Case C-190/01 P: Appeal brought on 2 May 2001 by Mannesmannröhren-Werke AG against the judgment delivered on 20 February 2001 by the First Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-112/98 between Mannesmannröhren-Werke AG and Commission of the European Communities
Date: 2001-07-28
Institutions: Court of Justice
Subjects: General Court (EU), Germany, action for annulment (EU), industrial enterprise, infringement of EU law, market-sharing agreement

28.7.2001

EN

Official Journal of the European Communities

C 212/11

Appeal brought on 2 May 2001 by Mannesmannröhren-
Werke AG against the judgment delivered on 20 February
2001 by the First Chamber, Extended Composition, of the
Court of First Instance of the European Communities in
Case T-112/98 between Mannesmannröhren-Werke AG
and Commission of the European Communities

(Case C-190/01 P)

(2001/C 212/18)

An appeal against the judgment delivered on 20 February
2001 by the First Chamber, Extended Composition, of the
Court of First Instance of the European Communities in
Case T-112/98 between Mannesmannröhren-Werke AG and
Commission of
the European Communities was brought
before the Court of Justice of the European Communities on
2 May 2001 by Mannesmannröhren-Werke AG, represented
by Dr Martin Klusmann and Dr Frederik Wiemer, Rechtsanwäl-
te, of Freshfields Bruckhaus Deringer, Düsseldorf.

The appellant claims that the Court should:

1.

Set aside in part the judgment of the Court of First
Instance of the European Communities of 20 February
2001 in Case T-112/98 Mannesmannröhren-Werke AG
v Commission of the European Communities (1) in so far
as it dismissed the action by Mannesmannröhren-Werke
AG against Commission Decision C(98) 1204 of 15 May
1998 relating to a procedure under Article 81 EC;

2. Annul Article 1 of Commission Decision C(98) 1204 of
15 May 1998 relating to a procedure under Article 81
EC in its entirety; in the alternative, in accordance with
Article 54 of the EC Statute of the Court: Refer the case
back to the Court of First Instance of the European
Communities to give judgment in accordance with the
view of the law taken by the Court of Justice;

3. Order the Commission to pay the costs of the entire

proceedings.

Pleas in law and main arguments

— Breach of the legal principle nemo tenetur se ipsum accusare:
The Court of First Instance wrongly relied essentially on
the judgment of the Court of Justice of 18 October 1989
in Case C-374/87 Orkem v Commission. It has since
become settled case-law of the European Court of Human
Rights (2) that Article 6 of the European Convention on
Human Rights impliedly contains the fundamental right
nemo tenetur se ipsum accusare. Similarly, the Court of First
Instance disregarded the principles of Community law
expressed in the second paragraph of Article 47 and
Article 48 of the Charter of Fundamental Rights of the
European Union, the level of protection of which, under
Article 52(3) of the Charter, may not fall short of that
under the European Convention on Human Rights; while

the Charter has not yet been ratified, it creates no new
law but merely codifies unwritten general principles of
Community law.

The Court of First Instance erred in law by failing to
recognise that the principle of administrative effectiveness
— in the present case the effective enforcement of
Article 81 EC — cannot justify the restriction of funda-
mental Community rights from the point of view of effet
utile. In the present case the Court of First Instance
infringed the essential content of the fundamental right
nemo tenetur se ipsum accusare. The restriction is moreover
disproportionate, since it was possible for the investi-
gation to be concluded favourably from the Commission’s
point of view in another way, and the Commission has
in the meantime taken a decision in the case and imposed
fines on the undertakings concerned, including the appli-
cant.

The Court of First Instance further erred in law by
assuming that it is only an admission which may not be
required, and that an accused must, however, provide
evidence other than an admission, in particular documen-
tary evidence, against himself. However, ‘admission’ and
‘documentary evidence’ are qualitatively evidence of equal
value, either of which may on its own prove participation
in an infringement.

in
The Court of First Instance erred in law, finally,
considering that the recognition of a fundamental right
may be made to depend on all Member States generally
recognising such a right in their national legal systems.
Since all EU Member States are in any case also Con-
tracting States to the European Convention on Human
Rights, they must correspond to the level of protection
of the Convention, as implemented by the Funke line of
case-law;

— Breach of the legal principles of definiteness and legal
certainty: The dividing line to be drawn, on the basis
of the judgment at first instance, between an answer
constituting an admission, which is not due, and a factual
answer, which is due, is unconvincing and cannot be
made with precision;

— Breach of Article 6(2) EU;

— Breach of Article 6(1) EU;

— Disregard of the guarantees of national law for natural

persons;

— Incorrect presentation of the applicant’s submissions.

(1) OJ C 150 of 19.5.2001, p. 21, not yet published in the ECR.
(2) Judgment of 25.2.1993 Funke v France; judgment of 17.12.1996

Saunders v the United Kingdom.