Corus UK Ltd v Commission of the European Communities.
Date: 2003-10-02
19.  The principle of respect for the rights of the defence is a fundamental principle of Community law. That principle is infringed where a judicial decision is based on facts and documents which the parties themselves, or one of them, have not had an opportunity to examine and on which they have therefore been unable to comment (Joined Cases 42/59 and 49/59   SNUPAT   v   High Authority   [1961] ECR 53, at p. 84).
21.  In any event, the documents made available on 14 January 1998 following the order in   NMH Stahlwerke  , cited above, were produced sufficiently in advance of the hearing to allow the appellant to examine them and adopt a position on their content.
32.  According to the minutes of the hearing which was held before the Court of First Instance on 23 March 1998, the President of the Second Chamber, Extended Composition, announced that that Chamber intended to hear a number of witnesses. The minutes state that the parties did not submit observations in that regard. The witnesses were examined in an open hearing in the presence of all of the parties.
35.  It follows from these findings that the second limb of the first ground of appeal is unfounded.
The third limb of the first ground of appeal
41.  The general principle of Community law that everyone is entitled to a fair hearing, and in particular the right to legal process within a reasonable period, is applicable in the context of proceedings brought against a Commission decision imposing fines on an undertaking for infringement of competition law (Baustahlgewebe  , cited above, paragraph 21, and Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P, C-251/99 P, C-252/99 P and C-254/99 P   Limburgse Vinyl Maatschappij and Others   v   Commission   [2002] ECR I-8375, paragraph 179).
42.  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, and   Limburgse Vinyl Maatschappij and Others  , cited above, paragraph 187).
43.  The Court has held in that regard that this list of criteria is not exhaustive and that the assessment of the reasonableness of a period 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 (Limburgse Vinyl Maatschappij and Others  , paragraph 188).
65.  First of all, it should be pointed out that, as is clear from Article 32d(1) CS and Article 51 of the ECSC Statute of the Court of Justice, an appeal lies on a point of law only. Therefore, the Court of First Instance has sole jurisdiction to find and appraise the relevant facts and to assess the evidence, except where those facts and that evidence have been distorted (see, to that effect, Case C-136/92 P   Commission   v   Brazzelli Lualdi and Others   [1994] ECR I-1981, paragraphs 49 and 66;   Limburgse Vinyl Maatschappij and Others  , paragraph 194; and Case C-312/00 P   Commission   v   Camar and Tico   [2002] ECR I-11355, paragraph 69).
67.  With respect to the need to request production of the original of the minutes, it is for the Community Court to decide, in the light of the circumstances of the case and in accordance with the provisions of the Rules of Procedure on measures of inquiry, whether it is necessary for a document to be produced. As regards the Court of First Instance, it follows from Article 49 read in conjunction with Article 65(b) of its Rules of Procedure that a request for production of documents is a measure of inquiry which the Court may order at any stage of the proceedings (Case C-286/95 P   Commission   v   ICI   [2000] ECR I-2341, paragraphs 49 and 50).
70.  Given that this copy of the minutes was available to the Court of First Instance, which it accepted as being a certified true copy of the original, it was under no obligation whatsoever to adopt a further measure for taking evidence in order to obtain the original if it formed the view that such a measure was unnecessary to establish the truth (see, to that effect,   Limburgse Vinyl Maatschappij and Others  , paragraph 404).
105.  Third, according to the case-law relating to the tractor market (Case T-34/92   Fiatagri and New Holland Ford   v   Commission   [1994] ECR II-905, Case T-35/92   John Deere   v   Commission   [1994] ECR II-957, Case C-7/95 P   John Deere   v   Commission   [1998] ECR I-3111, and Case C-8/95 P   New Holland Ford   v   Commission   [1998] ECR I-3175), in which the Court of First Instance and the Court of Justice first examined an agreement on the exchange of information in the context of the EC Treaty and the general findings of which can be applied to the ECSC Treaty, such an agreement is incompatible with the rules on competition if it reduces or removes the degree of uncertainty as to the operation of the market in question with the result that competition between undertakings is restricted (see, in particular, Case C-7/95 P   John Deere  , cited above, paragraph 90).
106.  The criteria of coordination and cooperation necessary for determining the existence of a concerted practice, far from requiring an actual   "plan"   to have been worked out, are to be understood in the light of the concept inherent in the provisions of the EC and ECSC Treaties on competition, according to which each trader must determine independently the policy which he intends to adopt on the common market and the conditions which he intends to offer to his customers (see Case C-7/95 P   John Deere  , paragraph 86, and the case-law cited therein).
107.  While it is true that this requirement of independence does not deprive traders of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, however, strictly preclude any direct or indirect contact between such traders, the object or effect of which is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings and the volume of the said market (Case C-7/95 P   John Deere  , paragraph 87, and the case-law cited therein).
125.  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 (Case C-51/92 P   Hercules Chemicals   v   Commission   [1999] ECR I-4235, paragraph 75 and the case-law cited therein, and   Limburgse Vinyl Maatschappij and Others  , paragraph 315).
126.  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 (Limburgse Vinyl Maatschappij and Others  , paragraph 316).
127.  Failure to respect the right of access to the Commission's file during the procedure prior to adoption of a 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, and   Limburgse Vinyl Maatschappij and Others  , paragraph 317).
128.  In such a case, the infringement committed is not remedied by the mere fact that access to the file was made possible during the judicial proceedings relating to an action by 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 those documents could have been useful for its defence (see, to that effect,   Hercules Chemicals  , paragraphs 78, 80 and 81, and   Limburgse Vinyl Maatschappij and Others  , paragraph 318).
131.  In paragraph 100 of the judgment under appeal, the Court of First Instance held that the internal documents of the Commission clearly contained no exonerating evidence. It does not appear from any of the documents referred to by the appellant in its appeal that the Court of First Instance erred in law or distorted the facts or evidence in concluding that there was no exonerating evidence in those documents. Those documents describe general trends on the steel market but in no way show that the DG III officials were aware of or even encouraged the unlawful practices of which the appellant was accused.
145.  It is settled case-law that the purpose of the obligation to state the reasons on which an individual decision is based is to enable the Court to review the legality of the decision and to provide the person concerned with sufficient information to make it possible to ascertain whether the decision is well founded or whether it is vitiated by a defect which may permit its legality to be contested (Case 32/86   Sisma   v   Commission   [1987] ECR 1645, paragraph 8).
149.  With regard to statements of figures relating to the calculation of fines, it is appropriate to point out that, however useful and desirable such figures may be, they are not essential to compliance with the duty to state reasons for a decision imposing fines; in any event, the Commission cannot, by mechanical recourse to arithmetical formulas alone, divest itself of its own power of assessment (Case C-291/98 P   Sarrió   v   Commission   [2000] ECR I-9991, paragraphs 75 to 77, and   Limburgse Vinyl Maatschappij and Others  , paragraph 464).