CELEX: C1999/352/19
Language: en
Date: 1999-12-04 00:00:00
Title: Case C-238/99 P: Appeal brought on 24 June 1999 by Limburgse Vinyl Maatschappij NV against the judgment delivered on 20 April 1999 by the Third Chamber, Extended Composition, of the Court of First Instance of the European Communities in Joined Cases T-305/94, T-306/94, T-307/94, T-313/94, T-314/94, T-315/94, T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 between Limburgse Vinyl Maatschappij NV, Elf Atochem SA, BASF AG, Shell International Chemical Company Ltd, DSM NV and DSM Kunststoffen BV, Wacker-Chemie GmbH, Hoechst AG, Société Artésienne de Vinyle, Montedison SpA, Imperial Chemical Industries plc, Hüls AG and Enichem SpA, and the Commission of the European Communities

4.12.1999                EN                     Official Journal of the European Communities                                      C 352/9
                      ORDER OF THE COURT                                   Court of First Instance of the European Communities (Third
                                                                           Chamber) of 16 March 1998 in Case T-235/97 Goldstein v
                           of 2 July 1999                                  Commission, not published in the European Court Reports,
                                                                           seeking to have that order set aside, the other party to
                                                                           the proceedings being the Commission of the European
in Case C-158/99 (reference for a preliminary ruling from
                                                                           Communities (Agent: Richard Lyal) — the Court (Fourth
the Tribunal Tributário de Primeira Instância de Faro):
                                                                           Chamber), composed of: P.J.G. Kapteyn, President of the
    Corticeira Amorim-Algarve Lda v Fazenda Pública (1)
                                                                           Chamber, J.L. Murray (Rapporteur) and H. Ragnemalm, Judges;
                                                                           J. Mischo, Advocate General; R. Grass, Registrar, has made an
                          (Inadmissibility)                                order on 8 July 1999, the operative part of which is as follows:
                          (1999/C 352/17)                                  1. The appeal is dismissed.
                                                                           2. Mr Goldstein is to pay the costs.
                   (Language of the case: Portuguese)
In Case C-158/99: reference to the Court under Article 234 EC              (1) OJ C 234 of 25.7.1998.
(formerly Article 177 of the EC Treaty) from the Tribunal
Tributário de Primeira Instância de Faro (Portugal) for a
preliminary ruling in the proceedings pending before that
court between Corticeira Amorim-Algarve Lda and Fazenda
Pública, intervener: Ministério Público, on the interpretation of
Council Directive 69/335/EEC of 17 July 1969 concerning
indirect taxes on the raising of capital (OJ, English Special              Appeal brought on 24 June 1999 by Limburgse Vinyl
Edition 1969 (II), p. 412), in the version thereof resulting from          Maatschappij NV against the judgment delivered on
Council Directive 85/303/EEC of 10 June 1985 (OJ 1985                      20 April 1999 by the Third Chamber, Extended Compo-
L 156, p. 23) — the Court, composed of: G.C. Rodrı́guez                    sition, of the Court of First Instance of the European
Iglesias, President, P.J.G. Kapteyn, J.-P. Puissochet, G. Hirsch           Communities in Joined Cases T-305/94, T-306/94,
and P. Jann, Presidents of Chambers, J.C. Moitinho de Almeida,             T-307/94, T-313/94, T-314/94, T-315/94, T-316/94,
C. Gulmann, J.L. Murray, D.A.O. Edward, H. Ragnemalm (Rap-                 T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94
porteur), L. Sevón, M. Wathelet and R. Schintgen, Judges;                 between Limburgse Vinyl Maatschappij NV, Elf Atochem
G. Cosmas, Advocate General; R. Grass, Registrar, has made an              SA, BASF AG, Shell International Chemical Company Ltd,
order on 2 July 1999, the operative part of which is as follows:           DSM NV and DSM Kunststoffen BV, Wacker-Chemie
                                                                           GmbH, Hoechst AG, Société Artésienne de Vinyle, Monte-
The reference for a preliminary ruling made by the Tribunal Tributário    dison SpA, Imperial Chemical Industries plc, Hüls AG and
de Primeira Instância de Faro is inadmissible.                             Enichem SpA, and the Commission of the European
                                                                                                     Communities
(1) OJ C 188 of 3.7.1999.
                                                                                                  (Case C-238/99 P)
                                                                                                   (1999/C 352/19)
                                                                           An appeal against the judgment delivered on 20 April 1999
                                                                           by the Third Chamber, Extended Composition, of the Court of
                      ORDER OF THE COURT                                   First Instance of the European Communities in Joined Cases
                                                                           T-305/94, T-306/94, T-307/94, T-313/94, T-314/94,
                         (Fourth Chamber)                                  T-315/94, T-316/94, T-318/94, T-325/94, T-328/94,
                                                                           T-329/94 and T-335/94 between Limburgse Vinyl Maatschap-
                           of 8 July 1999                                  pij NV, Elf Atochem SA, BASF AG, Shell International
                                                                           Chemical Company Ltd, DSM NV and DSM Kunststoffen BV,
                                                                           Wacker-Chemie GmbH, Hoechst AG, Société Artésienne de
in Case C-199/98 P: Anthony Goldstein v Commission of                      Vinyle, Montedison SpA, Imperial Chemical Industries plc,
                  the European Communities (1)                             Hüls AG and Enichem SpA, and the Commission of the
                                                                           European Communities was brought before the Court of
(Appeal — Manifestly inadmissible and manifestly                           Justice of the European Communities on 24 June 1999 by
                       unfounded application)                              Limburgse Vinyl Maatschappij NV, represented by I.G.F. Cath,
                                                                           Advocaat with a right of audience before the Hoge Raad der
                          (1999/C 352/18)                                  Nederlanden, with an address for service in Luxembourg at the
                                                                           Chambers of L. Dupong, 4-6 Rue de la Boucherie.
                     (Language of the case: English)                       The appellant claims that the Court should:
In Case C-199/98 P: Anthony Goldstein, residing at Harrow                  (1) set aside, either wholly or in part, the judgment delivered
(United Kingdom), represented by Raymond St. John Murphy,                      by the Court of First Instance of the European Communities
Solicitor, of Messrs Merriman White, 3 King’s Bench Walk,                      on 20 April 1999 against which the present appeal has
Inner Temple, London — appeal against the order of the                         been brought, and terminate the proceedings;
 ---pagebreak--- C 352/10               EN                    Official Journal of the European Communities                                      4.12.1999
(2) alternatively: set aside the contested judgment, either             — Lapse of time (reasonable period): the appellant has
    wholly or in part, and refer the case back to the Court of             advanced detailed, reasoned arguments — even on the sole
    First Instance in order for the proceedings to be resumed;             basis of the fourth plea advanced in its appeal — to show
                                                                           that Article 6 of the ECHR is applicable per se to the
                                                                           Community procedure in competition matters. By failing
(3) annul, alternatively declare void, either wholly or in part,           (without giving any reasons therefor) to take that funda-
    the contested decision of the Commission of 27 July 1994;              mental point into account, the Court of First Instance has
                                                                           infringed Article 6 of the ECHR. The Court of First Instance
(4) annul, alternatively reduce, the fine imposed on the                   wrongly held in paragraph 123 of the contested judgment
    appellant by the Commission’s decision of 27 July 1994;                that the period during which the 1988 decision formed
                                                                           the subject-matter of the proceedings before the Court of
                                                                           First Instance cannot be taken into account in determining
(5) adopt such further measures as the Court may think fit;                the duration of the procedure before the Commission. For
                                                                           the purposes of calculating the relevant period, it is
                                                                           necessary to take into account a period commencing —
(6) order the Commission, as the party at fault, to pay the                according to the findings of the Court of First Instance —
    costs of both sets of proceedings.                                     in November 1983 and ending — according to the
                                                                           case-law of the European Court of Human Rights — on
                                                                           the date of the contested judgment, that is to say, on
                                                                           20 April 1999, totalling 15 years and five months, to
Pleas in law and main arguments                                            which must be added the duration of the appeal proceed-
                                                                           ings. Even if the judgment of the Court of Justice of
                                                                           15 June 1994 is regarded as marking the end of the
— Res judicata: the case-law of the Court of Justice, which                period which commenced in November 1983, and the
    places specific, previously decided points ‘beyond dis-                starting-point of the new period is taken to be the
    cussion’, so to speak, inasmuch as those points have been              Commission’s decision of 27 July 1994, the provisional
    definitively determined or have not been challenged on                 conclusion of the matter marked by the contested judg-
    appeal, cannot be ‘turned upside down’, as they are by the             ment gives rise (disregarding the appeal proceedings) to a
    Court of First Instance, by the argument that all other, as            period of four years and nine months. According to the
    yet undecided points thus remain open to debate. That is               settled case-law of the European Court of Human Rights, a
    tantamount to giving the Commission ‘carte blanche’,                   reasonable period in the case of a ‘criminal charge’ should
    following the annulment of any decision (imposing a                    not exceed two years, unless special circumstances can be
    penalty), to adopt a new decision, until such time as the              shown to exist. That means that, however the period is
    (joint) efforts made by the appellants and the Community               calculated, it does not in any event conform to the ‘two-year
    legislature have rendered the decision ‘free from defects’.            norm’ laid down by the European Court of Human Rights,
    The Community procedure in competition matters                         and is therefore excessive in any event. By failing (without
    resulting in the imposition of a fine must be regarded as a            giving any reasons therefor) to consider that point, the
    ‘criminal charge’ within the meaning of Article 6(1) of the            Court of First Instance has infringed the law.
    European Convention for the Protection of Human Rights
    and Fundamental Freedoms (‘ECHR’). As is apparent from              — Invalidity of the procedural measures taken prior to
    the judgment of 15 June 1994 (1), the Commission has not               adoption of the decision
    succeeded, in proceedings conducted up to the highest               — The manner in which the decision of 27 July 1994 was
    judicial level, in obtaining a declaration that the ‘criminal          adopted:
    charge’ imposed by it is well-founded. Thus, that ‘criminal
    charge’ has been definitively dealt with — irrespective of             — Respect for the rights of the defence: the undertakings
    the grounds on which it was held to be unfounded. In the                    were not given the opportunity prior to the adoption
    judgment of 15 June 1994, the Court of Justice did not                      of the decision of 27 July 1994, which was enacted
    refer the matter back to the Commission in order that the                   following the annulment of the decision of
    ‘formal defect’ might be remedied. On the contrary, the                     22 December 1988, to exercise their right of defence:
    Court of Justice itself disposed of the matter by annulling                 the Commission did not give the parties the oppor-
    the decision and ordering the Commission to pay the costs                   tunity of putting forward their observations, either in
    of both sets of proceedings, thereby not only declaring                     relation to the procedure leading to the adoption of
    that the master was to be regarded as definitively concluded                that decision as such, or as regards any objections
    but also expressly excluding the possibility of remedying                   which they might have wished to raise in opposition
    the defects established.                                                    to it. By acting in that way, the Commission infringed
                                                                                the undertakings’ right to a fair hearing. It is clear that
                                                                                the fundamental principle of respect for the rights of
— Non bis in idem: the judgment of the Court of First Instance                  the defence cannot be curtailed by the extremely
    is incorrect and conflicts with the essence of the principle                restrictive meaning applied to it by the Court of First
    involved, which seeks not only to protect a defendant                       Instance, according to which the duty to respect those
    from being pursued and penalised twice for; the same                        rights does not impose on the Commission ‘any
    contraventions — of which, as has been established in                       obligation other than’ to ensure that each undertaking
    proceedings conducted up to the highest judicial level, no                  may, during the proceeding, effectively put its case
    evidence has been adduced — but also to protect such a                      as to ‘the accuracy and relevance of the facts and
    defendant against the mere possibility of being pursued                     circumstances alleged, and on the documents relied
    and penalised twice, irrespective of the reasons for which                  on’ by the Commission in support of its allegation that
    the first proceedings brought against him did not result in                 there has been a breach of Community law. A great
    a ‘conviction’.                                                             many points were raised by the appellant and the other
 ---pagebreak--- 4.12.1999              EN                     Official Journal of the European Communities                                         C 352/11
        undertakings, on which they wished, and should have                   forms a necessary part of any procedure that may result in
        been allowed, to express their views prior to the                     an act imposing a penalty. The possibility of subsequent
        adoption of the decision of 27 July 1994. It is also                  compensation renders that right of the defence largely
        incorrect to say, as stated in paragraph 252 of the                   illusory.
        contested judgment, that the 1994 decision contains
        no point of any substance which does not appear in               — Limitation: the absence of any reference, in the list
        the 1988 decision.                                                    contained in Article 2(1) of Regulation No 2988/74, to a
                                                                              decision imposing a fine is not a master of chance or an
        Consequently, the correct procedure in a situation such               inadvertent omission; it fits precisely into the system of
        as that preceding the adoption of the 1994 decision,                  Regulation No 2988/74 and reflects, as such, the express
        as laid down in the case-law of the Court of Justice, is              intentions of the Community legislature. If the proceedings
        to start the procedure afresh ‘in accordance with the                 brought by the undertakings, including the appellant,
        rules on competence and procedure’, inter alia by                     against the decision of 21 December 1988 did not have
        ‘calling upon the parties concerned to submit their                   the effect of stopping time from running in respect of the
        observations’, and thereafter to ‘take all relevant factors           Commission’s right to pursue the matter, that means that,
        into consideration, including, in the present case, the               following the last of the measures referred to in Article 2(1)
        facts already examined in an earlier decision’.                       of Regulation No 2988/74, namely the communication
                                                                              of the statement of objections on 5 April 1988, the
   — Consultation of the Advisory Committee: the Court of                     interruption of the limitation period terminated on 5 April
        First Instance erred in finding that, prior to the                    1993. That period was not suspended; consequently, the
        adoption of the decision of 27 July 1994, there existed               Commission was no longer empowered on 27 July 1994
        no obligation to reconsult the Advisory Committee.                    to adopt a decision imposing (once again) a fine. In the
        The basis of the obligation to consuls the Advisory                   light of that interpretation of Articles 1 to 3 of Regulation
        Committee is to be found in Article 10 of Council                     No 2988/74, which is in conformity with the scheme of
        Regulation No 17, together with Articles 87 to 89 of                  the legislation, the Court of First Instance has given reasons
        the Treaty (in particular Article 89 thereof). That                   which are not only unjust but, in fact, incomprehensible.
        obligation must be construed in the light of those
        higher-ranking rules and not, as the Court of First              (1) Case C-137/92 P, (1994) ECR I-2555.
        Instance states, in the light of a lower-ranking act,            (2) Judgment of the European Court of Human Rights of 17 Decemb-
        namely Commission Regulation No 99/63.                               er 1996, No 43/1994/490/572, para. 74.
— Inadequate reasoning
— Protection against self-incrimination: the Court of First
   Instance erred in ruling that the ‘recognition’ of an absolute
   right of silence, as argued for by the appellant, would go
   beyond what is necessary to preserve the rights of the                Appeal brought on 28 June 1999 by (1) DSM N.V. and (2)
   defence and would constitute a hindrance to the Com-                  DSM Kunststoffen B.V. against the judgment delivered on
   mission in the accomplishment of its task. According to               20 April 1999 by the Third Chamber, Extended Compo-
   the rules laid down in Article 6 of the ECHR, as interpreted          sition, of the Court of First Instance of the European
   by the European Court of Human Rights in the Saunders                 Communities in Joined Cases T-305/94, T-306/94,
   judgment (2), it is not possible to infer from the (public)           T-307/94, T-313/94, T-314/94, T-315/94, T-316/94,
   interest in having investigations carried out any justifi-            T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94
   cation for a restriction of the right of silence. Equally             between (1) DSM N.V. and (2) DSM Kunststoffen B.V.,
   irrelevant, and contrary to the case-law of the Court of              Limburgse Vinyl Maatschappij NV, Elf Atochem SA,
   Justice (and of the European Court of Human Rights), is               BASF AG, Shell International Chemical Company Ltd,
   the further reasoning contained in paragraph 448 of the               Wacker-Chemie GmbH, Hoechst AG, Société Artésienne
   contested judgment, to the effect that undertakings have              de Vinyle, Montedison SpA, Imperial Chemical Industries
   every opportunity to put their point of view concerning               plc, Hüls AG and Enichem SpA, and the Commission of
   the documents which, contrary to that principle, they have                               the European Communities
   been called upon to produce and/or the replies which,
   likewise contrary to that principle, they have been required
   to give. In such circumstances, the harm against which                                         (Case C-244/99 P)
   that principle is designed to protect has already been
   suffered.                                                                                       (1999/C 352/20)
— Access to the file: Article 6 of the ECHR guarantees the               An appeal against the judgment delivered on 20 April 1999
   ‘suspect’ a right of ‘equal access’ to the file. That guarantee       by the Third Chamber, Extended Composition, of the Court of
   of the rights of the defence, ensuring access on an equal             First Instance of the European Communities in Joined Cases
   footing, can only have any meaning if the finding that the            T-305/94, T-306/94, T-307/94, T-313/94, T-314/94,
   Commission did not provide complete access to the file                T-315/94, T-316/94, T-318/94, T-325/94, T-328/94,
   results, on its own, in annulment. To impose in that                  T-329/94 and T-335/94 between (1) DSM N.V. and (2) DSM
   connection the additional requirement that the failure to             Kunststoffen B.V., Limburgse Vinyl Maatschappij NV, Elf
   provide access may also be shown to have affected the                 Atochem SA, BASF AG, Shell International Chemical Company
   conduct of the procedure and the content of the decision,             Ltd, Wacker-Chemie GmbH, Hoechst AG, Société Artésienne
   to the detriment of the appellant, amounts to robbing of              de Vinyle, Montedison SpA, Imperial Chemical Industries plc,
   its full effect the respect for the rights of the defence which       Hüls AG and Enichem SpA, and the Commission of the