CELEX: C1999/352/25
Language: en
Date: 1999-12-04 00:00:00
Title: Case C-252/99 P: Appeal brought on 5 July 1999 by Wacker-Chemie GmbH and Hoechst 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 352/16               EN                     Official Journal of the European Communities                                    4.12.1999
— in the alternative, set aside the judgment of the Court of             6. Misinterpretation and misapplication of Community law,
    First Instance in so far as it is contested by the applicant,            and insufficient consideration of the evidence concerning
    and cancer or reduce accordingly the fine imposed on                     the relationship between the fine imposed on Enichem and
    Enichem by the decision;                                                 its market share.
— order the Commission to pay the costs of the present                   7. Misinterpretation and misapplication of Community law
    proceedings and of the proceedings at first instance.                    in relation to the principle of proportionality between
                                                                             infringement and fine.
Pleas in law and main arguments
A. Procedural grounds
                                                                         Appeal brought on 5 July 1999 by Wacker-Chemie GmbH
1. Misinterpretation and misapplication of Article 44(1)(c) of           and Hoechst AG against the judgment delivered on 20
    the Rules of Procedure of the Court of First Instance and            April 1999 by the Third Chamber, Extended Composition,
    Community case-law in relation to admissibility.                     of the Court of First Instance of the European Communi-
                                                                         ties 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,
2. Misinterpretation and misapplication of Community law                 T-325/94, T-328/94, T-329/94 and T-335/94 between Lim-
    in relation to the force of res judicata.                            burgse Vinyl Maatschappij NV, Elf Atochem SA, BASF
                                                                         AG, Shell International Chemical Company Ltd, DSM
3. Misinterpretation and misapplication of Community law                 NV and DSM Kunststoffen BV, Wacker-Chemie GmbH,
    in relation to the invalidity of the procedural steps leading        Hoechst AG, Société Artésienne de Vinyle, Montedison
    to the adoption of the decision.                                     SpA, Imperial Chemical Industries plc, Hüls AG and
                                                                         Enichem SpA, and the Commission of the European
4. Misinterpretation and misapplication of Community law                                         Communities
    in relation to the rights of defence in the event of the
    re-adoption of a annulled infringement decision.                                           (Case C-252/99 P)
5. Infringement of Article 190 of the EC Treaty: deficient                                      (1999/C 352/25)
    statement of reasons as regards the sufficiency of the
    reasons relied upon by the Commission in support of its
    re-adoption of the PVC decision.                                     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
                                                                         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,
B. Substantive grounds                                                   T-329/94 and T-335/94 between Limburgse Vinyl Maatschap-
                                                                         pij NV, Elf Atochem SA, BASF AG, Shell International
1. Misinterpretation and misapplication of Community law                 Chemical Company Ltd, DSM NV and DSM Kunststoffen BV,
    in relation to the consequences flowing from the Court of            Wacker-Chemie GmbH, Hoechst AG, Société Artésienne de
    First Instance’s finding of inconsistency between the two            Vinyle, Montedison SpA, Imperial Chemical Industries plc,
    documents setting out the complaint against the Com-                 Hüls AG and Enichem SpA, and the Commission of the
    mission (‘planning documents’’).                                     European Communities was brought before the Court of
                                                                         Justice of the European Communities on 5 July 1999 by
2. Misapplication of Community law, including recent case-               Wacker-Chernie GmbH and Hoechst AG, represented by Hans
    law, in relation to individual liability for a collective            Hellmann, Rechtsanwalt, Amn Morsdorfer Hof 16, D-50933
    infringement.                                                        Cologne.
3. Infringement of Community law in relation to the parties’             The appellants claim that the Court should:
    rights of defence, in particular as regards access to the case
    file.                                                                1. set aside paragraphs 4 and 5 of the operative part of the
                                                                             judgment delivered by the Court of First Instance on
                                                                             20 April 1999 in Case T-315/94 Wacker-Chemie GmbH
4. Misinterpretation and misapplication to the present case                  v Commission and Case T-316/94 Hoechst AG v Com-
    of the principles relating to the fixing of the fines / Incor-           mission, and
    rect assessment of the relationship between turnover and
    the amount of the fine.                                                  (a) annul, in so far as it is addressed to the appellants,
                                                                                 Commission Decision 94/599/EC of 27 July 1994 (1)
5. Misinterpretation and misapplication of Community law,                        in cartel proceeding IV/31.865 — PVC, constituting
    including recent case-law, in relation to the obligations of                 the subject-matter of the action, in accordance with
    the Commission concerning the statement of the criteria                      the application made therein, alternatively, reduce the
    for calculating the fines.                                                   fine imposed on them; or
 ---pagebreak--- 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.