CELEX: C1999/352/20
Language: en
Date: 1999-12-04 00:00:00
Title: Case C-244/99 P: Appeal brought on 28 June 1999 by (1) DSM N.V. and (2) DSM Kunststoffen B.V. 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 (1) DSM N.V. and (2) DSM Kunststoffen B.V., Limburgse Vinyl Maatschappij NV, Elf Atochem SA, BASF AG, Shell International Chemical Company Ltd, 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 352/11
        undertakings, on which they wished, and should have                   forms a necessary part of any procedure that may result in
        been allowed, to express their views prior to the                     an act imposing a penalty. The possibility of subsequent
        adoption of the decision of 27 July 1994. It is also                  compensation renders that right of the defence largely
        incorrect to say, as stated in paragraph 252 of the                   illusory.
        contested judgment, that the 1994 decision contains
        no point of any substance which does not appear in               — Limitation: the absence of any reference, in the list
        the 1988 decision.                                                    contained in Article 2(1) of Regulation No 2988/74, to a
                                                                              decision imposing a fine is not a master of chance or an
        Consequently, the correct procedure in a situation such               inadvertent omission; it fits precisely into the system of
        as that preceding the adoption of the 1994 decision,                  Regulation No 2988/74 and reflects, as such, the express
        as laid down in the case-law of the Court of Justice, is              intentions of the Community legislature. If the proceedings
        to start the procedure afresh ‘in accordance with the                 brought by the undertakings, including the appellant,
        rules on competence and procedure’, inter alia by                     against the decision of 21 December 1988 did not have
        ‘calling upon the parties concerned to submit their                   the effect of stopping time from running in respect of the
        observations’, and thereafter to ‘take all relevant factors           Commission’s right to pursue the matter, that means that,
        into consideration, including, in the present case, the               following the last of the measures referred to in Article 2(1)
        facts already examined in an earlier decision’.                       of Regulation No 2988/74, namely the communication
                                                                              of the statement of objections on 5 April 1988, the
   — Consultation of the Advisory Committee: the Court of                     interruption of the limitation period terminated on 5 April
        First Instance erred in finding that, prior to the                    1993. That period was not suspended; consequently, the
        adoption of the decision of 27 July 1994, there existed               Commission was no longer empowered on 27 July 1994
        no obligation to reconsult the Advisory Committee.                    to adopt a decision imposing (once again) a fine. In the
        The basis of the obligation to consuls the Advisory                   light of that interpretation of Articles 1 to 3 of Regulation
        Committee is to be found in Article 10 of Council                     No 2988/74, which is in conformity with the scheme of
        Regulation No 17, together with Articles 87 to 89 of                  the legislation, the Court of First Instance has given reasons
        the Treaty (in particular Article 89 thereof). That                   which are not only unjust but, in fact, incomprehensible.
        obligation must be construed in the light of those
        higher-ranking rules and not, as the Court of First              (1) Case C-137/92 P, (1994) ECR I-2555.
        Instance states, in the light of a lower-ranking act,            (2) Judgment of the European Court of Human Rights of 17 Decemb-
        namely Commission Regulation No 99/63.                               er 1996, No 43/1994/490/572, para. 74.
— Inadequate reasoning
— Protection against self-incrimination: the Court of First
   Instance erred in ruling that the ‘recognition’ of an absolute
   right of silence, as argued for by the appellant, would go
   beyond what is necessary to preserve the rights of the                Appeal brought on 28 June 1999 by (1) DSM N.V. and (2)
   defence and would constitute a hindrance to the Com-                  DSM Kunststoffen B.V. against the judgment delivered on
   mission in the accomplishment of its task. According to               20 April 1999 by the Third Chamber, Extended Compo-
   the rules laid down in Article 6 of the ECHR, as interpreted          sition, of the Court of First Instance of the European
   by the European Court of Human Rights in the Saunders                 Communities in Joined Cases T-305/94, T-306/94,
   judgment (2), it is not possible to infer from the (public)           T-307/94, T-313/94, T-314/94, T-315/94, T-316/94,
   interest in having investigations carried out any justifi-            T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94
   cation for a restriction of the right of silence. Equally             between (1) DSM N.V. and (2) DSM Kunststoffen B.V.,
   irrelevant, and contrary to the case-law of the Court of              Limburgse Vinyl Maatschappij NV, Elf Atochem SA,
   Justice (and of the European Court of Human Rights), is               BASF AG, Shell International Chemical Company Ltd,
   the further reasoning contained in paragraph 448 of the               Wacker-Chemie GmbH, Hoechst AG, Société Artésienne
   contested judgment, to the effect that undertakings have              de Vinyle, Montedison SpA, Imperial Chemical Industries
   every opportunity to put their point of view concerning               plc, Hüls AG and Enichem SpA, and the Commission of
   the documents which, contrary to that principle, they have                               the European Communities
   been called upon to produce and/or the replies which,
   likewise contrary to that principle, they have been required
   to give. In such circumstances, the harm against which                                         (Case C-244/99 P)
   that principle is designed to protect has already been
   suffered.                                                                                       (1999/C 352/20)
— Access to the file: Article 6 of the ECHR guarantees the               An appeal against the judgment delivered on 20 April 1999
   ‘suspect’ a right of ‘equal access’ to the file. That guarantee       by the Third Chamber, Extended Composition, of the Court of
   of the rights of the defence, ensuring access on an equal             First Instance of the European Communities in Joined Cases
   footing, can only have any meaning if the finding that the            T-305/94, T-306/94, T-307/94, T-313/94, T-314/94,
   Commission did not provide complete access to the file                T-315/94, T-316/94, T-318/94, T-325/94, T-328/94,
   results, on its own, in annulment. To impose in that                  T-329/94 and T-335/94 between (1) DSM N.V. and (2) DSM
   connection the additional requirement that the failure to             Kunststoffen B.V., Limburgse Vinyl Maatschappij NV, Elf
   provide access may also be shown to have affected the                 Atochem SA, BASF AG, Shell International Chemical Company
   conduct of the procedure and the content of the decision,             Ltd, Wacker-Chemie GmbH, Hoechst AG, Société Artésienne
   to the detriment of the appellant, amounts to robbing of              de Vinyle, Montedison SpA, Imperial Chemical Industries plc,
   its full effect the respect for the rights of the defence which       Hüls AG and Enichem SpA, and the Commission of the
 ---pagebreak--- 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;