C-51/92

I — Facts and course of the procedure 2. On 13 and 14 October 1983 Commis- before the Court of First Instance sion officials, acting under the powers conferred by Article 14(3) of Council Reg- ulation No 17 of 6 February 1962 3 (here- inafter 'Regulation No 17'), carried out 1. As regards the facts of the dispute and simultaneous investigations in a number the course of the procedure before the of undertakings operating in the polypro- Court of First Instance, the judgment under pylene production sector. Following those appeal relates as follows: Before 1977 the investigations, the Commission addressed West European polypropylene market was requests for information, under Article 11 supplied almost exclusively by ten produ- of Regulation No 17, to the above compa- cers. After 1977 and following the expiry nies, and also to other related undertakings. of the controlling patents held by Monte- From the evidence obtained during the dison, seven new producers appeared with course of those investigations the Commis- sion concluded that, between 1977 and * Original language: Greek. 1 — Case T-7/89 Hercules v Commission [1991] ECR II-1711. 2 — IV/31.149 — Polypropylene, OJ 1986 L 230, p. 1. 3 — OJ, English Special Edition 1959-1962, p. 87.

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1983, certain polypropylene producers, ber 1983... in an agreement and concerted including Hercules, had been acting in practice originating in mid-1977 by which contravention of Article 85 of the Treaty. the producers supplying polypropylene in On 30 April 1984 the Commission decided the territory of the EEC: to open the proceedings provided for in Article 3(1) of Regulation No 17 and sent a written statement of objections to the undertakings in contravention.

(e) shared the market by allocating to each 4. Fourteen of the fifteen companies which producer an annual sales target or "quota" were the addressees of the decision, includ- (1979, 1980 and for at least part of 1983) ing the appellant, brought an action for its or in default of a definitive agreement annulment. At the hearing, which took covering the whole year by requiring pro- place from 10 to 15 December 1990, the ducers to limit their sales in each month by parties presented oral argument and reference to some previous period (1981, answered questions from the Court. After 1982). hearing the Opinion of the Advocate Gen- eral, the Court of First Instance dismissed the action in the judgment of 17 December 1991 cited above.

5. Hercules appealed against that judgment to the Court of Justice. In its appeal it claims that the Court should:

Article 3

— First, adopt the necessary measures in order to establish whether, in adopting the decision, the Commission complied The following fines are hereby imposed on with the relevant rules of procedure; the undertakings named herein in respect of the infringement found in Article 1 :

— Secondly, declare the decision null and void on the ground that the Commis- sion infringed essential procedural requirements;

(v) Hercules Chemicals NV, a fine of 2 750 — Alternatively, quash the judgment and 000 ECU, or 120 569 620 Belgian annul or reduce the fine imposed: francs

8. The formulation of the appellant's other pleas is, moreover, also problematic. The appellant appears to be seeking, first, The company, DSM NV, sought leave to annulment by the Court of the Commis- appeal in these proceedings in support of sion's Polypropylene decision and, in the Hercules. Its request was dismissed as alternative, the setting aside of the judg- inadmissible by order of the Court of ment at first instance. Consequently, those 30 September 1992. pleas are presented in their incorrect order in the appeal pleading. An appeal to the Court of Justice concerns solely a review of the legality of decisions of the Court of First Instance. 5 Only if it considers the appeal well founded may the Court, on quashing the decision of the Court of First Instance, and if the state of the proceedings so permits, itself give final judgment, in accordance with the provisions of Arti- I I— Admissibility of the grounds of appeal cle 54 of the EEC Statute of the Court of Justice. Consequently, on a proper inter- pretation of the appeal pleading, Hercules is seeking first the quashing of the judg- ment at first instance concerning it and, further, should its first plea be successful, 6. As the Commission rightly points out, annulment of the Commission's Polypropy- certain of the pleas which the appellant lene decision. 6 raises are not admissible at the appeal stage. 4 — For a more extensive discussion of this question please refer to paragraphs 26 and 27 of my Opinion delivered on the same date in analogous Case C-199/92 P (Hüls v Commis- sion). 5 — See Articles 49 and 51 of the EEC Statute of the Court of Justice. 6 — In accordance with the, in my opinion, more correct view of the matter which accords generally with traditions in national law, Article 113(1) of the Rules of Procedure of the Court, pursuant to which 'An appeal may seek: — to set aside, in'whole or in part, the decision of the Court of First 7. First, the plea that the appellate court Instance; — the same form of order, in whole or in part, as that sought at first instance and shall not seek a different should adopt measures of inquiry in order form of order', does not mean that the appellant may to establish whether the Commission Deci- separately either seek the setting aside of the decision appealed against or reiterate the form of order sought at sion challenged before the Court of First first instance. It follows from those provisions, in conjunc- tion with Articles 49 to 54 of the EEC Statute of the Court, Instance contains procedural flaws is inad- that the appellant must of necessity direct its appeal against missible. The adoption of measures of that the judgment at first instance, and its pleas going to the substance of the case are conditional upon the setting aside kind exceeds the powers of the appellate of that judgment.

III— Grounds of appeal defence. Such an examination would be necessary only if in the absence of that refusal the administrative proceedings could have led to a different result (judg- ment of the Court of Justice in Case 30/78 Distillers Company Ltd v Commission A — The alleged breach of the rights of the [1980] ECR 2229, paragraph 26, and defence judgment of the Court of First Instance in Case T-7/90 Kobor v Commission [1990] ECR II-721, paragraph 30). That is not so 9. The appellant maintained at first here. Following joinder of the cases for the instance that the rights of the defence purposes of the oral procedure before the conferred on it by Community law were Court, the applicant had access to the infringed by the Commission's refusal to replies of the other undertakings to the inform it, prior to adoption of the Poly- statements of objections and it has not propylene decision, of the replies of the drawn from those replies any exonerating other polypropylene producers, against evidence on which it could have relied whom the Commission's investigation was during the oral procedure. It is safe to directed, to the allegations of infringements conclude that those replies contained no of the competition rules. In particular, exonerating evidence and therefore that the Hercules considers that it was entitled to fact that the applicant was unable to have be apprised of the submissions of the other access to them during the administrative producers in reply to the Commission's procedure could not have affected the result statements of objections according to reached in the Decision.' which those producers had together parti- cipated in activities contrary to Article 85 of the EC Treaty. The failure to inform it of those matters is said by Hercules to con- stitute an infringement of its rights of the 11. The first ground of appeal put forward defence. Nor could that omission be reme- by Hercules is directed precisely against died after adoption of the contested deci- that view of the matter taken by the Court sion by subsequent production of the of First Instance in the abovementioned relevant documents in the proceedings paragraph 56. First, the appellant points before the Court of First Instance. out that its case is not analogous to the Distillers Company and Kobor cases to which the respondent refers. In the Dis- tillers Company case the Court held that, even though the Commission had been 10. In paragraph 56 of the judgment guilty of procedural irregularities, the con- appealed against the Court of First Instance tent of the contested decision would have held as follows on the abovementioned plea been exactly the same because the under- put forward by Hercules: 'As regards more taking concerned, by a procedural error of particularly the Commission's refusal to its own, had deprived itself of the right grant the applicant access to the replies of lawfully to put forward those matters the other producers to the statements of which it might have drawn from those objections, the Court considers that it is not irregularities of the Commission. In Kobor necessary to examine whether this refusal the procedural defect established was held constitutes a breach of the rights of the not to prejudice in the least the applicant's

right to submit her claims and arguments to mission, that solution is in line with the the Commission. The specific difference Court's consistent case-law to the effect between those cases and the present one, that where a procedural flaw would not according to the appellant, is the fact that, have affected, in one way or another, the whereas in the former cases the rights of the content of the decision of a Community defence available to parties to administra- body, it cannot be pleaded before the Court tive proceedings were found not to have in support of a claim for the annulment of been impaired, in the present case, the that decision. The respondent points out undertaking concerned was unable, owing that that is the position adopted in the to the refusal to notify certain relevant Distillers Company and Kobor cases, and information, to be defended in the best that it is most appropriate because it averts possible manner during the administrative the loss of time and money which would be proceedings. By taking the view of the caused by the annulment of acts which, as matter which it did the Court of First to their content, are entirely correct and Instance, Hercules maintains, is in the end lawful. In actual fact, the Court of First result conferring rights of the defence only Instance, according to the Commission, is on those parties who have demonstrated not depriving the accused of its rights of the their innocence to it. Consequently, it is defence but is rather not allowing conse- disregarding the unconditional nature of quences of disproportionate gravity to be the general principle at Community law of drawn from the alleged procedural defects. the protection of a party's right to defend In the alternative, the respondent points out itself. 7 The appellant considers that the that, in any event, the appellant's rights of breach of that right cannot be remedied by the defence were not infringed. Hercules production of the unlawfully withheld was not entitled to request access to the information at a later stage of the proceed- replies given by the other polypropylene ings, or discounted on the ground that the producers to the statements of objections information supplied would not have chan- addressed to them by the Commission. ged the outcome of the administrative proceedings.

brought under Regulation No 17. 8That No 17, the need for protection of the which must be examined in appeal pro- accused is not equally imperative in both ceedings is the correctness of the reasoning cases. Where, then, an administrative sanc- followed by the Court of First Instance: tion has been imposed without precise accordingly, it is not necessary to examine observance of the forms required by the the extent to which refusal of access to the rights of the defence of the accused but also replies given by the other producers to the with no substantive alteration of those statements of objections constitutes an rights, I consider that, unlike the position infringement of the rights of the party at criminal law, administrative proceedings concerned because, even in the absence of of the kind envisaged are not in the result that refusal, the administrative proceedings vitiated by defects. The application in that would have led to the same result. At first manner of the rights of the defence, not- sight, that interpretative approach, which is withstanding my reservations concerning in line with the Court's existing case-law, 9 the risks it entails, would seem to reconcile, appears to relativize the absolute nature of as well as may be, the need for protection the rights of the defence. In other words, of the party concerned with that of the the finding of an infringement of that right efficacy of the administrative proceedings. does not automatically render the adminis- trative proceedings defective, or necessarily entail annulment of the act 'adopted at the end of that procedure.

as strictly as possible. It would be unexcep- tial violation of the rights of the defence of tionable to argue that at criminal law there Hercules, it would have been necessary for is a need for protection of the rights of the that undertaking to have been deprived, defence as to both substance and form. In owing to the Commission's conduct, of the spite of the considerable similarities opportunity of putting forward a further between the criminal procedure and the factual submission or legal argument, corresponding proceedings (leading to the already at the administrative stage of the imposition of sanctions) to which I would proceedings leading to the imposition of assign proceedings under Regulation sanctions under Regulation No 17, which would have been likely to lead to a different outcome of those proceedings, more 8 — Thus I shall not examine the arguments of the Commission favourable to the party concerned.

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Nor would it be the appellant company's position was not possible, moreover, to infer an obligation rendered less favourable by the non-pro- on the part of the Court of First Instance to duction, at the stage of the administrative deliver judgment on the same date in all proceedings, of certain documents in the connected cases, even when they are heard Commission's possession. Consequently, together, from any other procedural prin- that ground of appeal must be rejected as ciple, for example relating to the proper unfounded. administration of justice or the right of judicial protection for persons subject to Community law. Simultaneous delivery of the judgments in question is in the discre- B — Alleged obligation to deliver judg- tion of, and not mandatory for, the Com- ments on a 'single infringement' at the same munity judicature. Consequently, the time choice made by the Court of First Instance not to deliver judgment on the same date in all the cases brought against the Polypro-

Otherwise judgment there is a likelihood that the matters of law and fact underpinning the judgment on the action brought by Hercules may be subject to review in the process of adjudication of 18. In its third ground of appeal Hercules the other actions pending against the same submits that the Court of First Instance decision. In that case, participants in the erred in imputing to it participation in same 'single infringement' could encounter concerted practices concerned with the a different application to them of the law, fixing of sales volume targets for the years depending on the date on which judgment 1981 and 1982. In that connection it points concerning them was delivered. The appel- out that the conclusion reached by the lant considers that the possibility of differ- Court of First Instance that Hercules parti- ent legal treatment of undertakings pursu- cipated in the '.

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11 — Paragraph 35 of the Orkem judgment, cited above at 13 — In any event, inasmuch as Hercules agreed to reply to the footnote 10. request for information, it is not entitled to request the 12 — That is to say the facts required for formulation of the Commission not to take account of the content of its minor premiss of the legal reasoning. replies.

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tion. Moreover, the appellant submits, even straight away that the possibility of impos- though the Court of First Instance found ing fines in cases where Article 85(1) of the that Hercules was not involved in attempts Treaty has been infringed is expressly to implement price initiatives and sales provided for by Article 15(2) of Regulation volume targets in respect of 1983, it No 17. Under the same provision the omitted to reduce on that ground the fine criteria to be taken into account in deter-

tion the Court has held that 'the gravity of infringements must be determined by refer- ence to numerous factors such as, in particular, the particular circumstances of 27. Like the Commission, the Court of the case, its context and the dissuasive First Instance examined, at paragraph 323 element of fines; moreover, no binding or of the judgment appealed against, the role exhaustive list of the criteria which must be played by Hercules in the infringement and applied has been drawn up'. 14 In that held that, in the light of that role, the fine context the Court of First Instance has sole imposed was justified. Moreover, and in competence to review the manner in which relation to the question whether the appel- the Commission in each case evaluates the lant's participation in the infringement also gravity of the unlawful conduct. The scope covers the year 1983, the Commission of the appellate court's review is merely to refers to paragraph 256 of the judgment appealed against, as rectified by the order of 9 March 1992. Following that rectifica- 14 — Order of the Court in Case C-137/95 SPO and Others v Commission [1996] ECR I-1611, paragraph 54.

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15 — For the sake of accuracy, it is not a question of a mistaken reading of the text of the judgment at first instance, but 31. As regards the question whether the rather of a correct reading of an erroneous text of that judgment, a defect which entails, none the less, the same infringement by Hercules came to an end in legal consequences. 1982 or 1983 it is worth making the 16 — It should be noted that there can be no link between the issue of the degree of observance of the rights of the following observations: if it had indeed defence and that of the fine. The consequence of an been acknowledged in the judgment infringement of the rights of the defence is the inability to rely on the evidence obtained unlawfully by the Commis- appealed against, as opposed to the Com- sion, and the consequent annulment of the act based on that evidence so that the question of the imposition of a mission's Polypropylene decision, that Her- fine no longer arises. cules ceased to participate in the infringe- 17 — See paragraphs 9 to 15 and 18 to 20.

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IV — Conclusion

33. In light of all the foregoing I propose that the Court should:

(1) Dismiss in its entirety the appeal brought by SA Hercules NV;