BE OBSERVED IN ALL PROCEEDINGS , EVEN THOSE OF AN ADMINISTRATIVE NATURE , AND LAYS DOWN IN PARTICULAR THAT THE UNDERTAKING CONCERNED MUST HAVE BEEN AFFORDED THE OPPORTUNITY , DURING THE ADMINISTRATIVE PROCEDURE , TO MAKE KNOWN ITS VIEWS ON THE TRUTH AND RELEVANCE OF THE FACTS AND CIRCUMSTANCES ALLEGED AND ON THE DOCUMENTS USED BY THE COMMISSION TO SUPPORT ITS CLAIM THAT THERE HAS BEEN AN INFRINGEMENT OF THE TREATY .
3.THE STATEMENT OF OBJECTIONS MUST SET FORTH CLEARLY ALL THE ESSENTIAL FACTS UPON WHICH THE COMMISSION IS RELYING AT THAT STAGE OF THE PROCEDURE FOR THE APPLICATION OF THE COMMUNITY COMPETITION RULES . THAT MAY BE DONE SUMMARILY AND THE SUBSEQUENT DECISION IS NOT NECESSARILY REQUIRED TO BE A REPLICA OF THE STATEMENT OF OBJECTIONS . THE COMMISSION MUST TAKE INTO ACCOUNT THE FACTORS EMERGING FROM THE ADMINISTRATIVE PROCEDURE IN ORDER EITHER TO ABANDON SUCH OBJECTIONS AS HAVE BEEN SHOWN TO BE UNFOUNDED OR TO AMEND AND SUPPLEMENT ITS ARGUMENTS , BOTH IN FACT AND IN LAW , IN SUPPORT OF THE OBJECTIONS WHICH IT MAINTAINS , PROVIDED HOWEVER THAT IT RELIES ONLY ON FACTS ON WHICH THE PARTIES CONCERNED HAVE HAD AN OPPORTUNITY TO MAKE KNOWN THEIR VIEWS AND PROVIDED THAT , IN THE COURSE OF THE ADMINISTRATIVE PROCEDURE , IT HAS MADE AVAILABLE TO THEM THE INFORMATION NECESSARY FOR THEIR DEFENCE .
4.WHERE IN ITS STATEMENT OF OBJECTIONS THE COMMISSION EXPRESSLY STATES THAT IT WILL CONSIDER WHETHER IT IS APPROPRIATE TO IMPOSE FINES ON THE UNDERTAKINGS CONCERNED AND INDICATES THE MAIN FACTUAL AND LEGAL CRITERIA CAPABLE OF ATTRACTING A FINE , SUCH AS THE GRAVITY AND THE DURATION OF THE ALLEGED INFRINGEMENT AND WHETHER THAT INFRINGEMENT WAS COMMITTED ' ' INTENTIONALLY OR NEGLIGENTLY ' ' , IT FULFILS ITS OBLIGATION TO RESPECT THE RIGHT OF UNDERTAKINGS TO BE HEARD , INASMUCH AS IT GIVES THEM THE NECESSARY DETAILS TO ENABLE THEM TO DEFEND THEMSELVES NOT MERELY AGAINST THE FINDING OF AN INFRINGEMENT BUT ALSO AGAINST THE IMPOSITION OF FINES .
ON THE OTHER HAND , THE UNDERTAKINGS CANNOT REQUIRE THE COMMISSION TO INDICATE TO THEM , IN THE COURSE OF THE ADMINISTRATIVE PROCEDURE , THE CRITERIA ON THE BASIS OF WHICH IT INTENDS TO CALCULATE THE FINES . TO GIVE INDICATIONS AS REGARDS THE LEVEL OF THE FINES ENVISAGED , BEFORE THE UNDERTAKINGS HAVE BEEN GIVEN AN OPPORTUNITY TO SUBMIT THEIR OBSERVATIONS ON THE ALLEGATIONS AGAINST THEM , WOULD BE TO ANTICIPATE THE COMMISSION ' S DECISION AND WOULD THUS BE INAPPROPRIATE .
5.IF THE UNDERTAKINGS AGAINST WHICH PROCEEDINGS UNDER THE COMMUNITY COMPETITION RULES HAVE BEEN BROUGHT WERE NOT ACQUAINTED OR WERE ONLY PARTIALLY ACQUAINTED , BEFORE THE COMMISSION ADOPTED ITS FINAL DECISION , WITH THE DOCUMENTS ON WHICH THE COMMISSION BASED ITS FINDINGS , THE COMMISSION CANNOT BASE ITS FINAL DECISION ON THE CONTENTS OF THOSE DOCUMENTS .
HOWEVER , IN SO FAR AS THE SAID FINDINGS RELATE TO MATTERS WHICH ARE OF PURELY SECONDARY IMPORTANCE IN RELATION TO THE INFRINGEMENTS FOUND TO HAVE BEEN