Hercules Chemicals NV v Commission of the European Communities.
Date: 1999-07-08
58 According to settled case-law, to allow a party to put forward for the first time before the Court of Justice a plea in law which it has not raised before the Court of First Instance would mean allowing that party to bring before the Court, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the Court of First Instance. In an appeal the Court's jurisdiction is thus confined to examining the assessment by the Court of First Instance of the pleas argued before it (see, in particular, Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 59, and Case C-7/95 P Deere v Commission [1998] ECR I-3111, paragraph 62).
75 In that regard, it must be observed that access to the file in competition cases is intended in particular to enable the addressees of statements of objections to acquaint themselves with the evidence in the Commission's file so that on the basis of that evidence they can express their views effectively on the conclusions reached by the Commission in its statement of objections (Michelin v Commission, cited above, paragraph 7; Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraphs 9 and 11; Case C-310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I-865, paragraph 21; and Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 89).
78 In such a case, the infringement committed is not remedied by the mere fact that access was made possible at a later stage, in particular during the judicial proceedings relating to an action in which annulment of the contested decision is sought.
79 Although belated disclosure of documents in the file allows the undertaking that has brought an action against a Commission decision to derive from them pleas and arguments in support of the forms of order it is seeking, it does not put the undertaking back into the situation it would have been in if it had been able to rely on those documents in presenting its written and oral observations to the Commission. It is not therefore an adequate remedy for the infringement of the rights of the defence that occurred before the decision was adopted.
81 That conclusion is not open to the objection that that is tantamount to conferring rights of defence only on the innocent, as Hercules claims. The undertaking concerned does not have to show that, if it had had access to the replies provided by the other producers to the statement of objections, the Commission decision would have been different in content, but only that it would have been able to use those documents for its defence.
109 First, it must be remembered that, according to settled case-law, it is not for the Court of Justice, when deciding questions of law in the context of an appeal, to substitute, on grounds of fairness, its own appraisal for that of the Court of First Instance adjudicating, in the exercise of its unlimited jurisdiction, on the amount of a fine imposed on an undertaking by reason of its infringement of Community law (see in particular Case C-320/92 P Finsider v Commission [1994] ECR I-5697, paragraph 46).
110 Secondly, under the case-law it is indeed the case that, where an infringement has been committed by several undertakings, the relative gravity of the participation of each undertaking must be examined (see, to that effect, Joined Cases 40/73 to 48/73, 50/73, 54/73 to 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 623). However, in paragraph 323 of the contested judgment, the Court of First Instance found that the Commission had correctly established the role played by Hercules in the infringement and that the Commission had indicated in the Polypropylene Decision that it had taken account of that role when determining the amount of the fine. The Court of First Instance cannot therefore be held to have committed an error of law in that respect.
113 Fifthly and lastly, Hercules' allegation that the Court of First Instance misapplied Article 85(1) of the Treaty as regards its participation in a system of sales volume targets and quotas from 1981 onwards is too general and imprecise to be assessed by the Court.  A mere abstract statement of a plea in the application does not satisfy the requirements of the first paragraph of Article 19 of the EC Statute of the Court of Justice and Article 38(1)(c) of its Rules of Procedure (see, inter alia, to that effect Case C-330/88 Grifoni v EAEC [1991] ECR I-1045, paragraph 18).