CELEX: C1999/352/26
Language: en
Date: 1999-12-04 00:00:00
Title: Case C-254/99 P: Appeal brought on 8 July 1999 by Imperial Chemical Industries plc against the judgment delivered on 20 April 1999 by the Court of First Instance of the European Communities (Third Chamber, Extended Composition) 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, respectively, Limburgse Vinyl Maatschappij NV, Elf Atochem SA, BASF AC, Shell International Chemical Co. Ltd, DSM NV and DSM Kunststoffen BV, Wacker-Chemie GmbH, Hoechst AC, Société Artésienne de Vinyle, Montedison SpA, Imperial Chemical Industries plc, Hüls AC and Enichem SpA and the Commission of the European Communities

4.12.1999               EN                     Official Journal of the European Communities                                         C 352/17
    (b) in the further alternative, in the event that the dispute is               also in relation to its adoption, since the purpose of such
         not yet capable of being determined, refer the case                       consultation is to enable discussion of the proposed
         back to the Court of First Instance in order for the                      decision — which the Commission must annex to the
         proceedings to be resumed and decided by that Court;                      notice convening the joint meeting — to take place.
2.  order   the Commission to pay the costs of the proceedings,                    The contested judgment overlooks the fact that the
    alternatively, in the event that the case is referred back,                    obligation to put an end to a contravention, or
    reserve the decision on costs to the Court of First Instance.                  alternatively to refrain from taking action, can be
                                                                                   justified only on the basis of a close temporal proximity
Pleas in law and main arguments                                                    to the oral hearing, and that it is essential, for that
— Procedural errors:                                                               reason, that a decision in the matter be adopted within
    — Defective composition of the Chamber according to law:                       a short period of time.
         although the Third Chamber, Extended Composition,                         It is correspondingly erroneous, as a matter of law, to
         was properly constituted for the purposes of the oral                     suppose that the determination of the fine remains
         procedure, it was not properly constituted for the pur-                   unaffected by the passage of time. The Commission is
         poses of delivery of the judgment. Where a Judge who is                   required to decide the matter in the proper exercise of
         called upon to take part in the judgment of a case retires                its discretion, but in doing so it must have regard to
         on account of the expiry of his term of office, this does                 the factual situation prevailing at the time when the
         not give rise to an even number of Judges ‘by reason of a                 second decision is adopted. Moreover, it is also obliged
         Judge being absent or prevented from attending’, and,
                                                                                   to have regard, when calculating the fine, to the
         by virtue of its very wording, Article 32(1) of the Rules
         of Procedure is not applicable. In the present case, the                  financial situation and, in particular, to take into
         Judge in question had already retired seven months                        account, in accordance with Article 15(2) of Regulation
         before the judgment was delivered; it is clear that his                   No 17/62, the ‘turnover in the preceding business
         retirement definitively occurred even before the oral                     year’.
         procedure took place, and the Court of First Instance            — Infringement of Article 81(1) EC and of Article 15(2) of
         consequently had a sufficient opportunity to take steps              Regulation No 17/62.
         to ensure in good time that it was composed of five
         Judges, in accordance with the law.
                                                                          (1) OJ L 239 of 14.9.1994, p. 14.
         The delivery of the contested judgment by a Chamber              (2) OJ, English Special Edition 1959-1962, p. 87.
         which was not properly composed also constitutes an              (3) OJ, English Special Edition 1963-1964, p. 47.
         infringement of the basic right to trial by a forum
         constituted in accordance with the law.
    — Failure to examine disputed facts: if the Court of First
         Instance considered that the turnover figures pleaded by
         the applicant Hoechst, and confirmed by a reputable
         firm of auditors, were incorrect or doubtful, it should          Appeal brought on 8 July 1999 by Imperial Chemical
         have heard evidence in that regard, since it is not in any       Industries plc against the judgment delivered on 20 April
         way sufficient, for the purposes of finding that there has       1999 by the Court of First Instance of the European
         been an anti-trust violation, to call in question infor-         Communities (Third Chamber, Extended Composition) in
         mation provided by individual parties to the proceed-            joined cases T-305/94 (1), T-306/94 (2), T-307/94 (3),
         ings or to characterise that information as unbelievable.        T-313/94 (4), T-314/94 (5), T-315/94 (6), T-316/94 (7),
         On the contrary, the parties concerned must be given             T-318/94 (8), T-325/94 (9), T-328/94 (10), T-329/94 (11) and
         concrete proof of the facts on which there is presumed           T-335/94 (12) between, respectively, Limburgse Vinyl
         to have been a violation of cartel law. If, following            Maatschappij NV, Elf Atochem SA, BASF AC, Shell Inter-
         exhaustion of the possibilities available for investigating      national Chemical Co. Ltd, DSM NV and DSM Kunststof-
         the matter, doubts continue to exist, the case should be         fen BV, Wacker-Chemie GmbH, Hoechst AC, Société
         decided in favour of the party alleged to be at fault.           Artésienne de Vinyle, Montedison SpA, Imperial Chemi-
— Infringement of Community law;                                          cal Industries plc, Hüls AC and Enichem SpA and the
                                                                                   Commission of the European Communities
    — Infringement of Article 231(1) in conjunction with
         Article 230(4) EC, Articles 10(3) and 19(1) of regulation                                 (Case C-254/99 P)
         No 17/62 (2) and Articles 1, 2, 4 and 7 of Regulation
         No 99/63 (3): contrary to the view taken by the Court of                                    (1999/C 352/26)
         First Instance, the adoption of the contested Com-
         mission decision was not preceded either by a hearing            An appeal against the judgment delivered on 20 April 1999
         of the parties to the proceeding or by any consultation          by the Court of First Instance of the European Communities
         of the Advisory Committee on Restrictive Practices and           (Third Chamber, Extended Composition) in joined cases
         Dominant Positions. Instead, the Court of First Instance         T-305/94 etc. between Limburgse Vinyl Maatschappij NV and
         treated as sufficient hearings which had taken place             others and the Commission of the European Communities,
         approximately six years prior to the adoption of the             was brought before the Court of Justice of the European
         contested decision imposing the fine and which related           Communities on 8 July 1999 by Imperial Chemical Industries
         to a decision different from the contested decision.             plc (‘ICI’), of Imperial Chemical House, 9 Millbank, London
         The Court of First Instance has disregarded the require-         SW1, represented by David Vaughan QC, David Anderson QC
         ment that the Advisory Committee on Restrictive                  and Kelyn Bacon, Barrister, instructed by Richard Coles and
         Practices and Dominant Positions must be consulted,              Shirley Turner, Solicitors, with an address for service in
         in accordance with Article 10 of Regulation No 17/62,            Luxembourg at the Chambers of Lambert Dupong, 4-6 Rue de
         not only before the proposed decision is adopted but             la Boucherie.
 ---pagebreak--- C 352/18              EN                     Official Journal of the European Communities                                         4.12.1999
The appellant asks the Court:                                           Infringement              of    Article 190            EC     (now
                                                                        Article 253)
(1) that the judgment of the Court of First Instance of 20 April
    in joined cases T-305/94 etc. between Limburgse Vinyl               The decision of the Commission to take a new Decision
    Maatschappij NV and others and the Commission be                    without serving a new statement of objections, and with
    set aside insofar as it relates to case T-328/94, ICI v             neither a fresh hearing of the undertakings nor fresh consul-
    Commission;                                                         tation of the Advisory Committee, was not only unusual, but
                                                                        wholly unprecedented. In those circumstances the undertak-
(2) that Commission Decision 94/599/EC (13), dated 27 July              ings were entitled to, and did, expect some explanation for the
    1994, be annulled insofar as it relates to ICI; or, failing         manner in which the Commission chose to proceed. Its failure
    that, that this Court do remit this matter to the Court of          to do so constituted a manifest infringement of Article 253.
    First Instance;
(3) that the fine imposed on ICI of EUR 1 550 000, as reduced           Infringement of Article 20(1) of Regulation
    by the Court of First Instance, be set aside, or further            17
    reduced;
                                                                        ICI contends that, contrary to the judgment of the Court of
(4) that the Commission pay ICI’s costs of case T-328/94 and            First Instance, the Commission was not entitled to use
    of this appeal.                                                     documents obtained in other proceedings in the PVC investi-
                                                                        gations, whether or not new copies of these documents were,
                                                                        as a matter of formality, requested for the purposes of the
Pleas in law and main arguments                                         second investigation, and that the Court of First Instance erred
                                                                        in law by considering that the Commission did not breach
                                                                        Article 20(1).
Power to adopt the PVC II Decision
                                                                        Fines
ICI submits that the Court of First Instance erred in law in
holding that the Commission validly adopted the PVC II
                                                                        ICI submits that the interpretation by the Court of First
Decision notwithstanding (i) the principle of res judicata; (ii) the
                                                                        Instance of Regulation (EEC) No 2988/74 (17) (i) is contrary to
principle of non bis in idem; (iii) the duty to act within a
                                                                        the wording and scheme of the Regulation; (ii) is contrary to
reasonable time.
                                                                        the Court of First Instance’s interpretation of the purpose of
                                                                        Article 3 of the Regulation; (iii) is contrary to the principle in
                                                                        Community law that a party may not benefit from his own
Procedure          in   adoption         of     the     PVC       II    wrongdoing; and (iv) produces nonsensical results.
Decision
The rights of defence in all proceedings in which sanctions             (1) OJ C 331 of 26.11.1994, p. 6.
                                                                        (2) OJ C 380 of 31.12.1994, p. 12.
may be imposed constitute a fundamental principle of Com-               (3) OJ C 351 of 10.12.1994, p. 15.
munity law. Applying that principle, Article 19(1) of Council           (4) OJ C 380 of 31.12.1994,p. 15.
Regulation No 17 (14) and Article 4 of Commission Regulation            (5) OJ C 331 of 26.11.1994, p. 7.
No 99/63/EEC (15) require that the undertaking concerned                (6) OJ C 351 of 10.12.1994, p. 17.
must have been afforded an opportunity to know the alle-                (7) OJ C 380 of 31.12.1994, p. 16.
gations made against it and to make known its views on those            (8) OJ C 351 of 10.12.1994, p. 18.
allegations. In Commission competition proceedings, further             (9) OJ C 370 of 24.12.1994, p. 12.
procedural guarantees are provided by the involvement of a              (10) OJ C 380 of 31.12.1994, p. 18.
Hearing Officer, and the requirement for the Commission to              (11) OJ C 351 of 10.12.1994, p. 20.
consult the Advisory Committee.                                         (12) OJ C 370 of 24.12.1994, p. 13.
                                                                        (13) relating to a proceeding pursuant to Article 85 of the EC Treaty
                                                                             (IV/31.865 — PCV) (OJ L 239, 14.9.1994, p. 14).
                                                                        (14) of 6 February 1962 (First Regulation implementing Articles 85
The position of the Court of First Instance in the PVC II                    and 86 of the Treaty, OJ, English Special Edition 1959-1960, p.
judgment is, in essence, that these procedural guarantees were               87).
adequately provided by the procedural steps taken prior to the          (15) of 25 July 1963 on the hearings provided for in Article 19(1)
PVC I Decision in 1988 (16), that is to say some six years before            and (2) of Council Regulation No 17 (OJ, English Special Edition
the PVC II Decision was taken in 1994. ICI submits that the                  1963-1964, p. 47).
Court of First Instance erred in law on this point. First,              (16) Commission Decision 89/190/EEC of 21 December 1988 relat-
the annulment of the PVC I Decision rendered invalid the                     ing to a proceeding pursuant to Article 85 of the EEC Treaty
Commission’s procedural steps taken prior to the PVC I                       (IV/31.865, PVC) (OJ 1989 L 74, p.1).
Decision. Secondly, even if ICI is wrong on that point, ICI             (17) of the Council of 26 November 1974 concerning limitation
submits that the adoption of a new decision by the Com-                      periods in proceedings and the enforcement of sanctions under
                                                                             the rules of the European Economic Community relating to
mission in any event required a rehearing of the undertakings,               transport and competition (OJ L 319, 29.11.1974, p. 1).
a new report by the Hearing Officer and fresh consultation of
the Advisory Committee. A delay of six years between the
procedural guarantees and the relevant Decision is not only
exorbitant, but a dental of all protection of legal rights.