C-244/99

OPINION OF MR MISCHO — CASE C-244/99 P

OPINION OF ADVOCATE GENERAL MISCHO delivered on 25 October 2001 1

Table of contents

I — Introduction I - 8399

A — Background to the dispute I - 8399

B — Procedure before the Court of First Instance I - 8402

Plea alleging invalidity of the procedural measures prior to the decision I-8427

Plea alleging irregularity of the procedure for adopting the PVC II decision I - 8429

Plea alleging inadequate statement of reasons I - 8435

Plea relating to the inviolability of the home I-8437

Plea alleging infringement of the right not to give evidence against oneself I - 8440

Plea alleging infringement of Article 20(1) of Regulation No 17 I - 8445

I — Introduction in Article 19(1) and (2) of Regulation No 17. 3All the undertakings concerned submitted observations in June 1988. Except for Shell International Chemical Company Ltd, which had not requested a hearing, they were heard in September 1988.

A — Backgrotmd to the dispute

3. On 1 December 1988 the Advisory Committee on Restrictive Practices and 1. Following investigations conducted in Dominant Positions (hereinafter 'the Advis- the polypropylene sector on 13 and 14 Oc- ory Committee') delivered an opinion on tober 1983 pursuant to Article 14 of the Commission's draft decision. Council Regulation No 17 of 6 February 1962, first regulation implementing Articles 85 and 86 of the Treaty, 2 the Commission of the European Communities commenced an inquiry on polyvinyl- chloride (hereinafter 'PVC'). It sub- sequently undertook various investigations at the premises of the undertakings con- 4. At the end of the proceeding, the Com- cerned and sent them requests for infor- mission adopted Decision 89/190/EEC of mation. 21 December 1988 relating to a proceeding pursuant to Article 85 of the EEC Treaty (IV/31.865, PVC) 4(hereinafter 'the PVC I decision'). By that decision, the Commis- sion penalised the following PVC producers for infringement of Article 85(1) of the Treaty (now Article 81(1) EC): Atochem SA, BASF AG, DSM NV, Enichem SpA, Hoechst AG (hereinafter 'Hoechst'), Hüls 2. On 24 March 1988 it instituted on its AG, Imperial Chemical Industries pic (here- own initiative a proceeding under inafter 'ICI'), Limburgse Vinyl Maatschap- Article 3(1) of Regulation No 17 against pij NV, Montedison SpA, Norsk Hydro AS, 14 PVC producers. On 5 April 1988 it sent Société Artésienne de Vinyle SA, Shell each of those undertakings a statement of International Chemical Company Ltd, Sol- objections as provided for in Article 2(1) of vay et Cie (hereinafter 'Solvay') and Commission Regulation No 99/63/EEC of Wacker-Chemie GmbH. 25 July 1963 on the hearings provided for

8. By judgment of 27 February 1992, 6the Court of First Instance declared the PVC I decision non-existent.

'Article 1 9. On appeal by the Commission, the Court of Justice, by judgment of 15 June 1994 in Commission v BASF and Others, 7 set aside the judgment of the Court of First Instance and annulled the PVC I decision.

BASF AG, DSM NV, Elf Atochem SA, Enichem SpA, Hoechst AG, Hüls AG, Imperial Chemical Industries plc, Lim- 10. The Commission thereupon adopted a burgse Vinyl Maatschappij NV, Mon- fresh decision, on 27 July 1994, in relation tedison SpA, Société Artésienne de Vinyle SA, Shell International Chemical [Com- pany] Ltd and Wacker-Chemie GmbH 5 — Case T-106/89, not published in the European Court Reports. infringed Article 85 of the EC Treaty 6 — Joined Cases T-79/89, T-84/89, T-85/89, T-86/89, T-89/89, (together with Hydro Norsk... and Sol- 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 vay...) by participating for the periods II-315. identified in this Decision in an agreement 7 — Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555. and/or concerted practice originating in

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about August 1980 by which the producers Article 3 supplying PVC in the Community took part in regular meetings in order to fix target prices and target quotas, plan concerted initiatives to raise price levels and monitor the operation of the said collusive arrange- ments. The following fines are hereby imposed on the undertakings named herein in respect of the infringement found in Article 1:

(vii) Imperial Chemical Industries pic: a between 5 and 14 October 1994, Lim- fine of ECU 2 500 000; burgse Vinyl Maatschappij NV, Elf Ato- chem SA (hereinafter 'Elf Atochem'), BASF AG, Shell International Chemical Company Ltd, DSM NV and DSM Kunststoffen BV, Wacker-Chemie GmbH, Hoechst, Société Artésienne de Vinyle SA, Montedison SpA, (viii) Limburgse Vinyl Maatschappij NV: a ICI, Hüls AG and Enichem SpA brought fine of ECU 750 000; actions before the Court of First Instance.

(ix) Montedison SpA: a fine of ECU 13. Each sought the annulment of the PVC 1 750 000; 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.

(xi) Shell International Chemical Company Ltd: a fine of ECU 850 000; C — The judgment of the Court of First Instance

(xii) Wacker-Chemie GmbH: a fine of 14. By judgment of 20 April 1999 in Lim- ECU 1 500 000.' burgse Vinyl Maatschappij and Others v Commission 8 (hereinafter 'the contested judgment'), the Court of First Instance:

B — Procedure before the Court of First — joined the cases for the purposes of the Instance judgment;

8—Joined Cases T-305/94, T-306/94, T-307/94, T-313/94, 12. By various applications lodged at the T-314/94, T-31J/94, T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maats- Registry of the Court of First Instance chappij and Others v Commission [1999] ECR II-931.

— annul or reduce the fine imposed on the appellant;

— ruled on the costs.

— order the Commission to pay the costs of the proceedings at first instance and on appeal.

D — Procedure before the Court of Justice

17. The Commission contends that the Court should: 15. By application lodged at the Court Registry on 29 June 1999, DSM NV and DSM Kunststoffen BV (hereinafter 'DSM' or 'the appellant') appealed pursuant to Article 49 of the EC Statute of the Court of Justice. — dismiss the appeal;

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19. The appellant complains that the Court 79 As a consequence, the Court summa- of First Instance rejected its argument based rised the applicants' pleas in their on an infringement of the authority of res actions before the Court of First judicata. Instance for the annulment of the 1988 decision in the following terms: "The pre-litigation procedure was defective in a number of ways; the contested decision was not reasoned or was 20. The Court of First Instance held as insufficiently reasoned; the rights of follows: the defence were not observed; the evidential basis adopted by the Com- mission was questionable; the con- tested decision was contrary to Article 85 of the Treaty and to general principles of Community law; the '77 The principle of res judicata extends decision was in breach of limitation only to the matters of fact and law rules; it was vitiated by misuse of actually or necessarily settled by a power; and the fines imposed were judicial decision (Case C-281/89 Italy unlawful" (paragraph 56).

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84 The second sentence of that provision does not mean that where the Court 81 Having held that the Commission had itself gives final judgment in the dispute infringed the first paragraph of by accepting one or more pleas raised Article 12 of its Rules of Procedure by by the applicants it automatically failing to carry out the authentication settles all the points of fact and law of the 1988 decision in accordance raised by the latter in the context of the with that article, the Court concluded: case. To follow Enichem's argument "The decision must therefore be would amount to denying that res annulled for infringement of essential judicata has legal force only in relation procedural requirements without it to those points of fact and law which

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were actually or necessarily deter- 24. It follows, in particular, that, if a mined. decision is annulled, the judgment binds the institution which is the author of the measure only in respect of the matters on which it has expressly or necessarily given judgment.

85 In the light of the above, the plea must be rejected.'

25. In the present case, the Court held, in its PVC I judgment, that the contested decision should be annulled for infringe- 21. I agree with this assessment of the ment of essential procedural requirements, Court of First Instance. and that it was therefore not necessary to examine the other pleas raised.

28. However, the Commission points out, rightly in my view, that Article 6 concerns the length of the proceedings, not the matter of which factual or legal points should be regarded as having been decided by a judicial ruling. 33. The appellant also quotes the Court's reference, in its PVC I judgment, to Article 54 of the Statute, pursuant to which it had decided that the state of the proceed- ings in the dispute permitted judgment to be given and had therefore given a final 29. The appellant also relies on the second ruling. paragraph of Article 174 of the EC Treaty (now the second paragraph of Article 231 EC), from which it infers that an institution may repair the defects established in a judicial decision only in the case of regu- lations. By contrast, there is no such 'second chance' for decisions. 34. It is true that the Court thus gave final judgment on the dispute concerning the validity of the contested decision. It con- sidered that it was able to do so since it had found that the Commission had infringed 30. That assessment is based on an incor- its Rules of Procedure and that finding rect view of the scope of that provision. It alone was sufficient grounds on which to does not apply to the issue in this case, annul the decision. There was therefore no namely the obligations of an institution need to refer the case back to the Court of whose decision has been annulled and First Instance. which must take the appropriate steps, in accordance with what has been decided in the judgment pronouncing the annulment.

35. However, that provides no ground for 31. On the contrary, it relates to the the inference drawn by the appellant, that completely different question — which is the Court therefore prevented the Commis- not raised in this case — of whether the sion from adopting a new decision. On the Court may retain some of the effects of the contrary, it expressly stated, as we have annulled measure. seen, that it did not consider it necessary to

40. The appellant disputes the rejection, in the contested judgment, of its argument 37. It should be pointed out, however, that based on the principle non bis in idem. The Transocean Marine Faint v Commission Court of First Instance relied, in that concerned a different situation. The Com- regard, on the following two considerations mission was considering a request for (see paragraphs 97 and 98 of the contested exemption under Article 85(3) of the EC judgment). Treaty (now Article 81(3) EC), to which it was under a duty to respond. Therefore, the annulment of its decision required it to adopt a new one. It was therefore logical for the Court to make reference to that 41. Firstly, it pointed out that the Com- when referring the case to the Commission. mission adopted its PVC II decision after the annulment of its 1988 decision and did not, therefore, make the undertakings incur a penalty twice in respect of the same infringement.

38. On the other hand, in the case of a decision finding an infringement, the Com- mission does not have the same duty to 42. Secondly, it added that the judgment of the Court of Justice annulling the decision did not give a specific ruling on any 10 — Case 17/74 Transocean Marine Paint v Commission [1974] ECR 1063. substantive plea raised by the applicant.

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Consequently, by adopting its PVC II did not end in a conviction. This inter- decision, the Commission had merely pretation is confirmed by Article 4(1) of remedied the formal defect found by the Protocol No 7 to the ECHR, which had Court and had not taken action against the come into force in the meantime. In Com- appellant twice in relation to the same set mission v BASF and Others, the appellant of facts. had been 'acquitted' within the meaning of that provision.

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decision had never existed, contradicted its ment is inconsistent with paragraphs 97 reasoning in response to a plea concerning and 98. On the contrary, in the two latter limitation, in paragraph 1 100 of the paragraphs, the Court of First Instance contested judgment, in which it rejected applied to the case in point the principle the claim that the legal effect of the annul- which it stated in paragraph 96, in order to ment of the PVC I decision had been to show that the principle had not been prevent suspension of the limitation period, infringed in the case. stating that 'it is the very fact that an action is pending before the Court of First Instance or the Court of Justice which justifies the suspension, and not the con- clusions reached by those courts in their judgments'. 51. Indeed, as the Commission also points out, the Court of First Instance made the applicability of the principle conditional on the establishment of tangible proof of the infringement. If a ruling had been given on this question, the Commission would have 48. As regards this last argument, it should been required to take it into account when be pointed out that the inconsistency is implementing the judgment, in accordance only apparent. The Court of First Instance's with Article 176 of the Treaty. reasoning related to two different ques- tions, that is, the conditions of limitation, on the one hand, and the conditions of application of the principle non bis in idem, on the other.

55. The appellant is also wrong to consider that it is necessary to apply Article 4 of Protocol No 7 to the ECHR in the sense that the appellant has been 'finally acquitted or convicted' within the meaning 59. Under the first limb, it argues that the of that provision and is therefore finally Court of First Instance infringed Article 6 immune from any further proceedings. of the ECHR by not giving a ruling on a plea which the appellant had expressly raised before it, in which it stated that Article 6 was as such applicable to Com- munity proceedings in respect of compe- tition.

60. First of all, it should be pointed out 56. In this case, there was no final decision that, even if the complaint were well on the substance of the dispute, but only a founded, this would not be an infringement judgment finding a formal defect. It is not of Article 6 of the ECHR but a breach of possible to place these two on the same the duty of the Court of First Instance to footing, any more than it is possible to treat give reasons for its judgment. an acquittal in the same way as a judgment annulling a measure for a formal defect, to take up the analogy with criminal law, on which the appellant seems to insist. An acquittal, once final, makes it impossible to bring further proceedings, whereas annul- 61. In any event, I regard the complaint as ment for a formal defect simply means that unfounded. The Court of First Instance — the accused will be judged again. admittedly implicitly, but clearly —

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63. The first limb of this plea, alleging 66. The approach taken by the Court of failure to respond to the appellant's argu- First Instance was also wholly consistent ment, must therefore be rejected. with settled case-law, according to which the observance of fundamental rights forms part of the general principles of Commu- nity law whose observance the Court of Justice ensures. The Court of First Instance therefore did no more than apply that 64. Under the second limb, the appellant case-law, to which, furthermore, it argues that, according to the case-law of expressly refers in paragraph 120 of the the European Court of Human Rights and contested judgment, which also draws

1 1 — Joined Cases T-213/95 and T-18/96 SCK and FNK v 12 —Case C-185/95 P Baustahlgewebe v Commission [1998] Commission [1997] ECR II-1739, paragraph 56. ECR I-8417.

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attention, in that respect, to Article F(2) of that an accused does not remain for too the Treaty on European Union, which long under a charge before a ruling is given provides: 'The Union shall respect funda- on its merits. 13 Too long a wait constitutes mental rights, as guaranteed by the [ECHR] an additional penalty. and as they result from the constitutional traditions common to the Member States, as general principles of Community law'.

70. DSM considers that, in paragraph 122 of the contested judgment, the Court of First Instance misinterpreted that aim by holding that:

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71. In the event of failure to comply with 74. What are we to make of this line of the principle of reasonable promptitude, argument? the appellant argues, what is at issue is an extra prejudice suffered by the accused, not an infringement of the rights of the defence as such. 75. First of all, as the Commission main- tains, the appellant is clearly wrong in thinking that the Court of First Instance contradicted the case-law in Baustahlge- webe v Commission. 72. In Baustahlgewebe v Commission, the Court of Justice reduced the fine after finding that a reasonable time had been exceeded. It expressly ruled out the idea that the solution should be found through 76. On the contrary, in so far as concerns compensation. It stated that, for the pur- the effect of exceeding the reasonable poses of an annulment of the Commission's period on the validity of the contested decision, the length of the proceedings must measure, it took the same approach as the have had an influence on the outcome of Court of Justice in that case. Accordingly, the case. However, the background to this in paragraph 49 of that judgment, the statement was the fact that, in that case, it Court held that the plea alleging failure to was the Court of First Instance which had observe the principle of reasonable promp- exceeded a reasonable period, a circum- titude cannot, in the absence of any indi- stance for which, theoretically, the Com- cation that the length of the proceedings mission could not be blamed. affected their outcome in any way, result in the contested judgment being set aside in its entirety.

Instance, where it considers that excessive 82. In the contested judgment, the Court of length of the proceedings must lead to an First Instance nevertheless assimilated a annulment if the rights of the defence of the possibly excessive duration of the proceed- undertaking have been jeopardised, a situ- ings before the Commission to failure of ation in which there is bound to be a the Community judicature to observe the possible effect on the outcome of the principle of reasonable promptitude. Was it proceedings, and to compensation in other entitled to do that or should it have cases. concluded that the differences between those two situations required that they should be treated differently for the pur- poses of applying the principle of reason- able promptitude? 79. Let us note, therefore, that the appel- lant's argument rests on the premiss, which is not disputed by the Commission, that the Court of First Instance, when hearing the 83. In that regard, it should be pointed out action for annulment against the Commis- that the fact that the administration is sion's decision, should have applied the required to take its decisions within a principle of reasonable promptitude. This reasonable period is already established in consideration requires some thought. Community law. Indeed, both the case-law relating to disciplinary measures in con- nection with the Community Staff Regu- lations and the case-law relating to the principle of the protection of legal certainty 80. Indeed, Article 6 of the ECHR, on or the principle of sound administration which the appellant bases its claim, is provide numerous examples. 14 clearly designed to establish the right to obtain a judicial determination, since it states the need for 'an independent and impartial tribunal' and mentions the necessity for judgments to be pronounced 84. Furthermore, the need to protect oper- publicly. Therefore, this provision cannot ators from long legal uncertainty, which automatically be applied to administrative constitutes the rationale of the principle of proceedings before the Commission. reasonable promptitude, is present, in my view, just as much in proceedings before the Commission as in those before the Court of First Instance.

91. It is also undeniable that there are other 87. At the former stage, no complaint has relevant differences between the position of yet been made against the operators. The an undertaking appearing before the Com- Commission may indeed ask them for mission and its position before the Court of information but they do not have to defend First Instance. In the first case, no measure themselves against any accusation. There is likely to cause prejudice has yet been taken therefore no uncertainty in respect of the against the undertaking. In the second case, substance of any charge against them or, on the other hand, such a measure has been consequently, any material or non-material taken and the person to whom it is damage. addressed is entitled to know as quickly as possible whether or not it has been taken with good reason.

88. On the other hand, after receiving the statement of objections, the undertakings concerned are the subject of a formal 92. That said, the fact remains that under- charge of infringing the competition rules takings to which statements of objections and the procedure therefore becomes some- are addressed are in a state of uncertainty what contentious in nature, since the as to whether a charge will be brought undertakings must be heard. against them.

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93. As the appellant points out, it is also 97. It follows that if this did not affect the apparent from the case-law of the Euro- undertakings' exercise of their rights of pean Court of Human Rights that proceed- defence and did not, therefore, have an ings relating to competition law may fall influence on the outcome of the proceed- within the substantive scope of Article 6 of ings, the application of the principle must the ECHR and therefore the principle of result in lesser consequences than in the reasonable promptitude may be appli- converse situation. cable. 15

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102. This solution, rightly found by the also inspired Article 51 of the Statute of the Court of First Instance, is, as the Commis- Court of Justice, which makes the possibil- sion maintains and contrary to what the ity of relying on procedural irregularities as appellant claims, essentially in accordance a ground of appeal subject to the condition with the approach taken by the Court of that they affected the appellant's interests. Justice in Baustahlgewebe v Commission. Although the Court of Justice did indeed hold that infringement of the principle of reasonable promptitude should result in the annulment of the contested measure, it expressly limited the scope of the annul- 105. It is true that, whilst the solution ment to the fixing of the amount of the fine found by the Court of First Instance is and specified that, in the absence of any essentially in accordance with the judgment indication that the length of the procedure in Baustahlgewebe v Commission, the fact had affected the outcome of the case, there remains that it diverges from it consider- was no need to annul the rest of the ably in one fundamental respect, for which judgment. the appellant does not hesitate to blame the Court of First Instance.

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115. It states, in that regard, that, accord- The intervention of the Court of First ing to the case-law of the European Court Instance and the Court of Justice cannot of Human Rights, the point from which the be attributed to the Commission. length of the proceedings is determined is the official notification from the competent authority of the complaint that a criminal infringement has been committed or of measures implying such a complaint and also having significant repercussions on the suspect's circumstances, and includes the 118. I agree with that analysis. Unlike the total length of the proceedings, including appellant, I think it is impossible merely to the length of the court action. add the duration of the administrative proceedings and the duration of the court proceedings in order to determine the duration of the proceedings for the pur- poses of the principle of reasonable promp- titude.

116. In the present case, the reasonable period therefore started to run at the beginning of the investigations carried out by the Commission, that is in November 119. Such an approach would give rise to a 1983, and ended, provisionally, on series of paradoxical consequences. 20 April 1999, the date on which the contested judgment was pronounced, sub- ject to the later addition of the length of the appeal proceedings.

126. On the other hand, the Court of First Instance considers a particular legal meas- ure, a Community decision against which a 123. In all other situations — annulment series of specific complaints are made. The of the decision, whether or not followed by same is true, mutatis mutandis, of the the adoption of a fresh decision, or even Court of Justice in an appeal. The action annulment of the judgment at first instance must be brought within a given time and with reference back to the Court of First the Court is under a duty to decide the case. Instance — the undertakings concerned would merely need to continue, for as long as necessary, to bring actions while keeping an eye, if I may say so, on the calendar so as to be able, when the time came, to bring an end to the proceedings by playing the trump card of the reasonable time require- ment. 127. It is true, as I have stated above, that, in both situations, undertakings have the right for their situation to be settled within a reasonable time. It does not follow, however, that the two procedures may be regarded as being of equal value in the light 124. This view, in my opinion, fails to take of that principle and therefore accumu- account of the difference between pro- lable. cedure before the Commission and pro- cedure before the Community courts.

128. The applicant is therefore wrong to 125. Before the Commission, what is at criticise the Court of First Instance for not issue is a set of facts which are attributed to resorting to aggregation.

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131. Indeed, the very nature of those measures and their place in the chronology of the taking of the decision show that, at the time they are adopted, the Commission is not yet in a position to formulate complaints against anybody, but is still seeking facts which will result in the poss- ible adoption of a statement of objections, 134. Moreover, as the Commission points which will not necessarily be addressed to out, it is during this second stage that the the undertakings which have been the outcome of the proceedings before it is subject of measures of inquiry. decided. It has already been shown that, in order to implement the principle of reason- able promptitude, the Court of First Instance had to determine whether the length of the proceedings had had an impact on their outcome. It is therefore logical that, in the application of that 132. It is also revealing, in that regard, that principle, the second stage is more import- Articles 11 and 14 of Regulation No 17, ant than the first.

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135. I even think that the principle of encouraging undertakings to be as dilatory reasonable promptitude is not applicable as possible in fulfilling that obligation to the first stage. That is apparent, in my because they would know that every delay- view, from the considerations expounded ing tactic on their part would increase their above relating to the rationale of this chances of obtaining the annulment of a principle. As we have seen, it is a question possible decision for failure by the Com- of preventing a person from being kept in mission to observe that principle. uncertainty for a long time in respect of an accusation made against him.

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taken is reasonable is what is at stake for first by pointing out that notification of the the undertakings in the matter. The Court statement of objections presupposes that of First Instance examined that criterion proceedings for infringement are being only in relation to the period which began brought and indicates the Commission's with the communication of the statement intention to adopt a decision to that effect. of objections, thereby completely omitting, without giving reasons, to examine that criterion and also the others, save for the criterion of the complexity of the matter, in relation to the previous period, which the Court had nevertheless itself identified. 147. It also pointed out that it is only when the statement of objections is issued that an undertaking may acquaint itself with the subject-matter of the proceedings brought against it and the actions which the Com- mission complains it has committed. It 144. It has been noted above that this concluded from this that it is of specific period, which precedes the issue of the interest to the undertakings that the Com- statement of objections, is fundamentally mission should conduct the second stage of different, as regards the principle of reason- the proceedings particularly promptly. able promptitude, from the following stage, for which the Court of First Instance examined the assessment criterion in ques- tion.

148. The Court of First Instance gave sufficient reasons for its assessment differ- entiating between the successive stages of the procedure before the Commission. 145. I therefore take the view that there are no grounds for complaining that the Court of First Instance did not examine all of the criteria for assessing whether the length of the proceedings prior to the issue of the statement of objections was reasonable. 149. It is apparent from all the above that the fifth limb of this plea is unfounded.

151. DSM points out that the European lasting about 41 months was alleged before Court of Human Rights held that a period the Court of First Instance. of inactivity of more than three years is excessive, without going any further.17 In its judgment of 28 March 1990 in B v Austria (Series A No 175), a case in which the period had been 33 months, it had established that a criterion of two years 155. The appellant complains that, in was appropriate in criminal matters. A paragraph 134 of the contested judgment, reasonable period cannot therefore exceed the Court of First Instance held, without two years, according to the settled case-law giving any reasons, that the PVC II decision of the European Court of Human Rights. had been adopted by the Commission within a reasonable period, whereas a period of five years and seven months, that is, 67 months, had elapsed between the PVC I and PVC II decisions. The Court of 152. The appellant claims that the present First Instance therefore also infringed, case has striking similarities to the judg- without stating its reasons, its legal obli- ment in Caryfallou AEBE v Greece, 18 gation to assess and apply the legal criteria relating to a case in which the deter- for reasonable promptitude. According to mination of a criminal charge had taken the appellant, the final full-stop was put to more than 11 years, a period considered this case on 20 April 1999, the day on excessive by the European Court of Human which the contested judgment was pro- Rights. nounced, so that by that date a period of 15 years and 7 months had elapsed since November 1983, when the period had started to run. Such a delay is, it maintains, excessive in the light of all the criteria. 153. In Baustahlgewebe v Commission (paragraphs 45 to 47), the Court of Justice identified two separate periods of inactiv- ity — in so far as concerned the proceed- ings before the Court of First Instance — of 32 and 22 months respectively, and held 156. This argument is based on two mis- that the proceedings had not satisfied the taken premisses. It presupposes that it is requirements of reasonable promptitude. necessary to apply the principle of reason- able promptitude to the whole of the proceedings before the Commission, which, as we have just seen, is not the case.

158. It is also necessary, in that regard, to point out that, in any event, the problems 161. That is, essentially, what the Court of at issue cannot consist in a simple compari- First Instance did. son between the total length of the pro- cedure and some prearranged standard. Such an approach fails to have regard to the eminently variable nature of the pro- ceedings in question which may differ both in relation to the number and complexity of the legal and factual issues raised and in relation to the parties concerned. Fur- 162. As regards the obligation of the Court thermore, this situation is repeated at all of First Instance to provide a statement of stages, whether administrative or legal, of reasons, it is apparent from what I have the proceedings. stated above that the Court gave reasons for the distinctions it made when determin- ing the length of the procedure. Since the fact that the appellant's argument is unfounded is a direct and necessary result of those distinctions, the Court of First Instance did not have to give further 159. Against that background, it is absurd reasons on this point. to try and define ex ante a sole period of reference against which any proceedings, whatever their individual characteristics, should be measured.

163. As for the parallel which the appellant seeks to draw with the precedent in Gary- fallou AEBE v Greece, this is in any event irrelevant since it follows from that preced- 160. It follows that only a casuistic ent, assuming it is applicable to this case, approach can, in practice, make it possible that a period of 11 years is excessive. No to apply the principle of reasonable promp- period of that kind of length is relevant to titude. Instead of mechanically adding the present case, given that the aggre- together successive periods of time, it is a gations proposed by the appellant are question, on the contrary, at each stage of misconceived.

168. It cites, first of all, the settled case-law according to which the validity of prepara- tory acts can be assessed only within the framework of an action for annulment 173. That statement, which, moreover, against the final measure. merely reflects the application to this case

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of the general principle of res judicata, is question. The nullity of the decision was confirmed by the case-law cited by the the consequence of the invalidity of the Court of First Instance 19 and by the case- preparatory procedure, namely access to law invoked by the appellant. the file, and not, as in this case, the lack of authentication of the final text of the decision. It therefore necessarily followed that, when implementing the judgment annulling the decision, the Commission's task was to take into account the causes of the annulment and to remedy them, if 174. Indeed, in the precedents cited by the necessary by repeating the procedural appellant, 20 the nullity of the Commis- measures whose nullity had caused the sion's decision arose — unlike in the pres- invalidity of the final decision. ent case — from a procedural defect affecting measures taken prior to the final adoption of the text and therefore imposed an obligation on the author of the decision to remedy the invalidity affecting the pre- paratory measures, except in Italy v Com- mission, in which neither the final decision nor a preparatory measure was annulled. 177. The same applies to the other judg- ments cited by the appellant. Thus, in Transocean Marine Faint v Commission, the partial nullity of the contested decision also arose from the measures taken pre- paratory to the decision. In British Aero- 175. The appellant relies in particular on space and Rover v Commission and Italy v the judgment of the Court of First Instance Commission, what was at issue was the in Cimenteries CBR and Others v Com- adoption by the Commission of new mission, 21 in which the Court held that, as decisions in respect of State aid in the a consequence of the annulment of the context of disputes relating to the imple- Commission decision, the whole procedure mentation of previous decisions and not the was unlawful. consequences of a judgment annulling a measure.

184. In this regard the appellant puts for- 180. That annulment arose from the mere ward an argument divided into two limbs fact that the Commission infringed the relating, respectively, to the observance of procedural rules governing only the the rights of the defence and consultation detailed procedure for the definitive adop- of the Advisory Committee. tion of the decision. The nullity could not extend to the procedural stages which predated the occurrence of that irregularity and to which the said rules were not intended to apply. 185. Under the first limb, it claims that, by adopting the PVC II decision without first hearing the undertakings concerned, the Commission infringed the rights of the defence, which it is required to observe when adopting any measure liable to affect 181. The situation is therefore similar to them adversely. that considered in the judgment in Spain v Commission, 23 cited by the Court of First Instance, in which the Court of Justice held that the procedure for replacing the annulled measure may be resumed at the very point at which the illegality occurred. 186. In the appellant's submission, this assessment is confirmed by the judgment in Cimenteries CBR and Others v Com- 1) — Case C-415/96 Spam v Commission [1998] ECR I-6993. mission.

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187. Contrary to the grounds stated in of the College of Commissioners by making paragraphs 261 to 264 of the contested known their views on the necessity and judgment, the fundamental principle of expediency of adopting the PVC II decision, observance of the rights of the defence the lapse of time, the principle non bis in cannot be delimited, let alone restricted, by idem and the amendments to the rules Regulations Nos 17 and 99/63, on account applicable to the adoption of decisions. of the precedence of the general principles of Community law over secondary legis- lation.

189. In the appellant's submission, this view is tantamount to denying undertak- ings the right effectively to express their view on the applicable substantive and procedural rules, the case-law, the econ- omic background, etc., and is inconsistent 192. DSM claims, in that connection, that with the case-law of the Court of First the Court of First Instance was wrong to Instance24 and with that Court's findings hold that the PVC II decision contained no in paragraphs 1021 and 1022 of the con- new complaint in relation to the PVC I tested judgment, in respect of access to the decision. On the contrary, a comparison of file. the two measures reveals numerous differ- ences. Those differences were not merely of drafting, but constituted new facts or circumstances on which the undertakings should have been invited to state their views, without there being any need even to 190. Accordingly, in this case, the under- determine whether those new facts were to takings could have influenced the appraisal be classified as objections. The mere fact of those new facts arising is, the appellant argues, sufficient to entail a duty to hear 24 — Case T-36/91 ICI v Commission [1995] ECR II-1847. the undertakings.

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193. What are we to make of this line of 198. It is also provided that the Commis- argument? sion is to deal, in its decisions, only with those objections in respect of which the undertakings have been afforded the opportunity of stating their views.

194. It must be pointed out, first of all, as already shown above, that the validity of preparatory measures completed before the 199. It follows that, if the Commission's authentication of the text of the decision decision does not contain new objections in was unaffected by the annulment of the relation to those which formed the subject- PVC I decision. matter of the hearing of the undertakings, the regulations did not require another hearing to be held.

203. Instead, it tries to establish that the 207. In my view, such a claim reflects, on matter of whether or not the new features the contrary, too wide an interpretation of in the PVC II decision should be defined as the concept of rights of the defence. objections is irrelevant. In DSM's view, the mere fact that these new circumstances existed, and that the Commission intended to adopt a new decision, was sufficient basis for an obligation to hear the appellant again. 208. That conclusion is confirmed by the case-law of the Court of Justice 25 which shows that, as the appellant itself points out, the principle of the rights of the defence requires that the person against whom the Commission has initiated an administrative procedure must have been afforded the opportunity, during that pro- 204. As we have just seen, this claim is not cedure, to make known his views on the supported by Regulations Nos 17 and truth and relevance of the facts and circum- 99/63 since these require only that under- stances alleged and on the documents used takings be given the opportunity to express by the Commission to support its claim that their views regarding the objections made there has been an infringement of Commu- against them, not every new circumstance. nity law.

209. Observance of the rights of the defence therefore implies that the under- 205. However, the appellant correctly takings should have been able to put points out that the rights of the defence, forward their arguments with regard to observance of which is a general principle the acts they are alleged to have committed. of Community law, cannot be restricted by On the other hand, it does not go so far as measures of secondary legislation, such as to require that the undertakings should be the aforementioned regulations. consulted on all the other aspects of the Commission's action.

211. The fact that, since that period, there have been factual and legal developments has no relevance to the rights of the 215. The possibility of developments in the defence, which were guaranteed by the case-law with the passage of time does not hearing concerning the objections con- affect the above conclusions. Such develop- tained in the contested decision. ments, which the applicant has referred to but without any elaboration as to their content, may occur at any time in the proceedings and the Commission cannot be required to arrange a new hearing on every occasion. It is even more the case that such developments do not mean that the Com- 212. By contrast, the appellant's claim that mission is required to amend the decision it should be heard on all the subsequent which it is in the course of taking. developments, and on the necessity and expediency of the decision, falls rather within the scope of a right of co-decision which cannot arise from the rights of the defence.

219. The reference made by the Court of 223. Therefore, the only question is First Instance to Article 1 of Regulation whether the Commission was under a duty No 99/63 and to the precedent in Hoechst to consult the Advisory Committee for a v Commission 27 is, it maintains, incorrect. second time.

224. It is clear from the recitals to Regu- lation No 17 that the Commission carries 220. It adds that the Court of First Instance out its task in close conjunction with the also incorrectly held that there were no authorities of the Member States. substantial differences between the two Article 10 of the regulation expressly pro- decisions. In fact, the Commission had vides that the Advisory Committee is to made several significant amendments. It is deliver an opinion on a preliminary draft clear from the contested judgment that the decision. Court itself acknowledges that, if such amendments had been made, it would have been necessary to consult the Advisory Committee. 225. It follows that it does not necessarily have to be consulted on the definitive text. Moreover, this is confirmed by the recitals to Regulation No 99/63, which provide that the Commission may inquire into the case after the Advisory Committee has been 221. Finally, the Court failed to take consulted. account of the importance of the Commis- sion's obligation to cooperate with the other institutions. Consultation of the Advisory Committee ensures fulfilment of that obligation. 226. The fact remains that the consultation has no purpose if the final decision is 27 — Joined Cases 46/87 and 227/88 Hoechst v Commission fundamentally different from the text sub- [1989] ECR 2859. mitted to the Advisory Committee.

29 — Case C-392/95 Parliament v Cornial [1997] ECR I-3213, 28 — Paragraphs 56 to 58 of the decision. paragraph 15.

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234. It states that the decision should have 238. The contested decision must therefore contained reasons for the Commission's explain in sufficient detail the nature of the delay in adopting a decision, its procedural infringement which the person to whom it decision not to serve a fresh statement of is addressed is alleged to have committed, objections and hear the parties, the use of the reasons why the Commission considers documents discovered in the course of a that it has been committed and the obli- separate investigation or of evidence gations which it intends to impose on the obtained in breach of the right not to give addressee. evidence against oneself, the refusal to grant access to the file in accordance with the case-law, the imposition of a fine based on an error as to the facts and the con- clusion that the PVC I decision remained valid in respect of Norsk Hydro AS. 239. It is not at all clear from the line of argument developed by the appellant that the Commission failed to fulfil that obli- gation in the present case. Indeed, DSM does not claim that the text of the decision did not allow it to understand without any difficulty the nature of the complaints 235. In the appellant's submission, the made by the Commission or the way in Court did not give an adequate explanation which it justified them. for its rejection of that argument.

240. It must therefore be concluded that the appellant has not established that there 236. The appellant's argument is uncon- has been a breach of the Commission's duty vincing. to provide a statement of reasons.

Plea relating to the inviolability of the 243. If complaints such as those raised by home the appellant were proved to be well founded, it would be the justification for the decision that would be at issue. On the other hand, it does not follow that the 247. The appellant recalls that the Court of statement of reasons for the decision did Justice held, in its judgments in Hoechst v not allow the appellant to understand the Commission, cited above, Dow Benelux v measure taken against it and the reasons Commission 31 and Dow Chemical Ibèrica relied on to justify it, whether correctly or and Others v Commission, 32 that the not. principle of the inviolability of the home under Article 8 of the ECHR does not apply to commercial premises, but refers to subsequent case-law of the European Court of Human Rights 33 to the effect that the protection granted by that provision is also 244. The Court of First Instance did not afforded to business premises. say otherwise in paragraph 389 of the contested judgment, in which it states that the fact that the Commission gives no explanation in respect of the complaints referred to above cannot constitute insuffi- cient reasoning for the decision, since those 248. In the appellant's submission, the arguments are essentially concerned only Court of First Instance was wrong to with challenging the validity of the Com- consider that that development had no mission's assessment concerning those vari- direct impact on the solutions adopted in ous questions. Since such a challenge falls judgments by the Court of Justice. within the scope of an examination of whether the decision was justified, it can- not be relevant to an examination of whether the statement of reasons for the contested measure is adequate or not. 249. In the present case, the requirements of Article 8 of the ECHR, interpreted in the

253. That is what the appellant is seeking to establish in this case by suggesting that the case-law of the Court of Justice applied 250. The Court of First Instance examined by the Court of First Instance is superseded those two questions in the light of an by developments in the case-law of the incorrect legal criterion, taking as a basis a European Court of Human Rights. 'general principle of Community law' instead of applying Article 8 of the ECHR. It is for that reason that it did not hold that the investigations at issue were unlawful and that the Commission could not there- fore use the evidence thus obtained. 254. It relies, for this purpose, on para- graph 30 of the judgment in Dow Benelux v Commission,34 in which the Court of Justice held that Article 8 of the ECHR did not apply to business premises, and 251. I have already pointed out that it is contrasts it with the judgment of the clear both from the case-law and the Treaty European Court of Human Rights in Nie- that it is as a general principle of Commu- mietz v Germany. nity law that the Community respects fundamental rights such the inviolability of the home, enshrined in Article 8 of the ECHR. The Court of First Instance cannot therefore be criticised for having taken the appellant's plea to mean that there had been an infringement of a fundamental principle enshrined in the case-law of the 255. However, the appellant passes in Court of Justice. silence over paragraph 31 of the judgment in Dow Benelux v Commission, on which the Court of First Instance rightly based the statement made in paragraph 420 of its

'None the less, in all the legal systems of the Member States, any intervention by the public authorities in the sphere of private 259. In my view, it was hard put to activities of any person, whether natural or demonstrate it. I do not believe that either legal, must have a legal basis and be a reading of the ECHR or an examination justified on the grounds laid down by law, of the case-law cited substantiates such a and, consequently, those systems provide, conclusion. albeit in different forms, protection against arbitrary or disproportionate intervention. The need for such protection must be recognised as a general principle of Com- munity law.' 260. It is sufficient to note in that regard that the criteria used by the Court of Justice include the legal basis of the measure and its justification for reasons provided by law, not forgetting the wording of Article 8(2) of the ECHR which mentions 256. Accordingly, even though the Court 'interference... in accordance with the law' of Justice considered that Article 8 of the and 'necessary' in a democratic society. ECHR did not apply to business premises, it still did not hold that business premises were undeserving of protection; on the contrary, it specified the principles govern- ing that protection. 261. The appellant puts forward two further arguments which, it claims, show that there has been an infringement of its fundamental right in this case.

257. The Court of First Instance therefore rightly held that, since legal persons were, in any event, protected under Community law, developments in the case-law of the 262. Firstly, it alleges that the authority on European Court of Human Rights on that the basis of which the investigations at point did not have direct impact. issue were carried out was inordinately

265. It must be stated, however, that it provides no tangible evidence in support of this claim.

Plea alleging infringement of the right not to give evidence against oneself

266. It should also be noted that, unlike the confidentiality of its correspondence with its defence lawyer, which is covered by the 270. The appellant considers that it is clear latter's business confidentiality and which from the case-law of the European Court of it is not claimed has been affected in this Human Rights and also, implicitly, from

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the judgment in Baustahlgewebe v Com- The appellant claims that the Court there- mission that an undertaking accused of fore wrongly held, in paragraph 453 of the infringing Community competition law has contested judgment, that the illegality of the right not to give evidence against itself. the questions at issue, which was acknowl- edged in paragraph 451, did not have any impact on the legality of the PVC II decision.

272. In that regard, DSM states that, contrary to the view taken by the Court of First Instance, its action concerned not only the questions contained in the Com- 274. The Court of First Instance was also mission's decisions requiring information, wrong to hold, in paragraph 448 of the which were mentioned in paragraphs 451 contested judgment, that the undertakings to 453 of the contested judgment and to had had every opportunity to put their which it had not responded, but also the point of view concerning the documents replies given by ICI, BASF AG, Elf Ato- lodged in infringement of the right invoked, chem, Solvay and Shell International Chemical Company Ltd which had been specifically mentioned in the reply and had 35 — European Court of Human Rights, Saunders [1996], helped the Commission to gather proof. Reports of Judgments and Decisions, Scries 1996-1.

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since the prejudice against which that right 277. In the present case, the aforemen- was intended to offer protection had tioned replies given by ICI, BASF AG, Elf already been suffered. DSM refers, in that Atochem, Solvay and Shell International regard, to the judgments36 mentioned in Chemical Company Ltd could not therefore paragraph 446 of the contested judgment. be used by the Commission for evidential purposes.

275. Observance of the rights of the defence requires that documents obtained in infringement of those rights cannot be used for evidential purposes. The appellant 278. It should be noted, first of all, that, cites, in that respect, paragraph 34 of the contrary to the appellant's claims, it is not order of the President of the Court of apparent from any statement contained in Justice in Hoechst v Commission, 37 para- the contested judgment that the Court of graph 16 of the judgment in Ludwigsha- First Instance considered that its action fener Walzmühle Erling and Others v concerned only the questions which the Council and Commission 38 and also para- Commission had put to it and not the graphs 69 and 74 of the judgment in replies of other undertakings. Saunders, cited above.

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281. In fact the Court, in paragraph 454 of facts raised in them, a statement which the the contested judgment, without being appellant seems, furthermore, to confirm in contradicted by the appellant's pleadings, its appeal. held that the undertakings 'have not ident- ified any answer given specifically to those questions, or indicated the use made of those answers by the Commission in the Decision'.

285. There are therefore grounds for believing that the issue raised at the hearing concerns the replies to questions other than those covered by the case-law in Orkem v Commission, which are not the subject of paragraph 454 of the contested judgment. 282. In other words, the Court of First Instance found that the undertakings con- cerned did not, in actual fact, give evidence against themselves. Therefore, the infringe- ment of the principle had in any event no effect on their ability to defend themselves and, accordingly, was incapable of result- 286. In any event, in the appellant's view ing in the nullity of the decision. the distinction between the replies covered by the case-law in Orkem v Commission and the others is unimportant.

taking could never be required to provide 293. The appellant argues that the judg- information to the Commission. ment in Orkem v Commission is super- seded by the more recent case-law of the European Court of Human Rights, in particular the judgments in Funke v France and Saunders, cited above. 289. Therefore, Article 11(5) of Regulation No 17, which specifically establishes such a power of constraint, would be contrary to that fundamental right. 294. However, the Commission points out that this recent case-law is much more moderate than the appellant suggests. It notes, in that regard, that, in Funke v France, what was before the Court was a 290. This claim is clearly inconsistent with request by the customs authorities in the case-law of the Court of Justice and the relation to documents which they sus- Court of First Instance, which is correctly pected, but were not sure, existed, whereas, cited by the latter. in the present case, the Commission requested information which it was certain was in the possession of the undertakings concerned.

298. However, the appellant is not able to 302. Accordingly, it has not established demonstrate anything concrete in that that its right not to give evidence against respect. It merely points out that the itself has been infringed in this case, what- Commission used the replies given by some ever scope should be attributed to that of the other undertakings concerned in the right. proceedings.

303. It follows from the above that the plea 299. There are absolutely no grounds for alleging infringement of the right not to inferring that they were constrained to give evidence against oneself should be provide those replies. Even if the replies rejected. were given further to requests under Article 11(5) of Regulation No 17, a point on which the appellant gives no details, it does not follow that they were given under constraint.

Plea alleging infringement of Article 20(1) of Regulation No 17

300. The mere existence of a power of constraint, like the one established by that provision, cannot lead to the conclusion that constraint was actually exercised. On the contrary, the failure, on the part of the 304. The appellant points out that, under undertakings which are the addressees of Article 20(1) of Regulation No 17, infor- possible decisions requesting information, mation acquired as a result of the appli- to bring any action against those decisions cation of Articles 11, 12, 13 and 14 of the rather warrants the conclusion that those regulation 'shall be used only for the undertakings did not have fundamental purpose of the relevant request or investi- objections to those requests. gation'.

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313. The case-law of the Court of Justice 40 subject-matter or purpose thereof' (para- unquestionably shows that the Commission graph 18). is entitled to use documents obtained in one proceeding as evidence to open another proceeding. Furthermore, this is not dis- puted by the parties.

317. The provision therefore seeks to pro- tect undertakings from the element of surprise which would operate against them if the Commission were allowed to make 314. The question then arises to what use unlimited use of all the evidence found the Commission is entitled to put the during an investigation. documents it already has, once the new inquiry has been initiated.

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impossible to use them as evidence unless 323. The plea alleging infringement of they are covered by the safeguards provided Article 20(1) of Regulation No 17 should by Regulation No 17, namely the substan- therefore be rejected. tive and procedural conditions contained in Articles 11 and 14 of the regulation, com- pliance with which is subject to review by the Community judicature. In other words, it is a matter of preventing the Commission from bypassing those guarantees by (re)using the documents in another context, without carrying out the preliminary pro- cedures in that new context, thus depriving Plea alleging infringement of the rules the undertakings of the safeguards pro- applicable to access to the Commission's vided by the regulation. file

324. DSM points out that, during the 321. On the other hand, it would be wholly administrative procedure, it did not gain out of proportion with that objective to full access to the Commission's file; it was require the Commission, once the new granted access subsequently, at the time of proceeding had been initiated, to consign a measure of organisation of procedure to oblivion the document which indicated taken by the Court of First Instance during the need to initiate it. Furthermore, it is the proceedings, except for internal Com- hard to imagine, in practice, what form mission documents and documents con- should be taken by the new inquiry con- taining business secrets or other confiden- ducted by the Commission, compelled as it tial information. would be to undergo 'acute amnesia', to echo the expression used by the Court of Justice in its judgment in Asociación Españ- ola de Banca Privada and Others. 41

it is not necessary for the non-disclosure of 328. The Court therefore infringed its own the documents actually to have had an case-law and, furthermore, the general effect. It is enough that such a possibility principle of equality of arms, to which existed. paragraph 1012 of its judgment refers. According to the appellant, the right of equal access to the file which is to be inferred from Article 6 of the ECHR 44 only has meaning if simple finding of incomplete 326. The appellant also argues that, in access to the file results in the annulment of paragraph 1022 of the contested judgment, the Commission decision. the Court stated that an infringement of the rights of the defence occurring during the administrative procedure cannot be remedied in the proceedings before the Court of First Instance, which cannot be a substitute for a thorough investigation of the case in the course of the administrative procedure. 43 329. It is apparent from the above descrip- tion that the appellant, after having cited with approval the case-law of the Court of First Instance, according to which it is sufficient, for a finding of infringement of 327. DSM complains that, subsequently, defence rights, for it to be established that the Court of First Instance, contradicting non-disclosure of the documents in ques- the premisses thus stated, itself carried out tion might have influenced the course of the a meticulous examination of the documents procedure and the content of the decision to which the undertakings had not had to the applicant's detriment, is claiming access during the administrative procedure, that a mere finding of incomplete access to in order to determine whether their non- the file should result in the annulment of disclosure might have influenced the course the Commission decision. of the procedure and the content of the decision to the applicant's detriment. In the appellant's submission, the Court of First Instance thus, itself, acted as author of the inquiry and made a rectification a poster- iori. Furthermore, it had infringed the very principle which it had laid down, namely 330. This claim has no support in the that the simple finding that there was a case-law of the Court of First Instance possibility of influence to the appellant's invoked by the appellant. That shows, on detriment was enough to justify annulment. the contrary, that it is only when non- In those circumstances, the Commission disclosure of a document could have had every interest in denying access to the harmed the appellant's defence that it file, knowing that the position could may lead to the annulment of the Commis¬ always be rectified in subsequent legal proceedings. 44 — Sec the judgment of the European Court or Human Rights in Edwards [1992], Series A No 247 B, paragraph 36; and the Commission on Human Rights, Lynas v Switzerland, 43 — Subtly v Commission, cited above, paragraph 98, and ICI Application No 7317/75, Annuaire de la convention v Commission, cited above, paragraph 10S. européenne des droits de l'homme, p. 413.

333. Also, the principle of equal access to 337. The appellant, which does not claim the file which, according to the appellant, in its pleadings that the Court committed stems from Article 6 of the European Con- an error in the course of that verification, is vention on Human Rights, cannot imply therefore wrong to complain of the very that a Commission decision must be fact that it carried it out. annulled if the exercise of the rights of the defence has not been affected.

338. Admittedly, it was maintained at the 334. The Court of First Instance was there- hearing that the examination of the docu- fore right to hold, in accordance with its ments effected by the Court of First

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Instance in order to determine whether 342. Must it therefore be considered that there had been an infringement of defence the Court of First Instance did indeed use rights in this case was based on an incorrect an incorrect assessment criterion? approach.

339. It was argued that the Court, instead 343. I do not think so. In analysing docu- of looking at things from the perspective ex ments, the Court also used the terms ante of the undertaking, took, on the 'affected the applicants' defence' (para- contrary, an ex post approach. In other graph 1035 of the contested judgment), words, instead of examining whether the 'in what way their defence rights have been undertaking could have used the disputed affected' (paragraph 1036), 'affected the documents, it analysed whether the under- undertakings' defence' (paragraph 1041), taking's use of those documents could have and 'contain anything relevant to the culminated in the decision having a dif- applicants' defence' (paragraph 1073). ferent content from that which it eventually had.

347. I therefore consider that the Court complied, in its method of analysis, with the aforementioned case-law of the Court of Justice.

351. In any event, the appellant is careful not to identify any document which it could have used for its defence and in respect of which the Court of First Instance 348. Even if that were not the case, it is still had therefore wrongly held that non-dis- for the appellant to prove the existence of closure had not resulted in an infringement documents in respect of which the Court of of the rights of the defence. First Instance was wrong to hold that non-disclosure did not compromise the rights of the defence.

349. It could not just state in abstracto that 352. Accordingly, whatever criterion is the Court had followed an incorrect cri- followed, the appellant has not established terion. It was still necessary to prove that that the irregularity committed in respect of the consequence of that error was that a access to the file had the slightest effect on document which the Court had held could its opportunity to defend itself. not lead to the adoption of a different decision by the Commission could, on the contrary, have been relied upon by the undertakings.

353. It follows from the above that the plea 350. Furthermore, it is not possible to alleging infringement of the right of access interpret the case-law of the Court of to the file should be rejected.

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355. Under Article 3 of Regulation No 2988/74, the limitation period is to be suspended only if proceedings are brought against those of the measures mentioned in Article 2 which, being in the form of a decision, are subject to challenge. 358. DSM complains that the Court of First Instance held, in paragraph 1097 of the contested judgment, that it cannot be accepted that the word 'decision' used in Article 3 of Regulation No 2988/74 refers to the measures listed in Article 2 thereof. 356. The absence — in the list of measures Contrary to the Court's finding, the PVC I which interrupt the limitation period con- decision and the consequences of its annul- tained in Article 2(1) of Regulation ment do not fall within the scope of No 2988/74 — of the decision imposing Article 3 of Regulation No 2988/74 but of Article 6 of that regulation, which relates to suspension of the limitation 46 — OJ 1974 L 319, p. 1. period concerning enforcement. Since the

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action had culminated in the annulment of between the power to impose fines and the the PVC I decision, it had not, therefore, power to enforce the decisions imposing the suspended the limitation period in proceed- fines. It also seems not to wish to draw any ings. conclusion from the distinction, also made in the regulation, between the interruption and the suspension of the limitation period.

360. In that regard, it must be pointed out that this argument was expressly rejected by the Court of First Instance, and rightly 363. It follows that, contrary to the appel- so. It is founded, in fact, on a dual lant's claims, the fact that the decision confusion. In its reasoning, the appellant imposing a fine does not appear in Article 2 seems to have an inaccurate view of the of the regulation in no way indicates the distinction which the regulation makes legislature's express intention to exclude it.

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364. The reason why the Commission run a risk associated with the length of the decision finding an infringement and proceedings, but a suspension of the limi- imposing a fine does not appear in Article 2 tation period for the duration of the pro- is quite logical. The subject-matter of this ceedings. provision, as its heading also states, is the interruption of the limitation period in proceedings. Once the Commission has taken such a decision, it has, by definition, put an end to the proceedings. Therefore, 369. However, for there to be litigation, the question of a possible limitation of the there has to be a Commission measure open right to bring proceedings can no longer be to challenge before the Community court. raised, since that right has already been The 'decisions' referred to in Article 3 exercised. must, therefore, be challengeable measures.

that an action against a decision relating to that no provision in the regulation would a measure of inquiry would lead, under be applicable to the present case, that is to Article 3, to the suspension of the limi- say, the annulment of the decision imposing tation period, whereas an action against the the fine, which is all the more surprising decision imposing the fine would not. because, as the appellant itself points out, the first recital in the preamble to the regulation mentions the need to create a comprehensive set of rules.

373. The appellant tries to justify that difference, however, by arguing that the annulment of a decision imposing a fine is attributable to the Commission which therefore does not deserve to be protected 377. Although the appellant tries to avoid against limitation. that consequence by stating that Article 6 of the regulation is applicable in this case, merely reading that provision reveals immediately that the effort is futile.

374. However, it must be noted — as the Court of First Instance and the Commission point out — that the annulment of a Commission decision is always attributable 378. It is undoubtedly clear from the word- to that institution, whatever the decision in ing of that provision that it applies to the question. Whether it is a question of limitation period in respect of the enforce- measures of inquiry or of the imposition ment of a decision. This question can, by of fines, an annulment always involves an definition, be raised only when the decision error of law or fact on the part of the at issue has not •—· as in this case •— been Commission. annulled.

I I I— Conclusion

386. In the light of the foregoing considerations, I propose that the Court should:

— dismiss the appeal;

— order the appellant to pay the costs.

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