CELEX: C1999/352/22
Language: en
Date: 1999-12-04 00:00:00
Title: Case C-247/99 P: Appeal brought on 2 July 1999 by Elf Atochem SA 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-325/4, T-328/4, 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, 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 352/13
— reduce the amount of the fine by a sum which corresponds                  Appeal brought on 2 July 1999 by Elf Atochem SA against
    to the damage sustained by Montedison by reason of the                  the judgment delivered on 20 April 1999 by the Third
    duration of the proceeding, the issue of a fresh decision in            Chamber (Extended Composition) of the Court of First
    lieu of the annulled decision, and the cost of the security             Instance of the European Communities in Joined Cases
    guarantee;                                                              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-325/4, T-328/4, T-329/94
Costs:                                                                      and T-335/94 between LVM NV, Elf Atochem SA, BASF
                                                                            AG, Shell International Chemical Company Ltd, DSM
— order the Commission to pay the applicant the whole of                    NV and DSM Kunststoffen BV, Wacker-Chemie GmbH,
    the costs and fees relating to the proceedings at first                 Hoechst AG, Société Artésienne de Vinyle, Montedison
    instance and on appeal.                                                 SpA, Imperial Chemical Industries plc, Hüls AG and
                                                                            Enichem SpA and the Commission of the European
                                                                                                      Communities
Pleas in law and main arguments
                                                                                                    (Case C-247/99 P)
1. The Court of First Instance failed to consider the first
    ground of challenge raised by the applicant (the fact that
    the Commission exercised and exhausted its powers in                                             (1999/C 352/22)
    relation to the facts at issue); definitive conferment upon
    the Court of First Instance and the Court of Justice of the
    powers relating to the fines; infringement of Article 172 of            An appeal against the judgment delivered on 20 April 1999
    the EC Treaty (now Article 229 EC) and Article 17 of                    by the Third Chamber (Extended Composition) of the Court of
    Council Regulation No 17/62 (1) in relation to                          First Instance of the European Communities in Joined Cases
    Article 87(2)(d) of the EC Treaty (now, after amendment,                T-305/94, T-306/94, T-307/94, T-313/94, T-314/94,
    Article 83 EC).                                                         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,
2. Failure to give reasons in relation to the second ground of              BASF AG, Shell International Chemical Company Ltd, DSM
    challenge (non-existence of the proceeding).                            NV and DSM Kunststoffen BV, Wacker-Chemie GmbH,
                                                                            Hoechst AG, Société Artésienne de Vinyle, Montedison SpA,
3. Fai1ure to consider the economic context. Breach of the                  Imperial Chemical Industries plc, Hüls AG and Enichem SpA
    principle of Community law according to which, whenever                 and the Commission of the European Communities was
    an assessment is made of competitive conduct, an evalu-                 brought before the Court of Justice of the European Communi-
    ation of the economic and legislative context must first be             ties on 2 July 1999 by Elf Atochem SA, represented by Xavier
    carried out. Breach of the principle of Community law                   de Roux, of the Paris Bar, with an address for service in
    according to which, where an undertaking is able to offer               Luxembourg at the Chambers of Jacques Loesch, 11 Rue
    a non-anticompetitive justification for its conduct, it                 Goethe.
    cannot be held to have infringed Article 85 and 86 of the
    EC Treaty (now Articles 81 and 82 EC).
4. The Court of First Instance appears to have misapplied the               The appellant claims that the Court should:
    rules laid down by Regulation No 2988/74 (2) as regards
    time-limits.
                                                                            — annul the judgment of the Court of First Instance of
                                                                                 20 April 1999 in Joined Cases T-305/94, T-306/94,
5. Infringement of the right to an individual defence rather
                                                                                 T-307/94, T-313/94, T-314/94, T-315/94, T-316/94,
    than a collective defence.                                                   T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94,
                                                                                 drawing the legal consequences from such annulment, and
6. Infringement of Article 6(1) of the European Convention                       in particular ruling definitively on the dispute itself;
    on Human Rights in that the Court of First Instance
    to consider documentary evidence for the defence and
    excluded, without valid reasons, additional documentary                 — order the Commission to pay the costs.
    evidence in favour of Montedison.
7. Clear lack of logic, and/or failure to consider defence
    arguments put forward to the effect that the amount of the
    fine was out of proportion to the seriousness and duration              Pleas in law and main arguments
    of the conduct.
8. Failure to consider evidence of the damage sustained by                  — Error of law in that the Court of First Instance refrained
    Montedison and breach of the principle of the Com-                           from finding that the Commission adopted a new decision
    mission’s responsibility for unlawful conduct.                               on 27 July 1994. The annulment of the 1988 decision by
                                                                                 the judgment of the Court of Justice of 19 April 1994
                                                                                 necessarily entailed the annulment of the whole of the
(1) OJ, English Special Edition (59-62), I, p. 87.                               prior administrative procedure. The Commission could
(2) OJ L 319 of 29.11.1974, p. 1.                                                therefore take a new decision, distinct from that of 1988,
                                                                                 only at the conclusion of a new proceeding. The 1994
                                                                                 decision did not have the same addressees, Norsk Hydro
                                                                                 and Solvay not being among them. However, the conduct
 ---pagebreak--- C 352/14              EN                       Official Journal of the European Communities                                        4.12.1999
   of those undertakings continues to be taken into account               Appeal brought on 3 July 1999 by Degussa-Hüls AG
   by the Commission in determining the significance of the               against the judgment delivered on 20 April 1999 by the
   alleged infringement. The 1988 and 1994 decisions thus                 Third Chamber, Extended Composition, of the Court of
   concern alleged agreements and/or concerted practices                  First Instance of the European Communities in Joined
   between a group whose members were different in 1994                   Cases T-305/94, T-306/94, T-307/94, T-313/94, T-314/94,
   from 1988. A third difference concerns developments by                 T-315/94, T-316/94, T-318/94, T-325/94, T-328/94,
   1994 decision of the limitation of the Commission’s action             T-329/94 and T-335/94 between Limburgse Vinyl Maat-
   in order to justify its legal ability to take a new decision.          schappij NV, Elf Atochem SA, BASF AG, Shell Inter-
                                                                          national Chemical Company Ltd, DSM NV and DSM
                                                                          Kunststoffen BV, Wacker-Chemie GmbH, Hoechst AG,
                                                                          Société Artésienne de Vinyle, Montedison SpA, Imperial
   The Court of First Instance wrongly endorses the Com-                  Chemical Industries plc, Hüls AG and Enichem SpA, and
   mission’s argument that, in its judgment of 15 June 1994,                     the Commission of the European Communities
   the Court of Justice limited the scope of the annulment of
   the 1988 decision to a simple lack of authentication,                                          (Case C-250/99 P)
   whereas the judgment annulled the decision for infringe-
   ment of both the rules on authentication and the col-                                           (1999/C 352/23)
   legiality principle.
                                                                          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
   It was essential in this case to adopt a new decision and
                                                                          T-305/94, T-306/94, T-307/94, T-313/94, T-314/94,
   open an administrative proceeding accordingly by reason
                                                                          T-315/94, T-316/94, T-318/94, T-325/94, T-328/94,
   of the principle that Commission decisions must be
                                                                          T-329/94 and T-335/94 between Limburgse Vinyl Maatschap-
   individual decisions.
                                                                          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
                                                                          Vinyle, Montedison SpA, Imperial Chemical Industries plc,
— Error of law in that the Court of First Instance did not hold           Hüls AG and Enichem SpA, and the Commission of the
   that the Commission’s adoption of a new decision opened                European Communities was brought before the Court of
   procedural rights for the benefit of the applicants. Contrary          Justice of the European Communities on 3 July 1999 by
   to the findings of the Court of First Instance, it was of little       Degussa-Hüls AG, represented by Frank Montag, Rechtsanwalt,
   importance whether or not the new decision contained                   of Messrs Freshfields Deringer, Cologne, with an address for
   new objections by comparison with the old one. The 1994                service in Luxembourg at the Chambers of Jacques Loesch, 11
   decision being a new decision, the Commission could not                Rue Goethe.
   purely and simply resume the objections from a previous
   annulled decision without effecting fresh notification to
   the parties concerned in accordance with Regulation                    The appellant claims that the Court should:
   17/62. Further, the right of the accused undertakings to
   submit their written comments and participate in hearings              1. set aside the judgment delivered by the Court of First
   was not acknowledged.                                                      Instance (Third Chamber, Extended Composition) on
                                                                              20 April 1999 in Case T-329/94 in so far as it dismisses
                                                                              the appellant’s claim (paragraph 4 of the operative part)
                                                                              and orders the appellant to bear its own costs and to pay
                                                                              the costs of the Commission (paragraph 5 of the operative
   It was also wrong that no reference was made to the                        part);
   Advisory Committee on Restrictive Practices and Domi-
   nant Positions, and wrong for the Court of First Instance,             2. annul Articles 1, 2 and 3 of Commission Decision
   by establishing a link to the hearing of the parties which                 94/599/EC of 27 July 1994 (1) relating to a proceeding
   had a completely different subject-matter, purportedly to                  pursuant to Article 85 of the EC Treaty (IV/31.865 —
   deny, without foundation, that there was an obligation to                  PVC), in so far as they concern the appellant;
   that effect.
                                                                          3. order the Commission to pay the costs of the proceedings
                                                                              at first instance and of the appeal.
   Compliance with the procedure laid down by Regulations
   17/62 and 99/63 would have allowed account to be taken                 Pleas in law and main arguments
   of the latest state of the Community case-law on access to
   the file, as required by Commission Notice 97/C 23/03 of               — Error of law in relation to the general principle requiring
   23 January 1997 (OJ 1997 C 23,p.3).                                        proceedings to be of a reasonable duration: the Court of
                                                                              First Instance disregarded, first of all, the fact that the total
                                                                              duration of the proceedings, which lasted 16 years, cannot
                                                                              be regarded as reasonable. Furthermore, it was wrong to
                                                                              take the view that the duration of the administrative
                                                                              proceeding was reasonable. Finally, the excessive length of
                                                                              the judicial proceedings constitutes in itself an infringe-
                                                                              ment of the parties’ right to have the matter decided within
                                                                              a reasonable time.