Solvay SA v European Commission.
Date: 2011-10-25
48. By the first part of the fifth ground of appeal, Solvay claims that the General Court did not address Solvay’s argument that it should have been heard before the contested decision was adopted, notwithstanding Limburgse Vinyl Maatschappij and Others  v Commission , since the administrative proceeding had been affected by irregularities, stemming from the lack of access to the file at a stage prior to the decision’s adoption, which affected the validity of the preparatory measures for the decision, and since those irregularities had been established by the General Court before the contested decision was adopted, in Case T‑30/91 Solvay  v Commission .
51. Contrary to the arguments put forward by the Commission, by the ground of appeal relating to infringement of the right of access to the file, Solvay is not criticising the findings of fact made at first instance, but the rules applied by the General Court as regards the standard of proof relating to the usefulness of the documents, some of which have been mislaid. The question whether the General Court applied the correct legal standard when determining the usefulness of those documents for Solvay’s defence is a question of law, which is amenable to review by the Court of Justice on appeal (see, to that effect, Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel  v Commission  [2007] ECR I‑729, paragraph 40, and Case C‑413/06 P Bertelsmann and Sony Corporation of America  v Impala  [2008] ECR I‑4951, paragraph 117).
52. The rights of the defence are fundamental rights forming an integral part of the general principles of law whose observance the Court ensures (Joined Cases C‑204/00 P, C‑205/00 P, C‑211/00 P, C‑213/00 P, C‑217/00 P and C‑219/00 P Aalborg Portland and Others  v Commission  [2004] ECR I‑123, paragraph 64).
53. Observance of the rights of the defence in a proceeding before the Commission, the aim of which is to impose a fine on an undertaking for infringement of the competition rules requires that the undertaking under investigation must have been afforded the opportunity to make known its views on the truth and relevance of the facts alleged and on the documents used by the Commission to support its claim that there has been an infringement of the Treaty ( Aalborg Portland and Others  v Commission , paragraph 66). Those rights are referred to in Article 41(2)(a) and (b) of the Charter of Fundamental Rights of the European Union.
54. As the General Court rightly pointed out in paragraph 405 of the judgment under appeal, the right of access to the file means that the Commission must provide the undertaking concerned with the opportunity to examine all the documents in the investigation that might be relevant for its defence. Those documents comprise both inculpatory and exculpatory evidence, with the exception of business secrets of other undertakings, internal documents of the Commission and other confidential information ( Limburgse Vinyl Maatschappij and Others  v Commission , paragraph 315, and Aalborg Portland and Others  v Commission , paragraph 68).
55. Infringement of 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 ( Limburgse Vinyl Maatschappij and Others  v Commission , paragraph 317).
56. In such a case, the infringement is not remedied by the mere fact that access was made possible during the judicial proceedings ( Limburgse Vinyl Maatschappij and Others  v Commission , paragraph 318). As the examination undertaken by the General Court is limited to review of the pleas in law put forward, it has neither the object nor the effect of replacing a full investigation of the case in the context of an administrative procedure. Moreover, belated disclosure of documents in the file does not return the undertaking which has brought the action against the Commission decision to the situation in which it would have been if it had been able to rely on those documents in presenting its written and oral observations to the Commission (see Aalborg Portland and Others  v Commission , paragraph 103 and the case-law cited).
57. Where access to the file, and particularly to exculpatory documents, is granted at the stage of the judicial proceedings, the undertaking concerned has to show, not 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 (Case C‑199/99 P Corus UK  v Commission  [2003] ECR I‑11177, paragraph 128; Limburgse Vinyl Maatschappij and Others  v Commission , paragraph 318; and Aalborg Portland and Others  v Commission , paragraph 131).
62. In that regard, it should be borne in mind that, according to the Commission, the missing sub-files probably contained the replies to the requests for information made under Article 11 of Regulation No 17. Accordingly, it cannot be excluded that Solvay could have found in the sub-files evidence originating from other undertakings which would have enabled it to offer an interpretation of the facts different from the interpretation adopted by the Commission, which could have been of use for its defence.
67. In paragraph 184 of the judgment under appeal, the General Court rightly pointed out that where, following the annulment of a decision penalising undertakings which have infringed Article 81(1) EC because of a procedural defect concerning exclusively the procedures governing its final adoption by the College of Commissioners, the Commission is to adopt a fresh decision, with substantially the same content and based on the same objections, it is not required to conduct a new hearing of the undertakings concerned (see, to that effect, Limburgse Vinyl Maatschappij and Others  v Commission , paragraphs 83 to 111).