Keywords

Summary



Keywords

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1. Competition ° Administrative procedure ° Access to the file ° Purpose ° Non-disclosure of documents held by the Commission ° Examination by the Court of First Instance in the light of the observance of the rights of the defence in each particular case

2. Procedure ° Submission of new pleas in law during the course of the proceedings ° Relevant provisions of the Rules of Procedure laying down neither a time-limit nor any particular formality ° No time bar

(Rules of Procedure of the Court of First Instance, Art. 48(2))

3. Actions for annulment ° Pleas in law ° Infringement of essential procedural requirements ° Notification, in breach of the Commission' s Rules of Procedure, of a decision not previously authenticated

(EEC Treaty, Art. 173; Commission' s Rules of Procedure, Art. 12)

4. Actions for annulment ° Pleas in law ° Infringement of essential procedural requirements ° Regularization after an action has been brought ° Not permissible

(EEC Treaty, Art. 173)

Summary

1. The purpose of providing access to the file in competition cases is to enable the addressee of a statement of objections to examine evidence in the Commission' s file so that on the basis of that evidence it may effectively express its views on the conclusions reached by the Commission in its statement of objections.

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

Any infringement of the rights of the defence and the consequences thereof must therefore be examined by the Court in relation to the specific circumstances of each particular case. In the light of the objections actually raised by the Commission against the undertaking concerned and the latter' s defence to such objections it is possible to assess the relevance to that defence of documents which have not been disclosed, both those which may exculpate the undertaking and those showing the existence of the infringement alleged.

2. Article 48(2) of the Rules of Procedure of the Court of First Instance lays down neither a time-limit nor any particular formality for the submission of a new plea in law, where such a submission is admissible; in particular, it does not provide that, if it is not to be time-barred, such a submission must be made immediately, or within a particular period, after the matters of fact or of law to which it refers come to light. Since the submission of a plea in law is involved, a time bar, restricting the ability of the party concerned to put forward all matters necessary for the success of its claims, should not in principle be admitted unless it is the subject of express, unequivocal rules.

3. The authentication of acts provided for in the first paragraph of Article 12 of the Commission' s Rules of Procedure, which must take place after their adoption by the college of Commissioners and before their notification or publication, is intended to guarantee legal certainty by ensuring that the text adopted by the college of Commissioners becomes fixed in the languages which are binding. Accordingly, in the event of a dispute, authentication enables it to be verified that the texts notified or published correspond precisely to the text adopted and so with the intention of the author. It therefore follows that authentication constitutes an essential procedural requirement within the meaning of Article 173 of the EEC Treaty and that a decision notified without having been authenticated is vitiated by a material defect, irrespective of whether there is any discrepancy between the text adopted and the one published or notified.

4. Once an action contesting a measure vitiated by infringement of essential procedural requirements has been lodged, it is not possible for the institution which adopted that measure to cure that defect simply by taking the step of retroactive regularization, for example by authenticating a measure which had been notified without completion of that formal step.

That is especially true where a decision is involved which imposes a fine on the applicant, because regularization carried out after the action had been brought would remove ex post facto any basis for a plea alleging such a defect. Such an approach would impair legal certainty and be contrary to the interests of persons affected by a decision imposing a fine.