Aalborg Portland A/S (C-204/00 P), Irish Cement Ltd (C-205/00 P), Ciments français SA (C-211/00 P), Italcementi - Fabbriche Riunite Cemento SpA (C-213/00 P), Buzzi Unicem SpA (C-217/00 P) and Cementir - Cementerie del Tirreno SpA (C-219/00 P) v Commission of the European Communities.
Date: 2004-01-07
48. An appeal may therefore be based only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts. The Court of First Instance has exclusive jurisdiction, first, to establish the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts (see,  inter alia , Case C-284/98 P  Parliament  v  Bieber  [2000] ECR I-1527, paragraph 31.
49. It follows that the appraisal of the facts by the Court of First Instance 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,  inter alia , Joined Cases C-280/99 P to C-282/99 P  Moccia Irme and Others  v  Commission  [2001] ECR I-4717, paragraph 78).
50. Article 225 EC, Article 51, first paragraph, of the EC Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice provide, in particular, that where the appellant alleges distortion of the evidence by the Court of First Instance, he must indicate precisely the evidence alleged to have been distorted by that Court and show the errors of appraisal which, in his view, led to that distortion.
51. The requirements resulting from those provisions are not satisfied by an appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the judgment of the Court of First Instance, simply repeats or reproduces verbatim the pleas in law and arguments already put forward before that Court, including those which were based on facts expressly rejected by that Court. Such an appeal amounts in reality to no more than a request for  re-examination of the application submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake (see, inter alia, the order in Case C-317/97 P  Smanor and Others  v  Commission  [1998] ECR I-4269, paragraph 21, and the judgment in Case C-352/98 P  Bergaderm and Goupil  v  Commission  [2000] ECR I-5291, paragraph 35).
55. Since the prohibition on participating in anti-competitive agreements and the penalties which offenders may incur are well known, it is normal for the activities which those practices and those agreements entail to take place in a clandestine fashion, for meetings to be held in secret, most frequently in a non-member country, and for the associated documentation to be reduced to a minimum.
56. Even if the Commission discovers evidence explicitly showing unlawful contact between traders, such as the minutes of a meeting, it will normally be only fragmentary and sparse, so that it is often necessary to reconstitute certain details by deduction.
57. In most cases, the existence of an anti-competitive practice or agreement must be inferred from a number of coincidences and indicia which, taken together, may, in the absence of another plausible explanation, constitute evidence of an infringement of the competition rules.
59. It is appropriate, in that context, to observe that Article 85 of the Treaty refers to the activities of   " undertakings" .  For that provision to apply, a change in the legal form and name of an undertaking does not necessarily have the effect of creating a new undertaking free of liability for the anti-competitive behaviour of its predecessor when, from an economic point of view, the two are identical (see, to that effect, Joined Cases 29/83 and 30/83  CRAM and Rheinzink  v  Commission  [1984] ECR 1679, paragraph 9).
60. However, the statement of objections must specify unequivocally the legal person on whom fines may be imposed and be addressed to that person (Case C-176/99 P  ARBED  v  Commission  [2003] ECR I-0000, paragraph 21).
61. In order to ensure the effectiveness of the investigative power conferred on it by Article 11(1) and (5) of Regulation No 17, the Commission is entitled to compel an undertaking, if necessary by adopting a decision, to provide all necessary information concerning such facts as may be known to it and to disclose to it, if necessary, such documents relating thereto as are in that undertaking ' s possession, even if the latter may be used to establish, against it or another undertaking, the existence of anti-competitive conduct.
62. Regulation No 17 places the undertaking being investigated under a duty of active cooperation, which means that it must be prepared to make any information relating to the object of the inquiry available to the Commission (Case 374/87  Orkem  v  Commission  [1989] ECR 3283, paragraph 27).
63. In carrying out its task, the Commission must however ensure that the rights of the defence are not impaired during preliminary inquiry procedures, which may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings for which they may be liable (Joined Cases 46/87 and 227/88  Hoechst  v  Commission  [1989] ECR 2859, paragraph 15).
64. The rights of the defence are fundamental rights forming an integral part of the general principles of law, whose observance the Court ensures (see, to that effect, Case C-7/98  Krombach  [2000] ECR I-1935, paragraphs 25 and 26), drawing inspiration for that purpose from the constitutional traditions common to the Member States and from the guidelines supplied by international treaties for the protection of human rights on which the Member States have collaborated or to which they are signatories, such as the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 ( " the ECHR" ) (see Case C-274/99 P  Connolly  v  Commission  [2001] ECR I-1611, paragraphs 37 and 38).
65. Thus, when requesting information, the Commission may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent upon the Commission to prove (see  Orkem  v  Commission , cited above, paragraph 35).
66. Equally, respect for the rights of the defence requires that the undertaking concerned must have been afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts and circumstances alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty (see Joined Cases 100/80 to 103/80  Musique Diffusion française and Others  v  Commission  [1983] ECR 1825, paragraph 10, and Case C-310/93 P  BPB Industries and British Gypsum  v  Commission  [1995] ECR I-865, paragraph 21).
67. In that sense, Regulation No 17 provides that the parties are to be sent a statement of objections which must set forth clearly all the essential facts upon which the Commission is relying at that stage of the procedure. However, that may be done summarily and the decision is not necessarily required to be a replica of the Commission ' s statement of objections ( Musique Diffusion française and Others  v  Commission , cited above, paragraph 14), since the statement of objections is a preparatory document containing assessments of fact and of law which are purely provisional in nature (see, to that effect, Joined Cases 142/84 and 156/84  BAT and Reynolds  v  Commission  [1987] ECR 4487, paragraph 70).  For that reason, the Commission may, and even must, take into account the factors emerging from the administrative procedure in order, inter alia, to abandon such objections as have been shown to be unfounded ( Musique Diffusion française and Others  v  Commission , cited above, paragraph 14).
The right of access to the file
68. A corollary of the principle of respect for the rights of the defence, the right of access to the file means that the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant for its defence (see, to that effect, Case T-30/91  Solvay  v  Commission  [1995] ECR II-1775, paragraph 81, and Case C-199/99 P  Corus UK  v  Commission  [2003] ECR I-0000, paragraphs 125 to 128).  Those documents include both incriminating evidence and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved (see Case 85/76  Hoffmann-La Roche  v  Commission  [1979] ECR 461, paragraphs 9 and 11; Case C-51/92 P  Hercules Chemicals  v  Commission  [1999] ECR I-4235, paragraph 75; and Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P  Limburgse Vinyl Maatschappij and Others  v  Commission  [2002] ECR I-8375, paragraph 315).
71. The failure to communicate a document constitutes a breach of the rights of the defence only if the undertaking concerned shows, first, that the Commission relied on that document to support its objection concerning the existence of an infringement (see, to that effect, Case 322/81  Michelin  v  Commission  [1983] ECR 3461, paragraphs 7 and 9) and, second, that the objection could be proved only by reference to that document (see Case 107/82  AEG  v  Commission  [1983] ECR 3151, paragraphs 24 to 30, and  Solvay  v  Commission , cited above, paragraph 58).
72. If there were other documentary evidence of which the parties were aware during the administrative procedure that specifically supported the Commission ' s findings, the fact that an incriminating document not communicated to the person concerned was inadmissible as evidence would not affect the validity of the objections upheld in the contested decision (see, to that effect,  Musique Diffusion française and Others  v  Commission , cited above, paragraph 30, and  Solvay  v  Commission , cited above, paragraph 58).
73. It is thus for the undertaking concerned to show that the result at which the Commission arrived in its decision would have been different if a document which was not communicated to that undertaking and on which the Commission relied to make a finding of infringement against it had to be disallowed as evidence.
74. On the other hand, where an exculpatory document has not been communicated, the undertaking concerned must only establish that its non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the decision of the Commission (see  Solvay  v  Commission , paragraph 68).
75. It is sufficient for the undertaking to show that it would have been able to use the exculpatory documents in its defence (see  Hercules Chemicals  v  Commission . paragraph 81, and  Limburgse Vinyl Maatschappij and Others  v  Commission , paragraph 318), in the sense that, had it been able to rely on them during the administrative procedure, it would have been able to put forward evidence which did not agree with the findings made by the Commission at that stage and would therefore have been able to have some influence on the Commission ' s assessment in any decision it adopted, at least as regards the gravity and duration of the conduct of which it was accused and, accordingly, the level of the fine (see, to that effect,  Solvay  v  Commission , paragraph 98).
76. The possibility that a document which was not disclosed might have influenced the course of the proceedings and the content of the Commission ' s decision can be established only if a provisional examination of certain evidence shows that the documents not disclosed might ─ in the light of that evidence ─ have had a significance which ought not to have been disregarded (see  Solvay  v  Commission , paragraph 68).
78. As the Council very recently stated in the fifth recital of Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1), it should be for the party or the authority alleging an infringement of the competition rules to prove the existence thereof and it should be for the undertaking or association of undertakings invoking the benefit of a defence against a finding of an infringement to demonstrate that the conditions for applying such defence are satisfied, so that the authority will then have to resort to other evidence.
79. Although according to those principles the legal burden of proof is borne either by the Commission or by the undertaking or association concerned, the factual evidence on which a party relies may be of such a kind as to require the other party to provide an explanation or justification, failing which it is permissible to conclude that the burden of proof has been discharged.
81. According to settled case-law, it is sufficient for the Commission to show that the undertaking concerned participated in meetings at which anti-competitive agreements were concluded, without manifestly opposing them, to prove to the requisite standard that the undertaking participated in the cartel.  Where participation in such meetings has been established, it is for that undertaking 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 (see Case C-199/92 P  Hüls  v  Commission  [1999] ECR I-4287, paragraph 155, and Case C-49/92 P  Commission  v  Anic  [1999] ECR I-4125, paragraph 96).
82. The reason underlying that principle of law is that, having participated in the meeting without publicly distancing itself from what was discussed, the undertaking has given the other participants to believe that it subscribed to what was decided there and would comply with it.
83. The principles established in the case-law cited at paragraph 81 of this judgment also apply to participation in the implementation of a single agreement.  In order to establish that an undertaking has participated in such an agreement, the Commission must show that the undertaking intended to contribute by its own conduct to the common objectives pursued by all the participants and that it was aware of the actual conduct planned or put into effect by other undertakings in pursuit of the same objectives or that it could reasonably have foreseen it and that it was prepared to take the risk ( Commission  v  Anic , paragraph 87).
84. In that regard, a party which tacitly approves of an unlawful initiative, without publicly distancing itself from its content or reporting it to the administrative authorities, effectively encourages the continuation of the infringement and compromises its discovery.  That complicity constitutes a passive mode of participation in the infringement which is therefore capable of rendering the undertaking liable in the context of a single agreement.
85. Nor is the fact that an undertaking does not act on the outcome of a meeting having an anti-competitive purpose such as to relieve it of responsibility for the fact of its participation in a cartel, unless it has publicly distanced itself from what was agreed in the meeting (see Case C-291/98 P  Sarrió  v  Commission  [2000] ECR I-9991, paragraph 50).
86. Neither is the fact that an undertaking has not taken part in all aspects of an anti-competitive scheme or that it played only a minor role in the aspects in which it did participate material to the establishment of the existence of an infringement on its part.  Those factors must be taken into consideration only when the gravity of the infringement is assessed and if and when it comes to determining the fine (see, to that effect,  Commission  v  Anic , paragraph 90).
89. Article 15(2) of Regulation No 17 lays down the conditions which must be fulfilled to enable the Commission to impose fines for anti-competitive conduct.  The infringement must thus have been committed intentionally or negligently.  Furthermore, the amount of the fine is set according to the gravity of the infringement and, where appropriate, to its duration (see Case C-219/95 P  Ferriere Nord  v  Commission  [1997] ECR I-4411, paragraph 32).
90. As regards the gravity of the infringement, the Court has held that it has to be determined by reference to criteria such as the particular circumstances of the case, its context and the dissuasive effect of the fines (see  Ferriere Nord  v  Commission , paragraph 33).
91. Objective factors such as the content and duration of the anti-competitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order must be taken into account.  The analysis must also take into consideration the relative importance and market share of the undertakings responsible and also any repeated infringements.
92. Where an infringement has been committed by a number of persons, the relative gravity of the participation of each of them will be examined (see 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, paragraphs 622 and 623).
VI ─ Pleas in law
A ─ Pleas alleging procedural defects and breach of the rights of the defence
1. Pleas concerning the role of the Court of First Instance in the organisation of the procedure
Arguments of the parties
103. As that examination is limited to a judicial review of the pleas in law, it has neither the object nor the effect of replacing a full investigation of the case in the context of an administrative procedure (see  Solvay  v  Commission , paragraphs 98 and 103).  It is common ground that belated disclosure of documents in the file does not put the undertaking which has brought the action against the Commission decision 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 (see  Hercules Chemicals  v  Commission , paragraph 79).
104. Nor can it be denied that an infringement of the rights of the defence at the stage of the administrative procedure cannot be 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 (see  Hercules Chemicals  v  Commission , paragraph 78, and  Limburgse Vinyl Maatschappij and Others  v  Commission , paragraph 318).
125. The question whether the Court of First Instance applied correct criteria in order to determine whether the Commission ' s exclusion of a specific document adversely affected an undertaking ' s rights of the defence is a question of law amenable to review by the Court of Justice.  The same applies to the question whether a document must be qualified as an   " exculpatory document"  capable of being of use in an undertaking ' s defence (see, to that effect,  Corus UK  v  Commission , paragraph 131).
126. As regards, first, the criterion of an objective link, it cannot be for the Commission alone, who notifies any objections and adopts the decision imposing a penalty, to determine the documents of use in the defence of the undertaking concerned (see  Solvay  v  Commission , paragraphs 81 and 83).  However, the Commission is allowed to preclude from the administrative procedure evidence which has no relation to the allegations of fact and of law in the SO and which therefore has no relevance to the investigation.  An applicant cannot properly put forward as a ground of annulment the fact that irrelevant documents were not communicated to it.
131. The Court of First Instance did not err in law in holding, at paragraphs 241 and 247 of the judgment under appeal, that it must assess whether, in the light of the evidence adduced by the Commission in support of the objections formulated in the Cement Decision, disclosure of a document would have had even a small chance of altering the outcome of the administrative procedure if the undertaking concerned had been able to rely on it during that procedure.  It merely stated the condition that the undertaking must show that a document could have been useful in its defence.
192. As regards, last, the need to afford Italcementi the opportunity to express its views on the dropping of the national objections, the Court of Justice has held that communication to the parties concerned of further objections is necessary only if the result of the investigations leads the Commission to take new facts into account against the undertakings or to alter materially the evidence for the contested infringements (see Case 53/69  Sandoz  v  Commission  [1972] ECR 845, paragraph 14).
200. As the procedure before the Commission is purely an administrative procedure, the Commission is not required to afford the undertaking concerned the opportunity to cross-examine a particular witness and to analyse his statements at the investigation stage.  As for the ECHR, it does not lay down the rules on evidence as such (see the  Mantovanelli  v  France  judgment, § 34).
258. An infringement of Article 85(1) of the Treaty may result not only from an isolated act but also from a series of acts or from continuous conduct.  That interpretation cannot be challenged on the ground that one or several elements of that series of acts or continuous conduct could also constitute in themselves and taken in isolation an infringement of that provision (see, to that effect,  Commission  v  Anic , paragraph 81).  When the different actions form part of an   " overall plan" , because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole.
261. Likewise, the distinction that Buzzi Unicem draws between a   " single agreement"  and a   " single criminal design"  is of no relevance.  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 within the common market (see Case C-277/87  Sandoz prodotti farmaceutici  v  Commission  [1990] ECR I-45).
279. As regards the exchanges of price information, Aalborg, Buzzi Unicem and Cementir are essentially reproducing the same arguments as they had already raised in vain before the Court of First Instance.  Examination by the Community judicature of the complex economic assessments made by the Commission must necessarily be confined to verifying whether the rules on procedure and on the statement of reasons have been complied with, whether the facts have been accurately stated and whether there has been any manifest error of appraisal or misuse of powers (see, inter alia, Case 42/84  Remia and Others  v  Commission  [1985] ECR 2545, paragraph 34, and  BAT and Reynolds  v  Commission , paragraph 62).
281. As the Court of First Instance stated at paragraphs 1510, 1511 and 1634 of the judgment under appeal, even though the information thus exchanged was in the public domain or related to historical and purely statistical prices, its exchange infringes Article 85(1) of the Treaty where it underpins another anti-competitive arrangement.  That interpretation is based on the consideration that the circulation of price information limited to the members of an anti-competitive cartel has the effect of increasing transparency on a market where competition is already much reduced and of facilitating control of compliance with the cartel by its members.
285. The argument relating to the alleged unequal treatment of Unicem and AITEC was rejected by the Court of First Instance at paragraphs 1701 to 1703 of the judgment under appeal.  Relying on 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 146, the Court of First Instance stated that the fact that AITEC was not charged with the infringement in question could not absolve Unicem from its liability.  There was no breach of the rights of the defence, since Unicem was not prevented from obtaining access to documents which might have supported its defence during the course of the administrative procedure.
335. Furthermore, the fact that commercial reasons led Cementir to participate in the anti-competitive agreement is irrelevant when the agreement had the effect of restricting competition.  Since its participation in the agreement is demonstrated, there is no need to examine whether it had any interest in participating in it.
338. As regards observance of the principle  ne bis in idem , the application of that principle is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected.  Under that principle, therefore, the same person cannot be sanctioned more than once for a single unlawful course of conduct designed to protect the same legal asset.
339. The Court of First Instance merely pointed out the difference in object between, on the one hand, the supply contracts and the cooperation agreements signed between Calcestruzzi and the three Italian cement producers and, on the other hand, the part of the agreement between those cement producers which sought to prevent imports of cement from Greece by Calcestruzzi.  Participation in the Cembureau Agreement on non-transhipment to home markets constitutes the infringement sanctioned by the Cement Decision and the Court of First Instance considered that the Cement Decision had a different object from that pursued by the decision of the Italian competition authority in respect of the supply contracts and the cooperation agreements between Calcestruzzi and the Italian cement producers.
340. As there was no identity in the facts, there was no breach of the principle  ne bis in idem .
355. More specifically, the Court must determine whether the fact that Aktieselskabet Aalborg Portland-Cement Fabrik still exists wholly and necessarily precludes the Commission from proceeding against Aalborg as being, from an economic and organisational point of view, the author of the infringement.
356. It is not disputed that the economic activities of Aktieselskabet Aalborg Portland-Cement Fabrik in the cement sector were transferred to Aalborg in 1990.
357. When the Court of First Instance concluded, at paragraph 1335 of the judgment under appeal, that Aalborg and Aktieselskabet Aalborg Portland-Cement Fabrik constituted the same economic entity for the purposes of applying Article 85(1) of the Treaty, that finding must be taken to mean that the undertaking run by Aalborg from 1990 is the same as that previously run by Aktieselskabet Aalborg Portland-Cement Fabrik (see, in that regard, paragraph 59 of this judgment).
358. The fact that Aktieselskabet Aalborg Portland-Cement Fabrik still exists as a legal entity does not invalidate that finding and did not therefore in itself constitute a ground for annulling the Cement Decision in respect of Aalborg.
372. Furthermore, the obligation to state reasons does not require the Court of First Instance to provide an account that follows exhaustively and one by one all the reasoning articulated by the parties to the case. The reasoning may therefore be implicit on condition that it enables the persons concerned to know why the measures in question were taken and provides the competent court with sufficient material for it to exercise its power of review (see, to that effect, Case C-120/99  Italy  v  Council  [2001] ECR I-7997, paragraph 28).