CELEX: C1999/352/21
Language: en
Date: 1999-12-04 00:00:00
Title: Case C-245/99 P: Appeal brought on 1 July 1999 by Montedison 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 Case T-325/94 (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

C 352/12                EN                    Official Journal of the European Communities                                     4.12.1999
European Communities was brought before the Court of                     Appeal brought on 1 July 1999 by Montedison SpA
Justice of the European Communities on 28 June 1999 by (1)               against the judgment delivered on 20 April 1999 by the
DSM N.V. and (2) DSM Kunststoffen B.V., represented by                   Third Chamber, Extended Composition, of the Court of
I.G.F. Cath, Advocaat with a right of audience before the                First Instance of the European Communities in Case
Hoge Raad der Nederlanden, with an address for service in                T-325/94 (Joined Cases T-305/94, T-306/94, T-307/94,
Luxembourg at the Chambers of L. Dupong, 4-6 Rue de la                   T-313/94, T-314/94, T-315/94, T-316/94, T-318/94,
Boucherie.                                                               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
The appellants claim that the Court should:                              BV, Wacker-Chemie GmbH, Hoechst AG, S.A.V., Montedi-
                                                                         son SpA, I.C.I. plc, Hüls AG and Enichem SpA and the
                                                                                  Commission of the European Communities
1. set aside, either wholly or in part, the judgment delivered
     by the Court of First Instance of the European Communities                                 (Case C-245/99 P)
     on 20 April 1999 against which the present appeal has
     been brought, and terminate the proceedings,                                                (1999/C 352/21)
                                                                         An appeal against the Judgment delivered on 20 April 1999
2. alternatively: set aside the contested judgment, either wholly        by the Third Chamber, Extended Composition, of the Court of
     or in part, and refer the case back to the Court of First           First Instance of the European Communities in Case T-325/94
     Instance in order for the proceedings to be resumed;                (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
3. annul, alternatively declare void, either wholly or in part,          Atochem SA, BASF AG, Shell International Chemical Company
     the contested decision of the Commission of 27 July 1994;           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
4. annul, alternatively reduce, the fine imposed on the                  Communities was brought before the Court of Justice of the
     appellant by the Commission’s decision of 27 July 1994;             European Communities on 1 July 1999 by Montedison SpA, a
                                                                         company whose registered office is in Milan (Italy), represented
                                                                         by Giuseppe Celona, of the Milan Bar, and Piero A.M. Ferrari,
5. adopt such further measures as the Court may think fit;               of the Rome Bar, with an address for service in Luxembourg at
                                                                         the Chambers of George Margue, 20 Rue Philippe II, L-2340
                                                                         Luxembourg.
6. order the Commission, as the party at fault, to pay the
     costs of both sets of proceedings.                                  The appellant claims that the Court should:
                                                                         Organisation:
                                                                         — assign the case to the Court of Justice sitting in plenary
Pleas in law and main arguments                                              session;
— Inviolability of the home: in accordance with the Niemietz             Jurisdiction:
     judgment of the European Court of Human Rights (1), the             — declare all the actions admissible;
     exercise by the Commission of its powers in the context
     of investigations within the meaning of Article 14 of               Legality:
     Regulation No 17 is subject to the guarantees provided in
     that connection by Article 8 of the European Convention             — annul the contested decision on the grounds of:
     on Human Rights and the interpretation thereof by the
     European Court of Human Rights, which differs from that                 — complete lack of the power exercised;
     of the Court of Justice (2).                                            — and/or absence of the procedure laid down for the
                                                                                  exercise of such power;
— The first to sixth pleas and the eighth to eleventh pleas are              — and/or lapse of the right;
     the same as those advanced in Case C-238/99 P.
                                                                             — and/or any of the other grounds set out in the
                                                                                  application;
                                                                         Substance:
(1) Judgment of the European Court of Human Rights of 16 December
    1992 in Niemietz v Germany, Series A, No 251-B.                      — return the case file to the Court of First Instance so that it
(2) Judgment of 21.9.1989 in Joined Cases 46/87 and 227/88, (1989)           may consider the pleas raised by the applicant at first
    ECR 2859.                                                                instance but not considered by the Court, evaluate the
                                                                             documentary evidence not considered by the Court, allow
                                                                             the witness evidence submitted but rejected, cancel the fine
                                                                             imposed or reduce it to such amount as is proportional to
                                                                             the duration and seriousness of the matters for which
                                                                             Montedison was held liable;
 ---pagebreak--- 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