CELEX: C1999/352/23
Language: en
Date: 1999-12-04 00:00:00
Title: Case C-250/99 P: Appeal brought on 3 July 1999 by Degussa-Hüls AG 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

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.
 ---pagebreak--- 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;