C-238/99
ECLI:EU:C:2001:574
- Súd
- Súdny dvor Európskej únie
- IČS
- 61999CC0238
- Zdroj
- eur-lex.europa.eu ↗
LIMBURGSE VINYL MAATSCHAPPIJ AXD OTHERS v COMMISSION
OPINION OF ADVOCATE GENERAL MISCHO delivered on 25 October 2001 1
I — Introduction objections as provided for in Article 2(1) of Commission Regulation No 99/63/EEC of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regu- lation No 17. 3All the undertakings con- cerned submitted observations in June 1988. Except for Shell International Chemical Company Ltd, which had not A — Background to the dispute requested a hearing, they were heard in September 1988.
1. Following investigations conducted in the polypropylene sector on 13 and 14 Oc- tober 1983 pursuant to Article 14 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty, 2 the 3. On 1 December 1988 the Advisory Commission of the European Communities Committee on Restrictive Practices and commenced an inquiry on polyvinyl- Dominant Positions (hereinafter 'the Advis- chloride (hereinafter 'PVC'). It sub- ory Committee') delivered an opinion on sequently undertook various investigations the Commission's draft decision. at the premises of the undertakings con- cerned and sent them requests for infor- mation.
4. At the end of the proceeding the Com- 2. On 24 March 1988 it instituted on its mission adopted Decision 89/190/EEC of own initiative a proceeding under 21 December 1988 relating to a proceeding Article 3(1) of Regulation No 17 against pursuant to Article 85 of the EEC Treaty 14 PVC producers. On 5 April 1988 it sent (IV/31.865, PVC), 4(hereinafter 'the PVC I each of those undertakings a statement of decision'). By that decision, the Commis-
1 — Original language: French. 3 — OJ, English Special Edition 1963-64, p. 47. 2 — OJ, English Special Edition 1959-1962, p. 87. 4 —OJ 1989 1.74, p. 1.
I - 8391
OPINION OF MR MISCHO — CASE C-238/99 P
sion penalised the following PVC producers 9. On appeal by the Commission, the for infringement of Article 85(1) of the Court of Justice, by judgment of 15 June Treaty (now Article 81(1) EC): Atochem 1994 in Commission v BASF and Others, 7 SA, BASF AG, DSM NV, Enichem SpA, set aside the judgment of the Court of First Hoechst AG (hereinafter 'Hoechst') Hüls Instance and annulled the PVC I decision. AG, Imperial Chemical Industries pic (here- inafter 'ICI'), Limburgse Vinyl Maatschap- pij NV, Montedison SpA, Norsk Hydro AS, Société artésienne de vinyle SA, Shell Inter- national Chemical Company Ltd, Solvay et Cie (hereinafter 'Solvay') and Wacker- 10. The Commission thereupon adopted a Chemie GmbH. fresh decision, on 27 July 1994 in relation to the producers who had been the subject of the PVC I decision, with the exception, however, of Solvay and Norsk Hydro AS (Commission Decision of 27 July 1994 5. All those undertakings except Solvay relating to a proceeding pursuant to brought actions to have that decision Article 85 of the EC Treaty (IV/31.865 — annulled by the Community judicature. PVC) (OJ 1994 L 239, p. 14, hereinafter 'the PVC II decision'). That decision imposed on the undertakings to which it was addressed fines of the same amounts as those imposed by the PVC I decision. 6. The Court of First Instance declared Norsk Hydro's application inadmissible by order of 19 June 1990. 5
11. The PVC II decision contains the fol- lowing provisions: 7. The other cases were joined for the purposes of the oral procedure and the judgment.
''Article 1 8. By judgment of 27 February 1992 in BASF and Others v Commission, 6 the Court of First Instance declared the PVC I decision non-existent. BASF AG, DSM NV, Elf Atochem SA, Enichem SpA, Hoechst AG, Hüls AG, 5 — Case T-106/89, not published in the European Court Imperial Chemical Industries plc, Lim- Reports. 6 — Joined Cases T-79/89, T-84/89, T-85/89, T-86/89 T-89/89, T-91/89, T-92/89, T-94/89, T-96/89, T-98/89, T-102/89 and T-104/89 BASF and Others v Commission [1992] ECR 7 — Case C-137/92 P Commission v BASF and Others [1994] II-315. ECR I-2555.
I - 8392
LIMBURGSE VINYL MAATSCHAPPIJ AND OTHERS v COMMISSION
burgse Vinyl Maatschappij NV, Mon- or by which they might be able to monitor tedison SpA, Société artésienne de vinyle adherence to any express or tacit agreement SA, Shell International Chemical [Com- or to any concerted practice covering price pany] Ltd and Wacker Chemie GmbH or market-sharing inside the Community. infringed Article 85 of the EC Treaty Any scheme for the exchange of general (together with Hydro Norsk... and Sol- information to which the producers sub- vay...) by participating for the periods scribe concerning the PVC sector shall be identified in this Decision in an agreement so conducted as to exclude any information and/or concerted practice originating in from which the behaviour of individual about August 1980 by which the producers producers can be identified, and in par- supplying PVC in the Community took part ticular the undertakings shall refrain from in regular meetings in order to fix target exchanging between themselves any addi- prices and target quotas, plan concerted tional information of competitive signifi- initiatives to raise price levels and monitor cance not covered by such a system. the operation of the said collusive arrange- ments.
Article 3
Article 2 The following fines are hereby imposed on the undertakings named herein in respect of the infringement found in Article 1:
The undertakings named in Article 1 which are still involved in the PVC sector in the Community (apart from Norsk Hydro and Solvay which are already the subject of a (i) BASF AG: a fine of ECU 1 500 000; valid termination order) shall forthwith bring the said infringement to an end (if they have not already done so) and shall henceforth refrain in relation to their PVC operations from any agreement or con- certed practice which may have the same or (ii) DSM NV: a fine of ECU 600 000; similar object or effect, including any exchange of information of the kind normally covered by business secrecy by which the participants are directly or indi- rectly informed of the output, deliveries, stock levels, selling prices, costs or invest- (iii) Elf Atochem SA: a fine of ECU ment plans of other individual producers, 3 200 000;
I - 8393
OPINION OF MR MISCHO — CASE C-238/99 P
(iv) Enichem SpA: a fine of ECU 2 500 000; (xi) Shell International Chemical Company Ltd: a fine of ECU 850 000;
(v) Hoechst AG: a fine of ECU 1 500 000; (xii) Wacker-Chemie GmbH: a fine of ECU 1 500 000.'
(vi) Hüls AG: a fine of ECU 2 200 000;
B —· Procedure before the Court of First Instance
(vii) Imperial Chemical Industries pic: a fine of ECU 2 500 000; 12. By various applications lodged at the Registry of the Court of First Instance between 5 and 14 October 1994, Lim- burgse Vinyl Maatschappij NV, Elf Ato- chem SA (hereinafter 'Elf Atochem'), BASF AG, Shell International Chemical Company (viii) Limburgse Vinyl Maatschappij NV: a Ltd, DSM NV and DSM Kunststoffen BV, fine of ECU 750 000; Wacker-Chemie GmbH, Hoechst, Société artésienne de vinyle SA, Montedison SpA, ICI, Hüls AG and Enichem Spa brought actions before the Court of First Instance.
(ix) Montedison SpA: a fine of ECU 1 750 000; 13. Each sought the annulment of the PVC II decision in whole or in part and, in the alternative, the annulment or reduction of the fine. Montedison Spa also pleaded that the Commission should be ordered to pay damages on account of costs incurred in (x) Société artésienne de vinyle SA: a fine putting together a guarantee and any other of ECU 400 000; expenses arising from the PVC II decision.
I - 8394
LIMBURGSE VINYL MAATSCHAPPIJ AND OTHERS v COMMISSION
C — The judgment of the Court of First D — Procedure before the Court of Justice Instance
14. By judgment of 20 April 1999 in Lim- 15. By application lodged at the Court burgse Vinyl Maatschappij and Others v Registry on 29 June 1999, LVM appealed Commission 8 (hereinafter 'the contested pursuant to Article 49 of the EC Statute of judgment'), the Court of First Instance: the Court of Justice.
— joined the cases for the purposes of the judgment; 16. It claims that the Court should:
— annulled Article 1 of the PVC II decision in so far as it found that — set aside the contested judgment Société artésienne de vinyle SA had wholly or in part and terminate the participated in the infringement com- proceedings or, in the alternative, refer plained of after the first half of 1981; the case back to the Court of First Instance in order that the proceedings may be resumed;
— reduced the fines imposed on Elf Ato- chem SA, Société artésienne de vinyle SA and ICI to EUR 2 600 000, EUR — annul the PVC II decision wholly or in 135 000 and EUR 1 550 000 respect- part; ively;
— dismissed the remainder of the action; — annul or reduce the fine imposed on the appellant;
— ruled on the costs.
— order the Commission to pay the costs 8—Joined Cases T-305/94, T-306/94, T-307/94, T-313/94, T-314/94. T-315/94, T-316/94, T-318/94, T-325/94, of the proceedings at first instance and T-32S/94, T-329/94 and T-335/94 [1999] ECR II-931. on appeal.
I - 8395
OPINION OF MR MISCHO — CASE C-238/99 P
17. The Commission contends that the — invalidity or the procedural measures Court should: taken prior to the adoption of the PVC I decision;
— dismiss the appeal; — irregularity of the adoption procedure for the decision of 27 July 1994;
— order the appellant to pay the costs of the proceedings at first instance and on appeal. — inadequate statement of reasons;
I I — Assessment — infringement of the right not to give evidence against oneself;
18. LVM puts forward the following pleas in support of its appeal:
— infringement of the right of access to the Commission's file;
— infringement of the doctrine of res judicata;
— limitation.
— infringement of the principle non bis in idem;
19. LVM points out that its grounds of appeal are identical, in scope and content, to those of the appellants DSM NV and — infringement of the principle that DSM Kunststoffen in Case C-244/99 P, decisions must be adopted within a except that they advanced two additional reasonable time; pleas.
I - 8396
LIMBURGSE VINYL MAATSCHAPPIJ AND OTHERS v COMMISSION
20. I consider I may therefore refer to my therein that all of the pleas put forward by Opinion delivered today in Case C-244/99 the appellant should be rejected. P. It is apparent from the reasons stated
Conclusion
21. I propose that the Court should:
— dismiss the appeal;
— order the appellant to pay the costs.
I - 8397