CELEX: C1999/352/24
Language: en
Date: 1999-12-04 00:00:00
Title: Case C-251/99 P: Appeal brought on 6 July 1999 by ENICHEM SpA 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 LVM NV, Elf Atochem SA, BASF AG, Shell International Chemical Company Ltd, DSM NV and DSM Kunststoffen BV, Wacker-Chemie GmbH, Hoechst AG, S.A.V., Montedison SpA, I.C.I. plc, Hüls AG and Enichem SpA and the Commission of the European Communities

4.12.1999             EN                    Official Journal of the European Communities                                      C 352/15
   The Court of First Instance was wrong to assume that the            — Error of law in respect of the Court’s assessment of the
   administrative phase of the proceedings lasted only ten                 breach of the rights of the defence resulting from the
   months, covering the period from the service of the                     granting of inadequate access to the documentation: con-
   statement of objections to the adoption of the decision,                trary to the verification carried out by the Court of First
   since it wrongly left out of account the duration of the first          Instance, the question whether the documents which were
   judicial proceedings. The Commission accepted that the                  not disclosed by the Commission during the administrative
   judicial proceedings brought against the 1988 decision                  procedure were in fact of an exonerating nature, as the
   should be limited to the procedural defects pleaded,                    Court of First Instance held them to be after the event,
   without indicating its intention to base a new decision on              cannot be decisive. In carrying out an ex post facto
   the old proceeding. It thereby consciously accepted that                assessment of those documents in the course of the judicial
   the appellant might bring a second action before the Court              proceedings, the Court of First Instance substituted its own
   of First Instance and, if necessary, before the Court of                view concerning their exonerating nature in place of that
   Justice, with a view to obtaining a decision on the substance           of the Commission; this cannot take the place of the
   of the case which would ultimately not be forthcoming                   opportunity, denied to the undertakings, to defend them-
   until over 20 years after the conduct alleged against the               selves with the help of those documents during the course
   appellant had taken place.                                              of the proceedings before the Commission.
                                                                       — Infringement of Article 253 EC (formerly Article 190 of
   The Court of First Instance wrongly took the view that the              the EC Treaty).
   breach of the general principle of law requiring proceedings
   to be of a reasonable duration did not in itself affect the         (1) OJ L 239 of 14.9.1994, p. 14.
   validity of the decision. In the absence of any recognition         (2) OJ C 33 of 6.2.1999, p. 1.
   of the illegality of a decision adopted after a reasonable          (3) OJ C 397 of 19.12.1999, p. 15.
   period of time, the basic law relating to undertakings
   would exist only on paper. Having regard to the primary
   importance attached to fundamental rights in Community
   law, such a situation is unacceptable.
                                                                       Appeal brought on 6 July 1999 by ENICHEM SpA against
   The view of the law taken by the Court of First Instance —
   according to which the legal consequences of a breach of            the judgment delivered on 20 April 1999 by the Third
   the right to expect proceedings to be of a reasonable               Chamber, Extended Composition, of the Court of First
                                                                       Instance of the European Communities in Joined Cases
   duration are limited, where it cannot be shown that there
                                                                       T-305/94, T-306/94, T-307/94, T-313/94, T-314/94,
   has been any infringement of the rights of the defence, to
                                                                       T-315/94, T-316/94, T-318/94, T-325/94, T-328/94,
   specific claims for damages — cannot be justified, having
   regard to the judgment of the Court of Justice of                   T-329/94 and T-335/94 between LVM NV, Elf Atochem
   17 December 1998 in Case C-185/95 Baustahlgewebe (2).               SA, BASF AG, Shell International Chemical Company Ltd,
                                                                       DSM NV and DSM Kunststoffen BV, Wacker-Chemie
   Even though the Court of First Instance may not have
                                                                       GmbH, Hoechst AG, S.A.V., Montedison SpA, I.C.I. plc,
   been obliged to accept the appellant’s argument that the
                                                                       Hüls AG and Enichem SpA and the Commission of the
   Commission’s decision should be annulled, it should at
   least have reduced the fine imposed on the appellant.                                   European Communities
                                                                                              (Case C-251/99 P)
— Error of law with regard to the adoption of the 1994
   decision: the Court of First Instance wrongly considered                                    (1999/C 352/24)
   that the validity of the preparatory steps taken prior to the
   adoption of the 1988 decision remained unaffected by the            An appeal against the judgment delivered on 20 April 1999
   annulment of that decision, and that the Commission was             by the Third Chamber, Extended Composition, of the Court of
   therefore entitled to base the 1994 decision on those steps         First Instance of the European Communities in Joined Cases
   without carrying out a fresh administrative proceeding.             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 LVM NV, Elf Atochem SA,
   It cannot be concluded from the case-law of the Court of            BASF AG, Shell International Chemical Company Ltd, DSM
   Justice (Case C-415/96 (3) judgment of 12.11.1998)                  NV and DSM Kunststoffen BV, Wacker-Chemie GmbH,
   referred to by the Court of First Instance that procedural          Hoechst AG, S.A.V., Montedison SpA, I.C.I. plc, Hüls AG
   acts the regularity of which cannot be inferred from the            and Enichem SpA and the Commission of the European
   grounds contained in the judgment, or the regularity of             Communities was brought before the Court of Justice of the
   which, in any event, was called in question but not                 European Communities on 6 July 1999 by Enichem SpA, a
   examined, remain valid.                                             company whose registered office is in Milan (Italy), represented
                                                                       by Mario Siragusa, of the Rome Bar, and Francesca Maria
                                                                       Moretti, of the Venice Bar, with an address for service in
   Furthermore, the Court of First Instance disregards the             Luxembourg at Studio Elvinger, Hoss & Prussen, 2 Place
   scope of the Commission’s obligation to base its decision           Winston Churchill L-1450 Luxembourg.
   on a proper procedure conducted in accordance with the
   rules laid down in respect of formal and procedural                 The appellant claims that the Court should:
   requirements. In the present case, compliance with those
   rules would have meant, in particular, that the appellant           — set aside the judgment of the Court of First Instance in so
   should have been heard and that the hearing officer and                 far as it is contested by the applicant, and annul the
   the Advisory Committee should have been involved.                       Commission’s decision accordingly;
 ---pagebreak--- C 352/16               EN                     Official Journal of the European Communities                                    4.12.1999
— in the alternative, set aside the judgment of the Court of             6. Misinterpretation and misapplication of Community law,
    First Instance in so far as it is contested by the applicant,            and insufficient consideration of the evidence concerning
    and cancer or reduce accordingly the fine imposed on                     the relationship between the fine imposed on Enichem and
    Enichem by the decision;                                                 its market share.
— order the Commission to pay the costs of the present                   7. Misinterpretation and misapplication of Community law
    proceedings and of the proceedings at first instance.                    in relation to the principle of proportionality between
                                                                             infringement and fine.
Pleas in law and main arguments
A. Procedural grounds
                                                                         Appeal brought on 5 July 1999 by Wacker-Chemie GmbH
1. Misinterpretation and misapplication of Article 44(1)(c) of           and Hoechst AG against the judgment delivered on 20
    the Rules of Procedure of the Court of First Instance and            April 1999 by the Third Chamber, Extended Composition,
    Community case-law in relation to admissibility.                     of the Court of First Instance of the European Communi-
                                                                         ties 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,
2. Misinterpretation and misapplication of Community law                 T-325/94, T-328/94, T-329/94 and T-335/94 between Lim-
    in relation to the force of res judicata.                            burgse Vinyl Maatschappij NV, Elf Atochem SA, BASF
                                                                         AG, Shell International Chemical Company Ltd, DSM
3. Misinterpretation and misapplication of Community law                 NV and DSM Kunststoffen BV, Wacker-Chemie GmbH,
    in relation to the invalidity of the procedural steps leading        Hoechst AG, Société Artésienne de Vinyle, Montedison
    to the adoption of the decision.                                     SpA, Imperial Chemical Industries plc, Hüls AG and
                                                                         Enichem SpA, and the Commission of the European
4. Misinterpretation and misapplication of Community law                                         Communities
    in relation to the rights of defence in the event of the
    re-adoption of a annulled infringement decision.                                           (Case C-252/99 P)
5. Infringement of Article 190 of the EC Treaty: deficient                                      (1999/C 352/25)
    statement of reasons as regards the sufficiency of the
    reasons relied upon by the Commission in support of its
    re-adoption of the PVC decision.                                     An appeal 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,
B. Substantive grounds                                                   T-329/94 and T-335/94 between Limburgse Vinyl Maatschap-
                                                                         pij NV, Elf Atochem SA, BASF AG, Shell International
1. Misinterpretation and misapplication of Community law                 Chemical Company Ltd, DSM NV and DSM Kunststoffen BV,
    in relation to the consequences flowing from the Court of            Wacker-Chemie GmbH, Hoechst AG, Société Artésienne de
    First Instance’s finding of inconsistency between the two            Vinyle, Montedison SpA, Imperial Chemical Industries plc,
    documents setting out the complaint against the Com-                 Hüls AG and Enichem SpA, and the Commission of the
    mission (‘planning documents’’).                                     European Communities was brought before the Court of
                                                                         Justice of the European Communities on 5 July 1999 by
2. Misapplication of Community law, including recent case-               Wacker-Chernie GmbH and Hoechst AG, represented by Hans
    law, in relation to individual liability for a collective            Hellmann, Rechtsanwalt, Amn Morsdorfer Hof 16, D-50933
    infringement.                                                        Cologne.
3. Infringement of Community law in relation to the parties’             The appellants claim that the Court should:
    rights of defence, in particular as regards access to the case
    file.                                                                1. set aside paragraphs 4 and 5 of the operative part of the
                                                                             judgment delivered by the Court of First Instance on
                                                                             20 April 1999 in Case T-315/94 Wacker-Chemie GmbH
4. Misinterpretation and misapplication to the present case                  v Commission and Case T-316/94 Hoechst AG v Com-
    of the principles relating to the fixing of the fines / Incor-           mission, and
    rect assessment of the relationship between turnover and
    the amount of the fine.                                                  (a) annul, in so far as it is addressed to the appellants,
                                                                                 Commission Decision 94/599/EC of 27 July 1994 (1)
5. Misinterpretation and misapplication of Community law,                        in cartel proceeding IV/31.865 — PVC, constituting
    including recent case-law, in relation to the obligations of                 the subject-matter of the action, in accordance with
    the Commission concerning the statement of the criteria                      the application made therein, alternatively, reduce the
    for calculating the fines.                                                   fine imposed on them; or