Montecatini SpA v Commission of the European Communities.
Date: 1999-07-08
102 In that connection, and 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 and which the party concerned could not put forward before the close of the oral procedure.
106 Secondly, even when submitting its application, Monte 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, Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraphs 93 and 94).
122 It is settled case-law that, for the purposes of applying Article 85(1) of the Treaty, there is no need to take account of the concrete effects of an agreement once it appears that it has as its object the prevention, restriction or distortion of competition (Joined Cases 56/64 and 58/64 Consten and Grundig v Commission [1966] ECR 299, at p. 342; see also, to the same effect, Case C-277/87 Sandoz Prodotti Farmaceutici v Commission [1990] ECR I-45; Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraphs 14 and 15).
127 Thirdly, inasmuch as Monte's criticism is intended to show that, as a result of circumstances beyond the control of the undertakings involved, the agreements and concerted practices which were the subject of the Polypropylene Decision could not have had an anti-competitive object, it must be pointed out that, even if well founded, Monte's claims are not such as to prove that the economic context excluded any possibility of effective competition (see, to that effect, the judgments cited above, Van Landewyck and Others v Commission, paragraph 153, and Stichting Sigarettenindustrie and Others v Commission, paragraphs 24 to 29).
137 On that point, it should be borne in mind that freedom of expression, of peaceful assembly and of association, enshrined inter alia in Articles 10 and 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 (`the ECHR'), constitute fundamental rights which, as the Court of Justice has consistently held and as is reaffirmed in the preamble to the Single European Act and in Article F(2) of the Treaty on European Union (now, after amendment, Article 6(2) EU), are protected in the Community legal order (see, to that effect, Bosman, cited above, paragraph 79).
162 With regard, first to `common intentions', the Court observes that it is clear from the contested judgment that this expression was used to describe conduct which may be characterised in law as an agreement for the purposes of Article 85(1) of the Treaty.  According to the settled case-law of the Court of Justice, cited in paragraph 230 of the contested judgment, such an agreement results from the intention of the undertakings concerned to conduct themselves on the market in a specific way (see, in particular, the judgments cited above, ACF Chemiefarma v Commission, paragraph 112, and Van Landewyck and Others v Commission, paragraph 86).  Accordingly, far from creating new forms of infringement, the Court of First Instance properly used the term `common intentions' to designate conduct that may be characterised as an agreement.
170 The Court finds that this complaint is based on a misunderstanding of the concept of effect on trade between Member States.  According to settled case-law, that condition is satisfied where it is possible to foresee with a sufficient degree of probability on the basis of a set of objective factors of law or of fact that the agreement in question may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States (see to this effect inter alia Case 99/79 Lancôme v Etos [1980] ECR 2511, paragraph 23.
175 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, cited above in paragraph 137, 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.
176 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).
179 Secondly, it must be borne in mind that, where there is a dispute as to the existence of an infringement of the competition rules, it is incumbent on the Commission to prove the infringements found by it and to adduce evidence capable of demonstrating to the requisite legal standard the existence of the circumstances constituting an infringement (Baustahlgewebe v Commission, cited above, paragraph 58).
181 Since, according to the findings of the Court of First Instance, the Commission had been able to establish that Monte had taken part in meetings between undertakings of a manifestly anti-competitive nature, the Court of First Instance was entitled to consider that it was for Monte to provide another explanation of the tenor of those meetings. It follows that the Court of First Instance did not unduly reverse the burden of proof and did not set aside the presumption of innocence.
207 Second, it is true that, where an infringement has been committed by several undertakings, the relative gravity of the participation of each of them must be examined (see, to that effect, Suiker Unie and Others v Commission, cited above, paragraph 622).  However, the Court of First Instance found, at paragraph 361 of the contested judgment, that the Commission had correctly established the role played by Monte in the infringement and that it was entitled to take account of that role in determining the amount of the fine to be imposed on it.  The Court of First Instance cannot therefore be held to have committed an error of law in that respect.