Limburgse Vinyl Maatschappij NV (LVM) (C-238/99 P), DSM NV and DSM Kunststoffen BV (C-244/99 P), Montedison SpA (C-245/99 P), Elf Atochem SA (C-247/99 P), Degussa AG (C-250/99 P), Enichem SpA (C-251/99 P), Wacker-Chemie GmbH and Hoechst AG (C-252/99 P) and Imperial Chemical Industries plc (ICI) (C-254/99 P) v Commission of the European Communities.
Date: 2002-10-15
44 In that connection, it should be observed that, in paragraph 77 of the contested judgment, the Court of First Instance rightly pointed out that the principle of res judicata extends only to matters of fact and law actually or necessarily settled by the judicial decision in question (Case C-281/89 Italy v Commission [1991] ECR I-347, paragraph 14, and Case C-277/95 Lenz v Commission [1996] ECR I-6109, paragraph 50).
48 Accordingly, the Court's judgment of 15 June 1994 imposed on the Commission only the obligation - pursuant to Article 176 of the EC Treaty (now Article 233 EC), which requires an institution whose act has been declared void to take the necessary measures to comply with the judgment of the Court - to eliminate the illegality in the measure intended to replace the annulled measure (see, to that effect, Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris v Commission [1988] ECR 2181, paragraph 28).
59 In that regard, it should be observed that, as is apparent from the grounds of the contested judgment, the principle of non bis in idem, which is a fundamental principle of Community law also enshrined in Article 4(1) of Protocol No 7 to the ECHR, precludes, in competition matters, an undertaking from being found guilty or proceedings from being brought against it a second time on the grounds of anti-competitive conduct in respect of which it has been penalised or declared not liable by a previous unappealable decision.
72 In that connection, the Court of First Instance, relying on settled case-law to the effect that it is the grounds of a judgment ordering annulment which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part (Asteris, cited above, paragraph 27, and Case C-415/96 Spain v Commission [1998] ECR I-6993, paragraph 31) rightly held, in paragraph 184 of the contested judgment, that, in order to determine the scope of the Court's judgment of 15 June 1994, it was necessary to refer to the grounds of that judgment.
73 Annulment of a Community measure does not necessarily affect the preparatory acts (Spain v Commission, cited above, paragraph 32), since the procedure for replacing such a measure may, in principle, be resumed at the very point at which the illegality occurred (Spain v Commission, paragraph 31).
74 In paragraph 189 of the contested judgment, the Court of First Instance stated that the Court of Justice, by its judgment of 15 June 1994, had annulled the PVC I decision on account of a procedural defect affecting only the manner in which it was finally adopted by the Commission.
75 It was therefore entitled to conclude that, since the procedural defect had occurred at the final stage of adoption of the PVC I decision, the annulment did not affect the validity of the measures preparatory to that decision which were taken before the stage at which the defect was found (see, with respect to a directive, Case 331/88 Fedesa and Others [1990] ECR I-4023, paragraph 34).
83 Each of the appellants submits that the annulment of the PVC I decision meant that a fresh hearing of the undertakings pursuant to Article 19(1) of Regulation No 17 was necessary for the adoption of the PVC II decision. LVM and DSM argue that that requirement arises from the fundamental principle of observance of the rights of the defence, the scope of which cannot be defined or limited by provisions of secondary law on account of the primacy of the fundamental principles of Community law.
84 The appellants also complain of the Court of First Instance's finding, in paragraphs 251 and 252 of the contested judgment, that a new hearing was not required in the absence of new objections.
85 In that regard, it should be stated that the Court of First Instance rightly observed, in paragraph 246 of the contested judgment, that, in all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of Community law which must be complied with, even if the proceedings in question are administrative proceedings (Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 9).
86 It also correctly pointed out, in paragraph 247 of the contested judgment, that Article 19(1) of Regulation No 17 and Article 4 of Regulation No 99/63, which apply that principle, require the Commission to deal in its final decision only with those objections on which the undertakings and associations of undertakings concerned have had the opportunity to put their case.
87 It was therefore entitled to conclude, in paragraph 249 of the contested judgment, that observance of the rights of the defence requires that each undertaking or association of undertakings concerned be given the opportunity to be heard as to the objections raised against each of them which the Commission proposes to deal with in the final decision finding infringement of the competition rules. In so doing, it did not lay down any limitation by the provisions of Regulation No 17 and Regulation No 99/63 of the fundamental principle of observance of the rights of the defence but in fact stated its content in relation to competition law.
88 Having gone on to declare that the PVC II decision did not contain any new objection as compared with the text of the PVC I decision, the Court of First Instance did not err in law in ruling, in paragraph 252 of the contested judgment, that no new hearing was required prior to adoption of the PVC II decision.
89 Three series of arguments have been put forward to no avail in opposition to that ruling.
90 First, LVM, DSM, Elf Atochem, Degussa, Enichem and ICI maintain that a new hearing would have enabled them to submit appropriate observations as to the consequences of the annulment of the PVC I decision. Thus, they could have commented on the need for, and the expediency of, the adoption of the PVC II decision, on issues such as the passage of time, the principles of res judicata and non bis in idem, developments in the case-law subsequent to the adoption of the PVC I decision and the access to the file which re-opening of the proceedings necessarily entails, on the obligation to have the Hearing Officer consider certain matters, on the obligation to consult the Advisory Committee, on the implications of Article 20 of Regulation No 17 and on the development of the PVC market since 1988.
91 In that connection, it must be pointed out that the assertion of a right to submit observations on the need for, and the expediency of, the adoption of a new decision after the annulment of the PVC I decision exceeds the parameters of the rights of the defence as laid down by Regulations Nos 17 and 99/63, which are limited to questions concerning the truth and relevance of the facts and matters alleged and the documents used by the Commission to support its claim that there has been an infringement of competition law (Hoffmann-La Roche, cited above, paragraph 11). The rights of the defence were observed prior to adoption of the PVC I decision. At the initial hearings, the undertakings concerned were able to submit their observations on the objections raised by the Commission, which then served as the basis of the assessment for the purposes of adoption of the PVC II decision.
92 Developments in the case-law or in the economic context cannot in themselves render new hearings necessary, any more than if they occur in the course of administrative proceedings prior to a final decision.
93 By the same token, the questions of law which may arise in the context of the application of Article 176 of the Treaty, such as those relating to the passage of time, the possibility of resuming proceedings, the access to the file required on resumption of the proceedings, the intervention of the Hearing Officer and the Advisory Committee and the possible implications of Article 20 of Regulation No 17, do not render a new hearing necessary since they do not alter the substance of the objections, being at most amenable to subsequent judicial review.
94 Second, LVM and DSM dispute the finding by the Court of First Instance that the PVC II decision contains no new objection as compared with the PVC I decision. In that regard, they allege that `important amendments' were made in the PVC II decision as compared with the PVC I decision, namely a new operative part, amendments to the statement of reasons as regards the facts and law and a new chapter concerning prescription. More generally, LVM and DSM consider that the relevant legal test is not whether it is possible to qualify new facts and circumstances as `objections' but only whether there are new facts and circumstances in respect of which the undertakings have not yet submitted observations. In this case, the new facts include the issues referred to in paragraph 90 of this judgment, in respect of which the appellants wished to submit observations, and the amendments to the PVC II decision.
95 Elf Atochem asserts that the Commission was required to hold new hearings by virtue of the sole fact that, according to the appellant, the PVC II decision contains `new facts' as compared with the PVC I decision. First, the PVC II decision excludes Norsk Hydro and Solvay, which are no longer the subject of the proceedings. Second, those two companies nevertheless continue to be referred to with respect to the collective conduct alleged against the undertakings to which the PVC II decision is addressed, so that the two successive decisions of the Commission concern alleged agreements or concerted practices in respect of which the participants proceeded against in 1994 are different from those proceeded against in 1998. Third, the PVC II decision contains arguments relating to limitation, which are intended to justify the right to adopt a new decision. According to Elf Atochem, it is in any event of little relevance whether the new decision contains new objections. A new hearing is always required. The Commission cannot simply repeat the objections contained in a previous annulled decision. Every decision adopted by the Commission must contain its own set of objections.
96 In that regard, it should be observed that, contrary to what LVM and DSM claim, the differences between the operative parts of the PVC I and the PVC II decisions and the arguments relating to limitation do not constitute a new objection upheld by the Commission in the PVC II decision. The appellants do not state which of the alleged amendments of fact and law indicate, in their view, that new objections were taken into account; nor do they show how those amendments actually relate to such objections.
97 Moreover, contrary to the claims made both by LVM and DSM and by Elf Atochem, the mere existence of differences between the two successive decisions
of the Commission did not in itself render new hearings necessary, since those differences did not involve the consideration of new objections.
98 Where, following the annulment of a decision in a competition matter, the Commission chooses to rectify the illegality or illegalities found and to adopt a new identical decision which is not vitiated by those illegalities, that decision relates to the same objections as those in respect of which the undertakings have already submitted observations. Elf Atochem cannot therefore validly maintain that the PVC I and the PVC II decisions each refer to separate sets of complaints.
99 It must additionally be stated that the differences between the PVC I and PVC II decisions with respect to Norsk Hydro and Solvay are merely the result of the scheme of legal remedies available against a decision adopted in a competition matter with respect to several enterprises.
100 Although drafted and published as a single decision, such a decision must be regarded as a group of individual decisions establishing, in relation to each of the undertakings to which it is addressed, the breach or breaches which that undertaking has been found to have committed and, where appropriate, imposing on it a fine. It can be annulled only with respect to those addressees which have successfully brought an action before the Community judicature, and remains binding on those addressees which have not applied for its annulment (see, to that effect, Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraph 49 et seq.).
101 In this case, Solvay did not bring an action against the PVC I decision and the action brought against that decision by Norsk Hydro was declared inadmissible by the order in Norsk Hydro, cited above.
102 Therefore, since the PVC I decision had become final in relation to those two undertakings, they could no longer be addressees of the PVC II decision. Nevertheless, to the extent that they were involved in the objections raised with respect to all the undertakings initially implicated, their respective roles could be taken into account by the Commission in the PVC II decision in so far as they related to the objections raised against the addressees of that decision for the purposes of establishing the infringements found to have been committed by those addressees, each within the limits of its own liability. The PVC I and PVC II decisions do not therefore relate to agreements or concerted practices in respect of which the participants proceeded against in 1994 are different from those proceeded against in 1988. They concern the same agreements or concerted practices in respect of the same undertakings which, solely by virtue of the application of procedural rules, were penalised by two successive decisions.
103 The arguments relating to limitation in respect of the PVC II decision, alleged by Elf Atochem to constitute a third difference as compared with the PVC I decision, are clearly unrelated to any new objection, since they do not concern any conduct other than that in respect of which the undertakings had already submitted observations.
104 Finally, Wacker-Chemie and Hoechst complain that the Court of First Instance did not accept the need for new hearings in the absence of new objections even though the PVC II decision extended the duration of the infringement found to have been committed, was unfounded as regards the order to terminate the infringement made in Article 2 of the decision and did not determine the amount of the fine in accordance with Article 15(2) of Regulation No 17.
105 Solely as a result of the date of adoption of the PVC II decision, the duration of the infringement found to have been committed was extended by five and a half years as compared with the infringement established as at the date of adoption of the PVC I decision.
106 However, Articles 1 and 3 of the PVC II decision, like Articles 1 and 3 of the PVC I decision respectively, stated that the appellants had participated in the infringement found to have been committed and imposed fines on those undertakings. As regards, in particular, Wacker-Chemie and Hoechst, point 54 of the account of the facts contained in each of the PVC I and PVC II decisions states that the amount of the fines was assessed on the basis that their participation in the cartel continued `until at least May 1984'. Consequently, the adoption of the PVC II decision on 27 July 1994 did not have the effect of prolonging the infringement penalised as compared with the PVC I decision, since the duration of the infringement actually taken into account was the same.
107 Wacker-Chemie and Hoechst submit that the order to terminate the infringement presupposes the existence of proof that the infringement was continuing at the time of adoption of the PVC II decision and that, in the absence of such proof, the legal basis of that order had been eliminated as a result of the passage of time. They further assert that they had definitively terminated their activity on the PVC market before the adoption of the PVC II decision, and could not therefore be required to terminate any infringement.
108 However, it should be observed that, in point 50 of the of the account of the facts contained in both the PVC I and the PVC II decisions, the Commission stated that, notwithstanding assurances given by some undertakings during the administrative procedure, it did not know `whether meetings or at least some communication between firms on prices and volumes have in fact ever ceased'. It therefore concluded that it was necessary `to include in any decision a formal requirement that those undertakings still active in the PVC sector terminate the infringement'. It therefore ordered the undertakings, in Article 2 of the PVC II decision as previously in Article 2 of the PVC I decision, to terminate the infringement immediately `if they have not already done so'. The order made was thus directed only at those undertakings which were still committing the infringement at the time of adoption of the decision. Just as in the PVC I decision, the order made in the PVC II decision was therefore simply irrelevant as regards those undertakings which had already terminated the infringement by the date of its adoption. It was also irrelevant in relation to Wacker-Chemie and Hoechst if, as they maintain, they had definitively terminated their activities on the PVC market, since Article 2 of the PVC II decision, like Article 2 of the PVC I decision, refers to undertakings `still involved in the PVC sector'.
109 Finally, with respect to the determination of the amount of the fine, Wacker-Chemie and Hoechst submit that a fine imposed some considerable time after the alleged offences need not lead to the same result as a penalty imposed immediately after the infringement and that the Commission should have determined the turnover for the last business year prior to the PVC II decision in accordance with Article 15(2) of Regulation No 17, which provides that the maximum fine which can be imposed is 10% of the turnover realised in the preceding business year.
110 In that connection, it must be pointed out that the obligation to take into account the turnover for the preceding business year arises at the stage of the final decision of the Commission for the purposes of determining the maximum amount of the fine. The need to ascertain that turnover therefore arises after the hearing of the undertakings, which is designed to enable them to submit their observations on the objections raised against them. Furthermore, it arises only if, at the end of the hearing, the Commission considers that the infringement has been established. Accordingly, the appellants' argument is irrelevant for the purposes of establishing, in the present case, the existence of an obligation to hold a new hearing.
111 It follows that the objection concerning the absence of a new hearing of the undertakings concerned must be rejected.
(c) The objection that the Advisory Committee was not re-consulted
115 In paragraph 256 of the contested judgment, the Court of First Instance rightly observed that, pursuant to that provision, the hearing of the undertakings concerned and the consultation of the Advisory Committee are necessary in the same situations (Joined Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859, paragraph 54).
118 In those circumstances, since the PVC II decision did not contain substantial amendments as compared with the PVC I decision, on a draft of which the Advisory Committee had been consulted pursuant to Article 10(5) of Regulation No 17, the Court of First Instance was right to hold, in paragraph 257 of the contested judgment, that fresh consultation of the Advisory Committee was not required (see, by analogy, with respect to consultation of the Parliament during the legislative process, Case C-392/95 Parliament v Council [1997] ECR I-3213, paragraph 15).
137 It should be observed that, according to Article 4(2) of Regulation No 2988/74, the limitation period for the enforcement of sanctions begins to run only on the day on which `the decision becomes final', that is to say, either from expiry of the period for bringing an action against the decision on the infringement and the fine, where no action has been brought, or from the decision of the Community judicature giving a final ruling on an action which has been brought, where that action is dismissed, since it is clear that the question of the limitation period for enforcement is devoid of purpose where the decision is annulled.
146 Accordingly, the wording and the purpose of Article 3 cover both actions brought against the challengeable measures referred to in Article 2 and actions brought against a final decision of the Commission.
153 However, the Court of First Instance rightly held, in paragraph 1100 of the contested judgment, first, that Article 3 of Regulation No 2988/74 has meaning only where a decision finding an infringement and imposing a fine, which forms the subject-matter of the action, is annulled and, second, that any annulment of a measure which the Commission has adopted is necessarily imputable to it, in the sense that it reveals an error on the Commission's part. The Court of First Instance was therefore entitled to conclude that to exclude suspension of the limitation period where the action leads to recognition of an error attributable to the Commission would deprive Article 3 of the regulation of all meaning. As it pointed out, it is the very fact that an action is pending before the Court of First Instance or the Court of Justice which justifies the suspension, and not the conclusions reached by those courts in their judgment.
167 However, it should be stated that, in paragraph 120 of the contested judgment, the Court of First Instance rightly observed that, as it had already ruled in paragraph 53 of the judgment in SCK and FNK, cited above:
- in accordance with settled case-law, fundamental rights form an integral part of the general principles of Community law whose observance is ensured by the Community judicature (see, in particular, Opinion 2/94 of the Court of Justice [1996] ECR I-1759, paragraph 33, and Case C-299/95 Kremzow [1997] ECR I-2629, paragraph 14);
- for that purpose, the Court of Justice and the Court of First Instance draw inspiration from the constitutional traditions common to the Member States and the guidelines supplied by international treaties and conventions on the protection of human rights on which the Member States have collaborated or to which they are signatories;
- the ECHR has special significance in that respect (Case 222/84 Johnston [1986] ECR 1651, paragraph 18, and Kremzow, cited above, paragraph 14);
- furthermore, Article F.2 of the Treaty on European Union (now, after amendment, Article 6(2) EU) provides that `[t]he Union shall respect fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, as general principles of Community law'.
168 In paragraph 121 of the contested judgment, it then stated that it was necessary to examine whether the Commission had infringed the general principle of Community law that decisions adopted following administrative proceedings in competition matters must be adopted within a reasonable time.
169 In referring in that connection to paragraph 56 of its judgment in SCK and FNK, in which it held that:
- it is a general principle of Community law that the Commission must act within a reasonable time in adopting decisions following administrative proceedings relating to competition policy;
- it is therefore unnecessary to rule on the question whether Article 6(1) of the ECHR is, as such, applicable to administrative proceedings before the Commission relating to competition policy,
the Court of First Instance responded implicitly but necessarily to the plea based on the direct applicability of Article 6 of the ECHR.
170 As to the substance, the Court of First Instance, referring to the wording of Article F.2 of the Treaty on European Union, correctly held that, in the Community legal system, the fundamental rights guaranteed by the ECHR are protected as general principles of Community law.
171 Contrary to the appellants' assertion, it did not disregard the judgment in Baustahlgewebe, cited above, in paragraphs 20 and 21 of which the Court of Justice, having referred to the content of Article 6(1) of the ECHR, described as a general principle of Community law the right of all persons to a fair hearing and, in particular, the right to a hearing within a reasonable period of time.
179 In competition matters, the principle that action must be taken within a reasonable period must be observed in administrative proceedings conducted pursuant to Regulation No 17 which may lead to the penalties provided for therein. In the event of an action brought against an administrative decision, it must also be observed in the judicial proceedings before the Community judicature (Baustahlgewebe, paragraph 21).
(i) Complaints regarding the administrative procedure conducted by the Commission
- Division of the administrative procedure into two stages
180 LVM, DSM and Degussa complain that, in paragraph 124 of the contested judgment, the Court of First Instance divided the administrative procedure into two stages: one beginning with the investigations carried out in the PVC sector in November 1983 and based on Article 14 of Regulation No 17, the other beginning on the date of receipt by the undertakings concerned of the statement of objections and leading to the adoption of the PVC II decision, excluding the period covered by the examination by the Community judicature of the legality of the PVC I decision and of the validity of the Court of First Instance's judgment of 27 February 1992 delivered as a result of actions brought against the PVC I decision.
181 In that connection, it should be observed that, contrary to what the appellants maintain, an administrative procedure may involve an examination in two successive stages.
182 The first stage, covering the period up to notification of the statement of objections, begins on the date on which the Commission, exercising the powers conferred on it by Articles 11 and 14 of Regulation No 17 in the context of a preliminary investigation, takes measures involving a complaint that an infringement has been committed and having a significant impact on the situation of the suspected undertakings (see, to that effect, with respect to a preliminary investigation in a criminal case, the judgment of the European Court of Human Rights of 16 July 1971 in the case of Ringeisen, Series A No 13, p. 40, paragraph 110; see also the judgment of that court in Corigliano, cited above, paragraph 34, and its judgment of 22 May 1998 in Hozee v Netherlands, Reports of Judgments and Decisions 1998-III, p. 1091, paragraph 43). This stage must enable the Commission, after investigation, to adopt a position on the course which the procedure is to follow.
183 The second stage covers the period from notification of the statement of objections to adoption of the final decision. It must enable the Commission to reach a final decision on the alleged infringement.
184 Since each of those two stages has its own internal logic, the complaint must be rejected.
- Failure to consider the duration of the administrative procedure in the light of all the criteria for assessing what constitutes a reasonable period
185 LVM and DSM allege that the reasoning of the Court of First Instance was incorrect and that it failed to comply with its legal obligation to consider the reasonableness of the relevant period in the light of all the assessment criteria, namely the complexity of the case, its importance for the undertakings concerned and the conduct of those undertakings and of the competent authorities.
186 They claim that, with respect to the first stage of the administrative procedure, the Court of First Instance, in paragraphs 128 to 130 of the contested judgment, examined the reasonableness of the period in question by reference only to the criterion of the complexity of the case, thereby totally failing, without any explanation, to have regard to the criteria of the importance of the case and the conduct of the authorities. They also submit that, with respect to the second stage of the administrative procedure, the Court of First Instance, in paragraphs 132 and 133 of the contested judgment, merely examined the reasonableness of the time taken in the light of what was at stake in the case, thereby again failing to consider the other criteria.
187 In that regard, it should be borne in mind that the reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities (Baustahlgewebe, paragraph 29).
188 However, that list of criteria is not exhaustive and the assessment of the reasonableness of the period in question does not require a systematic examination of the circumstances of the case in the light of each of them where the duration of the proceedings appears justified in the light of one of them. The purpose of those criteria is to determine whether the time taken in the handling of a case is justified. Thus, the complexity of the case or the dilatory conduct of the applicant may be deemed to justify a duration which is prima facie too long. Conversely, the time taken may be regarded as longer than is reasonable in the light of just one criterion, in particular where its duration is the result of the conduct of the competent authorities. Where appropriate, the duration of a procedural stage may be regarded as reasonable from the outset if it appears to be consistent with the average time taken in handling a case of its type.
189 The Court of First Instance was therefore not obliged to assess the reasonableness of the time taken in the light of all of the criteria referred to by LVM and DSM, since, in paragraphs 124 to 133 of the contested judgment, it considered that the duration of the first procedural stage, namely four years and four months, was justified by the complexity of the case and that the second, lasting 10 months, could not even be considered excessive.
190 It follows that the complaint must be rejected.
- Infringement of the principle that decisions are to be adopted within a reasonable time on account of the duration of the administrative procedure
191 LVM, DSM, Degussa and ICI object to the finding of the Court of First Instance, in paragraph 134 of the contested judgment, that the PVC II decision had been adopted within a reasonable time even though the first stage of the administrative procedure lasted 52 months and a period of inaction by the Commission of approximately 41 months had been pleaded before it. ICI states that the Commission took no action whatever between June 1984 and January 1987. It refers to judgments of the European Court of Human Rights in cases where, respectively, a period of four years elapsed while a matter was pending before the trial court and a period of 15 months elapsed during a period of preliminary investigation before indictment (judgments of the European Court of Human Rights of 10 July 1984 in Guincho, Series A No 81, and of 27 June 1968 in Neumeister, Series A No 8). It also refers to paragraphs 45 and 46 of the judgment in Baustahlgewebe, which concerned a period of 32 months between the end of the written procedure before the Court of First Instance and the decision to open the oral procedure and a further period of 22 months between the close of the oral procedure and delivery of the judgment. LVM and DSM observe that the European Court of Human Rights has held that a period of inactivity of more than three years is excessive (judgment of the European Court of Human Rights of 13 July 1983 in Zimmermann and Steiner, Series A No 66, paragraph 29). It established a yardstick of two years for criminal matters in its judgment of 28 March 1990 in B v Austria, Series A No 175, a case lasting 33 months. According to the established case-law of the European Court of Human Rights, a reasonable period cannot therefore exceed two years.
192 It should be observed in that respect that the reasonableness of a period cannot be assessed by reference to a precise maximum limit determined in an abstract manner but, rather, must be appraised in the light of the specific circumstances of each case.
193 An initial general examination is carried out to determine whether the period in question is prima facie too long having regard to the procedure being conducted. If it is, a more specific examination is required as to whether there have been any actual delays which cannot be justified by the circumstances of the case.
194 As regards an administrative procedure relating to competition law, the Court of First Instance has exclusive jurisdiction to establish and assess the relevant facts except where those facts are clearly distorted and then, subject to review by the Court of Justice, to define their legal nature with regard to observance of the principle that decisions should be adopted within a reasonable time (see, to that effect, Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 49).
195 In the present case, the Court of First Instance held, in paragraphs 125 to 133 of the contested judgment, that the first stage of the administrative procedure lasted four years and four months and the second 10 months.
196 With respect to the first stage, it held as follows, in paragraphs 128 to 130 of the contested judgment:
`128 The facts which had to be elucidated by the Commission were highly complex owing to the type of conduct in question and its range across the geographical market concerned, covering the whole area of activity in the common market of the principal PVC producers.
129 Another factor contributing to the difficulty in establishing the facts was the confused mass of documents collected by the Commission. The documents obtained from its investigations at the premises of various petrochemical product manufacturers during the period concerned and the replies of the latter to the questions put by the Commission under Article 11 of Regulation No 17 constituted a particularly bulky file. Moreover, amongst the myriad documents obtained during the administrative procedure, the Commission had to distinguish between those belonging to the PVC file and those belonging to the file investigated in parallel in the neighbouring PEBD [low density polyethylene] sector, itself the subject, like other thermoplastic products at the same period, of an investigation and a procedure for determining infringements imputed to undertakings amongst which many are also parties to this case. It should also be noted that the file of the case which led to the [PVC II] Decision contained, on a first administrative numbering, a series of documents comprising 1072 pages, and, on another numbering, more than 5000 pages, excluding internal Commission documents.
130 Finally, the complexity of the facts to be elucidated arose from the difficulty of establishing proof of the participation of undertakings in the alleged concerted practice and from the number of undertakings involved. On that point, the [PVC II] Decision states that "17 undertakings took part in the infringement during the period covered ..." (point 2, second subparagraph, of the Decision) and that 14 undertakings had been addressees of the original decision.'
197 With respect to the second stage of the administrative procedure, the Court of First Instance, in paragraph 132 of the contested judgment, stressed its importance for the undertakings concerned from the point of view of, first, taking cognisance of the subject-matter of the procedure initiated against them and of the conduct of which it was accused by the Commission and, second, the specific interest of those undertakings in that second stage of the procedure being conducted with particular diligence by the Commission.
198 In paragraph 133 of the contested judgment, with regard to the 10-month duration of that second stage of the administrative procedure, the Court of First Instance stated as follows:
`133 ... That is not sufficient to justify a complaint of undue delay. The objections were notified to the undertakings concerned at the beginning of April 1988. The undertakings replied to the statement of objections in June 1988. Apart from Shell, which did not so request, the undertakings to which the statement of objections was addressed were heard between 5 and 8 September 1988 and on 19 September 1988. The Advisory Committee on Restrictive Practices and Dominant Positions delivered its opinion on the preliminary draft Commission decision on 1 December 1988, and the Commission adopted its original decision 20 days later. The [PVC II] Decision itself was adopted 42 days after delivery of the judgment of 15 June 1994.'
199 In the light of all those findings and assessments set out in the contested judgment, it is apparent that the Court of First Instance, in paragraphs 127 and 134 of the that judgment, was right to deem the duration of the conduct by the Commission of each of the two stages of the administrative procedure preceding adoption of the PVC II decision to be reasonable before correctly concluding, in paragraph 135 of that judgment, that, throughout the whole of that administrative procedure, the Commission complied with the principle that it must act within a reasonable time.
200 Accordingly, this complaint examined must be rejected.
(ii) The complaint that the Court of First Instance failed to consider the judicial proceedings prior to adoption of the PVC II decision from the standpoint of the principle that action must be taken within a reasonable time
201 LVM, DSM, Degussa and ICI complain that, in paragraph 123 of the contested judgment, the Court of First Instance failed, in its assessment of compliance with the principle that action must be taken within a reasonable period, to consider the duration of the two sets of judicial proceedings which led, respectively, to the judgment of the Court of First Instance of 27 February 1992 and to the Court's judgment of 15 June 1994, even though the appellants had submitted that that duration was attributable to the Commission in view of the procedural infringements which it was found to have committed at the end of the proceedings in question. They complain that the Court of First Instance thus limited its assessment to the duration of the administrative procedure before the Commission.
202 In that regard, it must be observed that, in paragraph 123 of the contested judgment, the Court of First Instance ruled as follows with respect to the requested examination of the two sets of judicial proceedings preceding the adoption of the PVC II decision:
`123 In this case, the administrative procedure before the Commission lasted for a total of some 62 months. The period during which the Community judicature examined the legality of the [PVC I] decision and the validity of the judgment of the Court of First Instance [of 27 February 1992] cannot be taken into account in determining the duration of the procedure before the Commission.'
203 By that reasoning, it rejected the argument that the duration of the judicial proceedings leading to the annulment of the Commission's first decision could be attributed to that institution simply because the illegality leading to the annulment was itself attributable to it.
204 In that respect, it merely drew the appropriate conclusions from the fact that, before it, the appellants:
- did not allege that the duration of the judicial proceedings leading to the annulment of the PVC I decision had been excessive;
- neither attempted to show nor even pleaded any specific delay in those proceedings which was attributable either to the Community judicature or to the Commission itself on account of its conduct during those proceedings.
205 Accordingly, this complaint must be rejected.
(iii) The complaint of infringement by the Court of Justice of the principle that action is to be taken within a reasonable time on account of the length of the judicial proceedings culminating in the contested judgment
207 As already pointed out in paragraph 179 of this judgment, the general principle of Community law that action is to be taken within a reasonable time is applicable in the context of judicial proceedings brought against a decision of the Commission imposing fines for infringement of competition law (Baustahlgewebe, paragraph 21).
210 Such a duration appears prima facie considerable. However, as pointed out in paragraph 187 of this judgment, the reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities (Baustahlgewebe, paragraph 29).
274 The parties agree that, since Orkem, there have been further developments in the case-law of the European Court of Human Rights which the Community judicature must take into account when interpreting the fundamental rights, as introduced by the judgment in Funke, cited above, on which the appellants rely, and the judgments of 17 December 1996 in Saunders v United Kingdom (Reports of Judgments and Decisions 1996-VI, p. 2044) and of 3 May 2001 in J.B. v Switzerland (not yet published in the Reports of Judgments and Decisions).
275 However, both the Orkem judgment and the recent case-law of the European Court of Human Rights require, first, the exercise of coercion against the suspect in order to obtain information from him and, second, establishment of the existence of an actual interference with the right which they define.
276 Examined in the light of that finding and the specific circumstances of the present case, the ground of appeal alleging infringement of the privilege against self-incrimination does not permit annulment of the contested judgment on the basis of the developments in the case-law of the European Court of Human Rights.
285 It then proceeded to carry out an appraisal of the facts which does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (see, in particular, Joined Cases C-280/99 P to C-282/99 P Moccia Irme and Others v Commission [2001] ECR I-4717, paragraph 78, and the order of 13 November 2001 in Case C-430/00 P Dürbeck v Commission [2001] ECR I-8547, paragraph 24).
315 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 (see Case C-51/92 P Hercules Chemicals v Commission [1999] ECR I-4235, paragraph 75, and the case-law cited therein).
316 The right of access to the Commission's file is therefore designed to ensure effective exercise of the rights of the defence (see Hercules Chemicals, cited above, paragraph 76). Those rights are not only fundamental principles of Community law but are also enshrined in Article 6 of the ECHR, as is pointed out in paragraph 299 of this judgment.
317 Infringement of the right of access to the Commission's file during the procedure prior to adoption of the decision can, in principle, cause the decision to be annulled if the rights of defence of the undertaking concerned have been infringed (Hercules Chemicals, paragraph 77).
318 In such a case, the infringement committed is not remedied by the mere fact that access was made possible during the judicial proceedings relating to an action in which annulment of the contested decision is sought. Where access has been granted at that stage, the undertaking concerned does not have to show that, if it had had access to the non-disclosed documents, the Commission decision would have been different in content, but only that it would have been able to use those documents for its defence (Hercules Chemicals, paragraphs 78 and 81).
330 In that connection, it should be borne in mind that the appraisal of the facts by the Court of First Instance does not - save where the clear sense of the evidence produced before it is distorted - constitute a question of law which is subject, as such, to review by the Court of Justice (see paragraph 285 of this judgment).
404 Contrary to what Hoechst maintains, the Court of First Instance, which had at its disposal various items of documentary evidence to enable it to deal with the point in issue, was by no means obliged to adopt of its own motion any further measure for the taking of evidence. It would not have been obliged to adopt such a measure even if at the end of its assessment it had concluded that none of that evidence was of any probative value. It would in those circumstances have been entitled to rule in accordance with the rules governing the burden of proof.
423 Where an appellant submits that the Court of First Instance did not respond to a plea, its submission cannot be challenged, in terms of the admissibility of the ground of appeal, on the basis that it does not cite any passage or part of the contested judgment as the specific object of its complaint since, by definition, it is a failure to respond that is being alleged. For the same reason, the submission cannot be challenged on the ground that it simply repeats or reproduces the plea raised at first instance.
463 The essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration (Case C-291/98 P Sarrió v Commission [2000] ECR I-9991, paragraph 73).
464 Contrary to what the appellants claim, either expressly or in essence, that requirement does not oblige the Commission to indicate in its decision the figures relating to the method of calculating the fines; in any event, the Commission cannot, by mechanical recourse to arithmetical formulae alone, divest itself of its own power of assessment (Sarrió, cited above, paragraphs 76 and 80).
465 In paragraph 1173 of the contested judgment, the Court of First Instance rightly observed that, in the case of a decision imposing fines on several undertakings, the scope of the duty to state reasons must be assessed inter alia in the light of the fact that the gravity of the infringement depends on numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up (SPO, cited above, paragraph 54).
491 In that connection, it must be observed that the Court of First Instance rightly held, in paragraph 741 of the contested judgment, that it is well established that, for the purposes of applying Article 85(1) of the Treaty, there is no need to take account of the actual effects of an agreement once it appears that its aim is to restrict, prevent or distort competition (see, in particular, Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299, at 342).
497 It must be observed that, in accordance with established case-law, it follows from Article 168a of the EC Treaty (now Article 225 EC), the first paragraph of Article 51 of the EC Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, the order in Case C-31/95 P Del Plato v Commission [1996] ECR I-1443, paragraphs 18 and 19, and the judgment in Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34), failing which the appeal or plea concerned is inadmissible.
508 It that regard, it has already been pointed out in paragraph 491 of the present judgment that, for the purposes of applying Article 85(1) of the Treaty, it is sufficient that the aim of an agreement should be to restrict, prevent or distort competition, irrespective of the actual effects of that agreement.
509 Consequently, in the case of agreements reached at meetings of competing undertakings:
- that provision is infringed where those meetings have such an aim and are thus intended to organise artificially the operation of the market;
- the liability of a particular undertaking in respect of the infringement is properly established where it participated in those meetings with knowledge of their aim, even if it did not proceed to implement any of the measures agreed at those meetings.
510 The greater or lesser degree of regular participation by the undertaking in the meetings and of completeness of its implementation of the measures agreed is relevant not to the establishment of its liability but rather to the extent of that liability and thus to the severity of the penalty.
592 In that regard, it must be stated that, in paragraph 1146 of the contested judgment, the Court of First Instance correctly pointed out that the purpose of the reference to turnover in Article 15(2) of Regulation No 17 is to determine the maximum amount of the fine which may be imposed on an undertaking.
593 That maximum of `10% of the turnover in the preceding business year' relates to the business year preceding the date of the decision (Sarrió, paragraph 85).
604 However, without there being any need to consider the merits of that premiss, it is sufficient to state that, in holding in paragraph 1222 of the contested judgment that the risks of fluctuating exchange rates remain inevitable, the Court of First Instance was merely pointing out, quite correctly, that currency fluctuations are an element of chance which may produce advantages and disadvantages which undertakings realising part of their sales on export markets have to deal with regularly in the course of their business activities and the very existence of which is not such as to render inappropriate the amount of a fine lawfully fixed (Case C-282/98 P Enso Española v Commission [2000] ECR I-9817, paragraph 59, and Sarrió, paragraph 89).
611 It should be observed that the assessment of the proportionality of the fine imposed having regard to the gravity and duration of the infringement, which are the criteria referred to in Article 15(2) of Regulation No 17, falls within the unlimited jurisdiction to review decisions conferred on the Court of First Instance under Article 17 of that regulation.
612 In holding, in paragraph 1216 of the contested judgment, that Montedison had not in any way shown how the fine imposed was disproportionate having regard to the gravity and duration of the infringement, the Court of First Instance did not literally impose any requirement of proof on the appellant.
613 By way of that negative formulation, it merely gave expression to the conclusion which it had reached in the exercise of its unfettered discretion following its assessment of the gravity and duration of the matters established and having regard to Montedison's arguments disputing those facts or casting a different light on them, which it had previously rejected.
614 It is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of Community law (Sarrió, paragraph 96).
617 It should be observed in that regard that even though, in the context of an appeal, it is not open to the Court of Justice to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines (see paragraph 614 of this judgment), the exercise of that jurisdiction in respect of the determination of those fines cannot result in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 85(1) of the Treaty (Sarrió, paragraph 97).
618 However, it must be borne in mind that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal, failing which the appeal or plea concerned is inadmissible (see paragraph 497 of this judgment).
692 In that regard, it is sufficient to point out that the provisions relied on by Montedison are concerned only with the scope of the review carried out by the Community judicature in respect of Commission decisions on competition matters. More than a simple review of legality, which merely permits dismissal of the action for annulment or annulment of the contested measure, the unlimited jurisdiction conferred on the Community judicature authorises it to vary the contested measure, even without annulling it, by taking into account all of the factual circumstances, so as to amend, for example, the amount of the fine.