection between the turnover for the accounting year preceding the Commission's decision, to which Article 15(2) of Regulation No 17 refers, and the amount of the fine.

149. In the appellant's submission, the Court was wrong to disregard its claim that the Commission, in the PVC II decision, imposed a fine of an identical amount, in absolute value, to that of the fine fixed in the PVC I decision, without taking into account the fact that, in the circumstances, the relation between the turnover established and the amount of the fine fixed by the PVC II decision was inevitably different from the relation between the turnover established and the fine fixed by the PVC I decision.

150. I agree with the Court's assessment that the requirements of Article 15(2) of Regulation No 17 are met if the amount of the fine imposed by the Commission does not exceed 10% of the turnover of the undertaking concerned for the preceding accounting year.

151. That is apparent from the clear wording of the provision.

152. Enichem's argument in that regard, that the relation between the turnover and the fine inevitably altered between the two decisions, is therefore irrelevant in the light of that provision, since, as in the present case, the 10% threshold was not exceeded.

153. Indeed, the sole aim of the provision is to impose a maximum limit on the Commission's power to impose penalties. On the other hand, it is not designed to determine more specifically the relation there should be between the amount of the fine and the turnover of the censured undertaking.

154. In that regard, the appellant mentions the need to make sure that the penalty is neither excessive nor inadequate. The principle of proportionality unquestionably applies to the matter. However, to ensure compliance with the principle, it is necessary to take into account criteria other than turnover, as is shown by the case in point, in which the Commission followed a series of criteria such as the gravity of the conduct in question, the importance of the product or the market share of the undertakings.

155. The appropriate amount of the fine is not therefore the result of a simple arithmetical relation with the turnover for the preceding financial year, but the result of a whole series of factors.

156. It is apparent from the above that the Court was right to hold that Article 15(2) of Regulation No 17 had not been infringed.

K - Inadequate statement of reasons for the criteria for calculating the fine

157. Enichem maintains that paragraphs 1172 to 1184 of the contested judgment, in which the Court considered the plea alleging that inadequate reasons were given for the criteria adopted by the Commission for calculating the fine, conflict with paragraphs 986 and 1191 of the judgment and are inconsistent with the most recent case-law relating to the Commission's obligation to provide a statement of reasons.

158. The appellant points out that, in order to reject the plea raised, the Court of First Instance analysed points 51 to 54 of the PVC II decision and concluded that they contained a sufficient and relevant indication of the criteria taken into consideration, amongst which appeared, in point 53 of the decision, the respective importance [of the undertakings] in the PVC market'.

159. However, a producer's importance could be deduced from its market share as well as from its turnover. That expression is therefore ambiguous.

160. The Court therefore contradicts itself by stating both that the criterion of the market shares was conclusive and that the statement of reasons was adequate, since the statement of reasons makes, at best, only an ambiguous reference to the market shares.

161. Enichem adds that the Commission should be required to give its calculations within the body of the decision so that undertakings and the Community judicature are not obliged to guess how the general criteria stated are reflected in figures, and in order to allow observations by the parties and a review of legality by the Community judicature.

162. The Court of First Instance was therefore wrong merely to indicate, in paragraph 1180 of the contested judgment, that it was desirable' for undertakings to be able to determine in detail the method whereby the fine imposed had been calculated, without their being obliged, in order to do so, to bring court proceedings against the decision.

163. That argument is unfounded.

164. It must be remembered that, in paragraph 1183 of the contested judgment, the Court of First Instance found as a matter of fact that the appellant already knew the detailed method of calculating the fine imposed since, in the course of the actions challenging the PVC I decision, it had obtained information in that respect from a table produced by the Commission at the Court's request for clarification and annexed to the application lodged against the PVC II decision. Moreover, the appellant itself refers to it.

165. According to settled case-law, the requirements which the statement of reasons of a decision must fulfil depend on the context, which, in this case, includes the appellant's prior knowledge gained in consequence of the PVC I procedure.

166. Since the similarity between the two decisions in that respect is not disputed, the Court's finding that, in the circumstances, the PVC II decision was sufficiently reasoned cannot be disputed.

167. Furthermore, more specifically concerning the question of the reasoning being included in the body of the decision rather than in a table supplied subsequently, the Court of Justice held, in a context similar to the one in this case, that the requirement to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity and duration of the infringement. Only if those factors are not stated is the decision vitiated by failure to state reasons.

168. However, in the present case, the Court of First Instance stated, without being contradicted by the appellant, that, in paragraph 52 of the contested decision, the Commission explained its reasoning in relation to the gravity of the infringement and, in paragraph 54, considered the duration of the infringement.

169. The Court was therefore right, for that reason also, to reject the plea alleging that the PVC II decision was insufficiently reasoned, whatever interpretation should be given to point 53 of the Commission's decision.

170. This plea should therefore be rejected.

L - Misinterpretation and misapplication of Community law and inadequate appraisal of the evidence concerning the relation between the fine imposed on the appellant and its market share

171. Enichem states that it maintained before the Court of First Instance that, for the purpose of determining the amount of the fine, the Commission had committed an error in respect of the appellant's market share by assessing it to be an average of 6% for the period 1980-1982 and 15% for the years 1983-1984. The appellant points out that, at all stages of the procedure, it had itself claimed to have an average share of under 4% for the first period, a share of 12.8% for 1983 and of 12.3% for 1984.

172. The appellant complains that, in paragraphs 615 and 616 of the contested judgment, the Court of First Instance held that the data provided by the appellant was unreliable and, in any event, deceptive, since it had not specified the bases on which it had determined its market share for 1984 and had reduced' that share by relating those sales figures not to sales of European producers but to figures for European consumption, which were necessarily higher since they included imports.

173. According to Enichem, the Court's findings are incorrect and show a failure to take into account the information the appellant had submitted. It points out, in particular, that, even if its sales were related to those of European producers, there would still be a significant difference between its figures and those stated by the Commission.

174. Enichem also criticises the Court for having stated, in paragraphs 1201 to 1204 of the contested judgment, that, contrary to what the appellant maintains, the Commission had assessed the appellant's market share to be less than 10%, not 15%, during the period 1980 to 1984.

175. The appellant points out, in that regard, that the average of 10% was obtained from the figures of 6% and 15% assessed by the Commission for the years 1980-1982 and 1983-1984 respectively, which it has always refused to accept as applicable to it. It submits that its average market share during the four years in question was 7.2% - or 7.7% if its sales were related to those of European producers - and therefore significantly lower than the 9.6% stated by the Commission. On the basis of that market share, the fine imposed on Enichem should have been less than ECU 2 000 000, instead of the ECU 2 500 000 it was ordered to pay.

176. What are we to make of this argument?

177. The appellant seems, a priori, to be raising a plea of pure fact since it submits for appraisal by the Court of Justice the figures which have already been examined by the Court of First Instance.

178. Referring to the method of examining the evidence as inadequate changes nothing in that regard. Indeed, in the present case, it is impossible to speak of an inadequate examination since the Court of First Instance not only raised questions on the matter but also devoted considerable argument to it in its judgment.

179. It really has to be said that the only complaint of inadequacy which the appellant actually makes against the Court of First Instance is that it did not reach the same conclusion as the appellant with regard to the figures provided by the appellant and by the Commission. Enichem disagrees with the result of the examination carried out by the Court of First Instance of the data which the appellant provided and requests the Court of Justice to carry out another.

180. This is therefore what might be described as a standard example of a plea of fact, which is not open to review by the Court of Justice hearing an appeal.

181. Consequently, the plea is manifestly inadmissible unless it is alleged that the Court of First Instance has distorted the facts.

182. However, the appellant invokes distortion only in order to call into question the Court's statement, in paragraph 1204 of the contested judgment, that the appellant had not challenged the fixing of its average market share at 10%.

183. That is to no avail, since the Court did not state that the figure was unchallenged, but held that there had been no serious challenge by the applicant.

184. That argument is therefore inseparable from the main complaint put forward by the appellant, which is that the Court of First Instance rejected the data it had provided. It is therefore necessary to consider whether the Court distorted the facts.

185. The Court of First Instance took into account the fact that the appellant did not give the basis for its figures, and therefore held that it was unable to consider them sufficiently reliable.

186. It must be stated, in the light of the annexes to the application, on which the appellant bases its view, that the Court's assessment cannot be challenged. The documents in question either contain the figures without any explanation or, in one case, include explanations, provided by the appellant, which tend to show the uncertainty surrounding the data which served as a reference for drawing up those figures.

187. The appellant also criticises the Court's statement that, since the sales figures produced by Enichem related to European consumption, not to sales of European producers, the market share claimed by the applicant was substantially reduced.

188. However, it does not dispute the fact that it was reduced but points out that there had been no intention to conceal on its part. The market of a product is not defined on the basis of the sales of the producers accused by the Commission, but on the basis of all the sales on the geographical market of reference. Furthermore, Enichem does not know what reference was used by the other undertakings to calculate their market shares.

189. In that regard it should be pointed out, in any event, that it was for the Court of First Instance to compare the appellant's figures with that of the Commission. It was therefore reasonable for the Court to note that there was a difference in methodology and that that difference had an inevitable and undisputed arithmetical effect.

190. It is apparent from the above that the appellant has not established in what respect the Court of First Instance distorted the facts in this case. Its plea should therefore be rejected as inadmissible.

M - Infringement of the principle of proportionality during the fixing of the amount of the fine

191. Enichem points out that the fine imposed by the PVC II decision is the same as that imposed by the PVC I decision. However, the real value of that fine, assessed at the date of each of the two decisions, is very different and constitutes an unfair penalty. Converted in 1988, the sum of ECU 2 500 000 was equivalent to ITL 3 842 000 000 whereas, at the 1994 conversion rate, it represented ITL 4 835 000 000. In real terms, that means a 20% increase in the fine, although the criteria according to which it had been determined, in particular the gravity and duration of the infringement, were identical.

192. Enichem disputes the grounds on which the Court rejected that complaint in paragraphs 1215 to 1224 of the contested judgment.

193. It points out that the Commission's right' to express the amount of the fine in ecus, as stated by the Court, is a power which the Commission is required to exercise in compliance with fundamental principles, including the principle of proportionality.

194. In order to comply with that principle, the Commission could very easily have adopted a method enabling it to retain the value of the fine originally imposed.

195. Enichem also criticises the Court for having held that the risk of variations in exchange rates was inevitable and that the appellant should have protected itself against that risk for as long as the case was pending before the Court of First Instance and then before the Court of Justice.

196. It maintains, in that regard, that the fluctuation in exchange rates is a vagary peculiar to trade, but unrelated to the application of the law. The close connection between the amount of the fine and the gravity of the infringement committed cannot be altered by wholly external factors.

197. Furthermore, it is, the appellant submits, incorrect to say that Enichem should have protected itself against the risk of change during the proceedings before the Court of Justice. Indeed, during the corresponding period, any obligation to pay the fine had disappeared since the PVC I decision had been declared non-existent.

198. However, it should be pointed out in that regard that, since the judgment of the Court of First Instance was subject to appeal, the appellant could not behave as if that declaration of non-existence were definitive.

199. Enichem adds, finally, that the Commission should have accepted the responsibility for causing the nullity of the PVC I decision and Enichem should not have had to bear an additional burden owing to an error committed by others.

200. The Court of Justice has already had occasion to look into the matter raised by the appellant. A similar line of argument was the subject of its consideration in Sarrió v Commission and Enso Española v Commission.

201. It held that monetary fluctuations are an element of chance which may produce advantages and disadvantages which the undertakings have to deal with regularly in the course of their business activities and whose very existence is not such as to render inappropriate the amount of a fine lawfully fixed'.

202. The Court added that, in any event, the maximum amount of the fine, determined by virtue of Article 15(2) of Regulation No 17 by reference to turnover in the business year preceding the adoption of the Decision, limits the possible harmful consequences of monetary fluctuations'.

203. Let us remember that it is not claimed that, in the present case, that limit has been exceeded.

204. It follows from the above that this plea should be rejected. Therefore, the appeal should be rejected in its entirety.

Conclusion

205. In the light of the foregoing considerations, I propose that the Court should:

- dismiss the appeal;

- order the appellant to pay the costs.