C-245/99

1 — Original language: French. 3 — OJ, English Special Edition 1963-1964, p. 47. 2 — OJ, English Special Edition 1959-1962, p. 87. 4 — OJ 1989 L 74, p. 1.

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for infringement of Article 85(1) of the EC 9. On appeal by the Commission, the Treaty (now Article 81(1) EC): Atochem Court of Justice, by judgment of 15 June SA, BASF AG, DSM NV, Enichem SpA, 1994 in Commission v BASF and Others,7 Hoechst AG (hereinafter 'Hoechst'), Hüls set aside the judgment of the Court of First AG, Imperial Chemical Industries pic (here- Instance and annulled the PVC I decision. inafter 'ICI'), Limburgse Vinyl Maatschap- pij NV, Montedison SpA, Norsk Hydro AS, Société Artésienne de Vinyle SA, Shell International Chemical Company Ltd, Sol- vay et Cie (hereinafter 'Solvay') and Wacker-Chemie GmbH. 10. The Commission thereupon adopted a 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 94/599/EC of 5. All those undertakings except Solvay 27 July 1994 relating to a proceeding brought actions to have that decision pursuant to Article 85 of the EC Treaty annulled by the Community judicature. (IV/31.865 — 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 6. The Court of First Instance declared decision. Norsk Hydro's application inadmissible by order of 19 June 1990. 5

burgse Vinyl Maatschappij NV, Mon- adherence to any express or tacit agreement tedison SpA, Société Artésienne de Vinyle or to any concerted practice covering price SA, Shell International Chemical [Com- or market-sharing inside the Community. pany] Ltd and Wacker-Chemie GmbH Any scheme for the exchange of general infringed Article 85 of the EC Treaty information to which the producers sub- (together with Norsk Hydro... and Sol- scribe concerning the PVC sector shall be vay...) by participating for the periods so conducted as to exclude any information identified in this Decision in an agreement from which the behaviour of individual and/or concerted practice originating in producers can be identified, and in par- about August 1980 by which the producers ticular the undertakings shall refrain from supplying PVC in the Community took part exchanging between themselves any addi- in regular meetings in order to fix target tional information of competitive signifi- prices and target quotas, plan concerted cance not covered by such a system. initiatives to raise price levels and monitor the operation of the said collusive arrange- ments.

Article 3

Article 2

(vi) Hüls AG: a fine of ECU 2 200 000; B — Procedure before the Court of First Instance

12. By various applications lodged at the (vii) Imperial Chemical Industries pic: a Registry of the Court of First Instance fine of ECU 2 500 000; between 5 and 14 October 1994, Lim- 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.

13. Each sought the annulment of the PVC (ix) Montedison SpA: a fine of ECU II decision in whole or in part and, in the 1 750 000; alternative, the annulment or reduction of

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the fine. Montedison Spa also pleaded that — dismissed the remainder of the action; the Commission should be ordered to pay damages on account of costs incurred in putting together a guarantee and any other expenses arising from the PVC II decision. — ruled on the costs.

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— order the Commission to pay the costs application, alleging infringement of of the proceedings at first instance and Article 172 of the EC Treaty (now on appeal. Article 229 EC) and Article 17 of Regu- lation No 17 read in conjunction with Article 87(2)(d) of the EC Treaty (now, after amendment, Article 83(2)(d) EC).

17. The Commission contends that the Court should:

20. The appellant points out that Article 172 of the Treaty and Article 17 — dismiss the appeal; of Regulation No 17 give the Community judicature unlimited jurisdiction to review decisions, that is, an unlimited power to evaluate the evidence. It submits that, since Article 17 of Regulation No 17 confers in — order the appellant to pay the costs of particular on the Community judicature the the proceedings at first instance and on power to cancel, reduce or increase the fine, appeal. the Commission does not retain that power after its decision has been challenged. The point is that the power to evaluate the evidence is definitively transferred to the Community judicature. According to Mon- tedison, if the Commission is not sure that its decision does not contain a formal defect, it should submit an alternative claim II — Assessment on the merits, before the Court hearing the case, that the other party should be fined an equal or higher amount since that Court can rule only on the forms of order sought 18. The appellant puts forward nine pleas by the parties and the Commission no in support of its appeal. longer has the power to adopt a decision.

28. I should add that the appellant's argu- ment reflects a misunderstanding of the notion of unlimited jurisdiction, which, in fact, refers to the extent of the powers of the Community judicature hearing an 24. In particular, by establishing in para- application for annulment. It indicates that graphs 77 et seq. and paragraph 95 et seq. the Court is entitled to substitute its assess- that the matter should be analysed in terms ment for that of the Commission and of the consequences of the annulling judg- therefore to replace the Commission's ment, consequences which depended on the decision with another. grounds of annulment, the Court, implicitly but necessarily, rejected the appellant's argument that the mere fact that the case was brought before the Community judi- cature had the consequence of depriving the Commission of any decision-making 29. However, it does not inevitably follow power. that, if the Community judicature has not exercised that power, like the Court of Justice in its 1994 judgment, the Commis- 9 — Case 14/81 Alpha Steel v Commission [1982] ECR 749. sion is divested of it. There is no essential

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link between the Court's ability to sub- 34. Therefore, by using the concept of stitute its assessment for that of the Com- unlimited jurisdiction to dispute the exist- mission and the Commission's inability to ence of a power to adopt the decision, adopt a decision if the Court has not which is a prerequisite for determining the exercised that power. appropriate level of a possible fine, the appellant affords that concept a scope which it does not have.

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there had been an administrative procedure 42. Accordingly, I make the following leading to the adoption of the PVC II observations only in the alternative. decision. That plea had been understood by the Court to allege an infringement of the rights of the defence whereas, in fact, it has a much wider scope.

43. The fact that the Court of First Instance interprets the appellant's plea in one way rather than another cannot be considered as a failure to state reasons. It may be that 38. In the heading of its plea, the appellant the statement is marred by an error of law alleges a failure to state reasons. However, but the fact that a statement of reasons may it is apparent from its arguments, which are be incorrect still does not mean that it is summarised above, that, in actual fact, it is non-existent. claiming that the Court of First Instance misunderstood its plea.

44. In that regard, the heading of the plea also contains a reference to an infringement 39. The fact remains, as the Commission of Articles 18 and 19 of Regulation No 17 states, that the appellant does not cite any and Articles 1 and 11 of Regulation paragraph or part of the judgment which is No 99/63. particularly relevant. It therefore does not specify in any respect from which state- ments in the judgment it infers the error committed by the Court of First Instance.

45. In that context, the appellant submits, in essence, that the Commission was required to state its reasons for opting to take a new decision, even though it had the 40. The Court has consistently held that an same content as the PVC I decision. appeal must indicate precisely the contested According to the appellant, it should have elements of the judgment which the appel- explained the Community's continued lant seeks to have set aside. 10 interest in pursuing the accused in respect of events dating from 10 years previously and allowed the undertakings to express their views on that new point.

C — Failure to consider the economic context 48. It is not disputed that, in the present case, the decision whether or not to adopt a new measure lay within the discretion enjoyed by the Commission in implement- 52. Montedison complains that the Court ing Community competition policy. of First Instance did not carry out the examination of the economic context which must be undertaken prior to any decision in respect of competition, particu- larly if the decision imposes a fine. 12 49. Of course, it is important to distin- guish, in that context, between the obli- gation to state reasons for the act of adopting the measure, which is the subject- matter of the plea raised by the appellant, and the obligation to state reasons for the 53. The Court merely summarised, in a few content of the decision, which the appellant lines in paragraph 736 of the contested does not claim has been infringed and judgment, the appellant's argument attribu- which means that the decision must state, ting the practices complained of to the oil in sufficient detail, the nature of the crisis which, in a few years, had caused infringement its addressee is alleged to more than half the PVC producers to have committed, the reasons why the withdraw from the sector. Against that Commission believes that the infringement background, it was perfectly reasonable, has occurred and the obligations it intends and also essential, for there to be contacts to impose on the addressee. between the PVC producers. They were simply intended to minimise the losses.

50. The Commission was not, therefore, required to give reasons for choosing to 54. The Court of First Instance was there- adopt a new decision or, a fortiori, to hear fore wrong to hold, in paragraph 740 of the the undertakings on the matter. contested judgment, that, whilst such a

It is well established that for the purpose of applying Article 85(1) of the Treaty there is no need to take account of the actual effects 58. The fact that the producers may have of an agreement once it appears that its aim considered cartels desirable in order to is to prevent, restrict or distort competition

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within the common market (see, in par- that the Commission has to prove that the ticular, Joined Cases 56/64 and 58/64 level of the transaction prices would have Consten and Grundig v Commission been lower had there not been collusion. 13 [1966] ECR 299, at page 342). Therefore, in so far as the applicants' plea is to be understood as requiring that it be shown that competition has actually been affected, even though the anti-competitive aim of the conduct complained of is established, it cannot be accepted.' 63. The Court made that statement in the context of a case in which the Commission had claimed that the cartel had had an effect on prices. Therefore, it was up to the Commission to prove it. On the other hand, it cannot in any sense be inferred that only agreements which have an anticompetitive effect constitute an infringement of the 60. The Court of First Instance also pro- Treaty, while those whose aim is to restrict vides us with an answer to the appellant's competition but which, for one reason or argument that the Commission should have another, have not had that effect, therefore shown the effect of the cartel on market escape the prohibition contained in prices. Article 85(1) of the Treaty.

70. The same objection must be made, mutatis mutandis, to the appellant's com- plaint that the Court of First Instance wrongly found that the fixing of European 67. Since that argument is designed to target prices had necessarily had an impact criticise the Court of First Instance for not on competition in the PVC market and that annulling the decision on that basis, it must the buyers' room for negotiation had there- be stated that the Court considered that it fore been reduced. was apparent from the body of evidence supplied by the Commission and cited in the decision that those meetings had an anticompetitive object, 14 which necessarily means that unlawful activities were being pursued. 71. Finally, Montedison claims that 'the equation which forms the basis of the Court's judgment: meetings between pro- ducers = price initiatives = exchange of strategic information = allocation of mar- ket shares, is unlawful'. It cites, in that regard, paragraph 119 of the judgment in 68. It is not the responsibility of the Court Buchmann v Commission. 16 of Justice, hearing the case on appeal, to call in question the assessment of the 15 — See, as an example of settled case-law, Case C-315/99 P Ismeri Europa [2001] ECR I-5281, paragraph 48. 16 — Case T-295/94 Buchmann v Commission [1998] ECR 14 — Paragraphs 679 to 686 of the contested judgment. II-813.

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75. Montedison complains that, in para- graphs 1089 et seq. of the contested judg- ment, the Court of First Instance mis- applied the provisions of Regulation (EEC) 79. The Commission points out — rightly, No 2988/74 of the Council of 26 Novem- in my view — that there is no objective ber 1974 concerning limitation periods in proceedings and the enforcement of sanc- tions under the rules of the European 17 — OJ 1974 L 319, p. 1.

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justification for that fear since a measure 83. Admittedly, the appellant tries to avoid may be repeated only if it has been annulled that consequence by stating that Article 6 solely on procedural grounds and after of the regulation is applicable in this case. resumption of the procedure at the point Merely reading that provision reveals immediately after the step which was found immediately that the effort is futile. to contain a formal defect.

84. It is undoubtedly clear from the word- ing of that provision that it applies to the 80. We should also bear in mind that, limitation period in respect of the enforce- under Article 3 of Regulation No 2988/74, ment of a decision. This question can, by 'the limitation period in proceedings shall definition, be raised only when the decision be suspended for as long as the decision of at issue has not — as in this case — been the Commission is the subject of proceed- annulled. ings pending before the Court of Justice of the European Communities'. This wording seems sufficiently clear as to leave no room for doubt.

85. It follows that Article 6 of the regu- lation is clearly inapplicable to the present case.

88. Let us note, at the outset, that the 92. Finally, the appellant disputes the rel- appellant's second claim contains an evance of the measures found by the Court obvious contradiction. The appellant of First Instance to have interrupted the claims that the statement is made even limitation period. It criticises the Court for assuming the Court's reasoning to be cor- having held that the investigations carried rect. However, the statement itself is cor- out by the Commission in respect of ICI, rect only if it is considered that the Shell International Chemical Company Ltd application against the PVC I decision did and DSM on 21, 22 and 23 November not suspend the limitation period during 1983 interrupted the limitation period in which the Commission was entitled to respect of the appellant. It maintains that bring proceedings and therefore that the those investigations cannot have had that Court's argument in that regard is incor- effect since it had sold its PVC branch 10 rect. months earlier.

89. Against that background it is sufficient 93. That assessment is incorrect. By defini- to refer to the verification carried out by tion, the limitation period in proceedings the Court of First Instance in paragraph exists in respect of an undertaking which is 1101 of its judgment, which shows that if, the subject of those proceedings, that is to in accordance with the Court's argument, say, an undertaking alleged to be liable for which I support, it is considered that the the infringement for which the action is limitation period is suspended during the brought. legal proceedings, the Commission's power to impose fines was not time-barred on 27 July 1994, the date on which the PVC II decision was adopted.

95. The mere fact that Montedison sold its 99. Therefore, this argument should also be PVC branch before certain investigations rejected and, consequently, the whole of were made in connection with the PVC this plea. infringement proceedings therefore in no way implies that it cannot be the subject of proceedings relating to the activities of that branch and, on that basis, be affected by the interruptive effect of those investi- gations on the limitation period. E — Infringement of the right to a fair hearing, Articles 48(2) and 64 of the Rules of Procedure of the Court of First Instance, and breach of the principle that liability is personal, on account of the way in which 96. Montedison also argues, in that regard, the oral procedure was organised that the interruption of the limitation period requires the existence of a record of notification or written authority to carry out an investigation. However, the exist- 100. Montedison maintains that the invi- ence of those documents, prior to the tation to present a joint oral defence at the statement of objections, was not estab- hearing, issued persistently by the Court of lished. First Instance, was not compatible with the right to a fair hearing enshrined by Article 6 of the European Convention for the Protection of Human Rights and Fun- damental Freedoms of 4 November 1950 and that Article 54 et seq. of the Rules of Procedure do not provide for a collective 97. Reference should be made in that joint defence. regard to Article 2 of Regulation No 2988/74 which defines measures inter- rupting the limitation period as 'any action taken by the Commission, or by any Member State, acting at the request of the 101. In order to conduct such a defence it Commission, for the purpose of the pre- might be necessary to exclude from the liminary investigation or proceedings in defence certain arguments, evidence and respect of an infringement'. contentions which are not common to all the appellant undertakings. To impose it would also be tantamount to presuming that the guilt of those undertakings had been established.

109. That criticism flagrantly contradicts the statements made in the contested judg- ment, from which it appears, on the 104. Since it does not adduce the slightest contrary, as the Commission rightly points evidence to support its claims, this com- out, that the Court examined in detail the plaint should be rejected. evidence put forward by the appellant.

110. Accordingly, it drew attention, at several points in its judgment, to the 105. Montedison also maintains that, in appellant's argument relating to the lack the present case, the result of conducting a of probative value of the evidence sub- joint defence would have had the con- mitted by the Commission 18 and to the fact sequence of the Court totally overlooking that the appellant was not mentioned in two of its main arguments, as is evident from the first and second grounds of appeal. 18 — See, in particular, paragraphs 574, 576 and 579.

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some of the documents the Commission 114. The appellant's claim that, in the end, supplied. 19 It also made a detailed study of the Court found only one piece of evidence the documents in the case concerning the against it and examined only one of its appellant's participation in the infringe- arguments concerning the evidence favour- ment. 20 able to it is therefore incorrect.

111. Therefore, I cannot agree with the appellant's view that the Court did not 115. The same is true of Montedison's trouble to examine its arguments. On the claim that, in the course of that examin- contrary, it is difficult to avoid the impres- ation, the Court committed an error. sion that the actual subject of the appel- lant's complaint is not the Court's failure to carry out an examination but rather the conclusion it reached.

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question of evidence of its participation in volumes between producers, is the tran- the infringement, raised in its plea. scription of a message sent by the director of Montedison's petrochemical division (see paragraphs 599 to 601 above), which proves that, contrary to what it alleges, Montedison was involved in the infringe- 119. However, the appellant omits to men- ment.' tion paragraphs 901 and 902 of the con- tested judgment in which the Court expressly examined the question of evi- dence relating to the statements made by ICI and BASF and to the change in Mon- 121. The Court therefore, unquestionably, tedison's PVC activities. examined the appellant's argument cor- rectly.

120. The Court of First Instance stated as follows: 122. As regards the argument concerning Articles 64 et seq. of the Rules of Procedure of the Court of First Instance, it must be stated that those provisions in no sense exclude the possibility that the Court of 'It is true that ICI and BASF referred to First Instance may suggest that the parties Montedison rather than Montedipe, which avoid repetition by submitting identical took over Montedison's PVC production arguments jointly. Indeed, that may be activity on 1 January 1981. It does not considered a measure intended 'to ensure follow, however, that Montedison did not efficient conduct of the written and oral participate in the infringement after that procedure' within the meaning of date. Article 64(1) of the Rules of Procedure of the Court of First Instance.

129. It must also be stated, at this point too, that the Court examined in detail the 125. Let us note in passing that the ques- question whether the available evidence tion of evidence of the quotas, which is justified the Commission's conclusions as examined on pages 44 and 45 of the said regards the existence of quota systems 21 application and not pages 46 and 47, is and price initiatives. 22 In that context, it treated in considerably less detail in the specifically examined, in paragraph 659 of application than in the appeal. That said, its judgment, the issue of the effect of the the reference in the application is sufficient evidence establishing the existence of keen to justify the conclusion that this is not a competition between the producers. It also new plea. pointed out, in paragraph 1062 of its judgment, that the Commission had taken due account of the difficulty in implement- ing the cartel and particularly of the exist- ence of the 'aggressive' behaviour of some producers. 126. In any event, it must be stated, as the Commission points out, that, in paragraph 896 of the contested judgment, the Court gives a very detailed description of the points raised by Montedison in its appli- cation. Its reply is given in paragraphs 903 and 904 of the judgment.

130. The Court then considered that matter and also, implicity but necessarily, responded to the appellant's reliance on the 127. Therefore, I cannot agree with the appellant when it claims that the Court did 21 — Paragraphs 584 to 617 of the contested judgment. not take its arguments into consideration. 22 — Paragraphs 637 to 661 of the contested judgment.

133. Montedison maintains that the four documents in question illustrate the dis- astrous fall in prices in Italy, the aggres- siveness of the competition and the fact that foreign undertakings were not informed of the state of the Italian market. 131. The Court of First Instance cannot, subject to its obligation to observe general principles and the Rules of Procedure relating to the burden of proof and the adducing of evidence and not to distort the true sense of the evidence, be required to give express reasons for its assessment of 134. The appellant alleges, in that regard, the value of each piece of evidence pres- infringement of Article 48(2) of the Rules ented to it, in particular where it considers of Procedure of the Court of First Instance that that evidence is unimportant or irrel- relating to the prohibition against the evant to the outcome of the dispute. 23 introduction of new pleas. The appellant itself states, however, that it was not a question, in the present case, of putting forward a new plea but of substantiating a plea already raised. There cannot therefore be an infringement of Article 48(2), since that provision applies only to the intro- duction of new pleas. 132. Furthermore, in paragraphs 1009 and 1028 of the contested judgment, the Court had refused to allow the appellant to put in evidence four new documents in its favour, with which it had become acquainted during a measure of organisation of pro- cedure relating to access to the Commis- 135. Nor is it possible to infer a fortiori sion's file. According to Montedison, the from that provision, as the appellant Court was wrong to hold that, since the infers — on the pretext that it was a appellant had not raised pleas relating to question of substantiating an existing plea access to the administrative file, it was not and not putting forward a new one — a appropriate to take account of observations right to make any observations which the appellant considers appropriate. Indeed, such observations can be made only in 23 — Case C-237/98 P Dorsch Consult v Council and Commis- compliance with the other provisions of the sion [2000] PCR I-4549. Rules of Procedure, such as Article 48(1).

141. In any event, it should be pointed out that, of the four documents concerned, two were examined by the Court anyway because they were mentioned by another 138. That said, the situation was different party. Furthermore, the matters which the in the present case, since the appellant's appellant claimed the documents con- observations, annexed to the appeal, which tained, namely the developments in the the Court of First Instance refused to take Italian market, were considered in detail by into account, were not presented as further the Court, particularly in its examination of evidence but were lodged in connection the Solvay document. 25 with a measure or organisation of pro- cedure before the Court of First Instance, to enable the Court to assess the undertakings' 24 — Paragraph 1023 of the contested judgment. pleas concerning access to the file. In 25 — See paragraphs 629 to 635 and 905 of the contested deciding to adopt that measure, the Court judgment.

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142. The appellant has not therefore estab- and that they were the average selling lished in what respect the Court's rejection prices for the periods in question. of its documents had the slightest impact on the Court's decision.

146. That argument is clearly inadmissible. It is not for the Court of Justice, hearing a 143. Since a breach of procedure could not, case on appeal, to review the assessment of in any event, lead to annulment unless it the evidence carried out by the Court of were proved that it had harmful con- First Instance, save in the event of dis- sequences for the appellant, 26 quod non, tortion, which is not alleged in the present this argument should be rejected. case.

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G — Infringement of Articles 10(1) and 154. That provision seeks to prevent an 32(1) of the Rules of Procedure of the even number of judges of the Court of First Court of First Instance Instance from sitting. In that situation, it does not matter whether a prevention is final or temporary. Even an absence or prevention which is brief but occurs, for 150. Montedison states that one of the example, at the time of the hearing, may judges of the enlarged chamber hearing the render it necessary to make sure that an case, who had left his post seven months even number of judges is not sitting. before the judgment was delivered, had been wrongly held to be 'absent' or 'pre- vented from attending' within the meaning of Article 32(1) of the Rules of Procedure and was not replaced at the appropriate time. 155. I therefore see no reason to consider that the term 'prevention' within the mean- ing of Article 32(1) of the Rules of Pro- cedure of the Court of First Instance does 151. However, I fail to see in what respect not include the prevention which occurs the Court of First Instance —which, more- when a judge comes to the end of his term over, acted in accordance with its settled of office. case-law 28 — was wrong to hold that the expiry of a term of office constituted absence or prevention from attending within the meaning of that provision.

156. This plea should therefore be rejected.

152. It is not apparent from the wording of that provision that it does not apply in circumstances such as those of this case.

162. The situation is similar as regards discrimination. The amount of the fine was determined in the same way as for the other undertakings, that is to say, by taking into 159. The discriminatory nature of the fine account in particular the established dur- stems, in the appellant's submission, from ation of the undertaking's participation in the fact that, on the one hand, Montedison the cartel. had been treated in the same way as the other undertakings concerned which, how- ever, had been active in the sector during the whole of the period in dispute, and, on the other, it had not been granted a reduction in the fine, unlike three other undertakings. 163. If some producers obtained a reduc- tion in fine, it is because the Court found, after examining the evidence, that the duration of their participation had not been as long, or their market share as 160. The appellant's argument is based on large, as implied by the Commission's a false premiss. In fact, it considers as decision. In the case of Montedison, the established the fact that its participation in examination of the evidence did not lead to the infringement was on an altogether such conclusions or reveal other reasons for different scale from that stated in the reducing the fine and, therefore, inevitably, decision and draws the reasonable con- did not warrant a reduction.

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164. This plea should therefore be rejected. ancing that amount and that of the damage suffered, which was attributed to the Com- mission's action.

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cation shall contain 'a summary of the 171. I cannot see any basis for that claim pleas in law on which the application is other than the criticisms formulated by the based'. appellant in its application. Treatment of the claim was therefore inevitably linked to treatment of the criticisms, and these were rejected by the Court.

170. I should add that the Court was also right in stating that, even if the wrongful conduct imputed to the Commission cor- responds to the complaints made by the appellant, the overall rejection of those complaints necessarily means that there is 172. It is apparent from the above that this no basis for the claim for compensation. plea should be rejected.

Conclusion

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