Hüls AG v Commission of the European Communities.
Date: 1999-07-08
64 In that regard, it should be borne in mind that, pursuant to Article 225 EC and the first paragraph of Article 51 of the EC Statute of the Court of Justice, an appeal may rely only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts. The appraisal by the Court of First Instance of the evidence put before it does not constitute, save where the clear sense of that evidence has been distorted, a point of law which is subject, as such, to review by the Court of Justice (see, inter alia, Case C-53/92 P Hilti v Commission [1994] ECR I-667, paragraphs 10 and 42).
65 It follows that, inasmuch as they relate to the assessment by the Court of First Instance of the evidence adduced, the appellant's complaints cannot be examined in an appeal. However, it is incumbent on the Court to verify whether, in making that assessment, the Court of First Instance committed an error of law by infringing the general principles of law, such as the presumption of innocence and the applicable rules of evidence, such as those concerning the burden of proof (see, to that effect, Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 66; Case C-19/95 P San Marco v Commission [1996] ECR I-4435, paragraph 40; C-7/95 P Deere v Commission [1998] ECR I-3111, paragraph 22; Case C-8/95 P New Holland Ford v Commission [1998] ECR I-3175, paragraph 26; and Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 24).
66 Pleas in law alleging that the grounds of the contested judgment are inadequate or contradictory are also admissible in an appeal (see Case C-283/90 P Vidrányi v Commission [1991] ECR I-4339, paragraph 29, and Baustahlgewebe v Commission, cited above, paragraph 25).
91 On the one hand, measures of inquiry would necessarily lead to the Court ruling on questions of fact and would change the subject-matter of the proceedings commenced before the Court of First Instance, in breach of Article 113(2) of the Rules of Procedure of the Court of Justice.
124 As the Court of Justice held in its judgment in Baustahlgewebe v Commission, cited above, paragraph 93, a party is entitled to ask the Court of First Instance, as a measure of organisation of procedure, to order the opposite party to produce documents which are in its possession.
127 As regards the request for measures of inquiry, the case-law of the Court (see, in particular, Case 77/70 Prelle v Commission [1971] ECR 561, paragraph 7, and Case C-415/93 Bosman [1995] ECR I-4921, paragraph 53) makes it clear that, if made after the oral procedure is closed, such a request can be admitted only if it relates to facts which may have a decisive influence on the outcome of the case and which the party concerned could not put forward before the close of the oral procedure.
132 Secondly, even when submitting its application, Hüls was in a position to provide the Court of First Instance with at least minimum evidence of the expediency of measures of organisation of procedure or inquiry for the purposes of the proceedings in order to prove that the Polypropylene Decision had been adopted in breach of the language rules applicable or altered after its adoption by the College of Members of the Commission, or that the originals were lacking, as certain applicants in the PVC cases did (see, to that effect, Baustahlgewebe v Commission, cited above, paragraphs 93 and 94).
149 The Court observes first of all that the presumption of innocence resulting in particular from Article 6(2) of the ECHR is one of the fundamental rights which, according to the Court's settled case-law, reaffirmed in the preamble to the Single European Act and in Article F(2) of the Treaty on European Union, are protected in the Community legal order (see, to that effect, Bosman, cited above, paragraph 79).
150 It must also be accepted that, given the nature of the infringements in question and the nature and degree of severity of the ensuing penalties, the principle of the presumption of innocence applies to the procedures relating to infringements of the competition rules applicable to undertakings that may result in the imposition of fines or periodic penalty payments (see, to that effect, in particular the judgments of the European Court of Human Rights of 21 February 1984, ztürk, Series A No 73, and of 25 August 1987 Lutz, Series A No 123-A).
155 However, since the Commission was able to establish that Hüls had participated in meetings between undertakings of a manifestly anti-competitive nature, it was for Hüls to put forward evidence to establish that its participation in those meetings was without any anti-competitive intention by demonstrating that it had indicated to its competitors that it was participating in those meetings in a spirit that was different from theirs. The Court of First Instance did not therefore improperly reverse the burden of proof in paragraph 126 of the contested judgment.
157 At paragraph 119 of the contested judgment, the Court of First Instance considered that the Commission was entitled, in the alternative, to describe as concerted practices, within the meaning of Article 81(1) EC, the regular meetings of polypropylene producers in which the applicant participated from the end of 1978 or the beginning of 1979 until September 1983.
158 The Court of Justice has consistently held that a concerted practice refers to a form of coordination between undertakings which, without having been taken to a stage where an agreement properly so-called has been concluded, knowingly substitutes for the risks of competition practical cooperation between them (see Joined Cases 40/73 to 48/73, 50/73, 54/73, 55/73, 56/73, 111/73, 113/73 and 114/73 Suiker Unie and Others v Commission [1975] ECR 1663, paragraph 26, and Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I-1307, paragraph 63).
159 The criteria of coordination and cooperation must be understood in the light of the concept inherent in the provisions of the Treaty relating to competition, according to which each economic operator must determine independently the policy which he intends to adopt on the market (see Suiker Unie and Others v Commission, cited above, paragraph 173; Case 172/89 Züchner [1981] ECR 2021, paragraph 13; Ahlström Osakeyhtiö and Others v Commission, cited above, paragraph 63, and John Deere v Commission, cited above, paragraph 86).
165 Next, although the very concept of a concerted practice presupposes conduct by the participating undertakings on the market, it does not necessarily mean that that conduct should produce the specific effect of restricting, preventing or distorting competition.