C-247/99

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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LIMBURGSE VINYL MAATSCHAPPIJ AND OTHERS v COMMISSION

SA, BASF AG, DSM NV, Enichem SpA, 9. On appeal by the Commission, the Hoechst AG (hereinafter 'Hoechst'), Hüls Court of Justice, by judgment of 15 June AG, Imperial Chemical Industries pic (here- 1994 in Commission v BASF mid Others,7 inafter 'ICI'), Limburgse Vinyl Maatschap- set aside the judgment of the Court of First pij NV, Montedison SpA, Norsk Hydro AS Instance and annulled the PVC I decision. (hereinafter 'Norsk Hydro'), Société Arté- sienne de Vinyle SA, Shell International Chemical Company Ltd, Solvay 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 5. All those undertakings except Solvay [Commission Decision 94/599/EC of brought actions to have that decision 27 July 1994 relating to a proceeding annulled by the Community judicature. pursuant to Article 85 of the EC Treaty (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

11. The PVC II decision contains the fol- lowing provisions: 7. The other cases were joined for the purposes of the oral procedure and the judgment.

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

Article 3 Article 2

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

(vii) Imperial Chemical Industries pic: a 12. By various applications lodged at the fine of ECU 2 500 000; Registry of the Court of First Instance between 5 and 14 October 1994, Lim- burgse Vinyl Maatschappij NV, Elf Ato- chem SA (hereinafter 'Elf Atochem'), BASF AG, Shell International Chemical Company Ltd, DSM NV and DSM Kunststoffen BV, (viii) Limburgse Vinyl Maatschappij NV: a Wacker-Chemie GmbH, Hoechst, Société fine of ECU 750 000; Artésienne de Vinyle SA, Montedison SpA, ICI, Hüls AG and Enichem Spa brought actions before the Court of First Instance.

(ix) Montedison SpA: a fine of ECU 1 750 000;

13. Each sought the annulment of the PVC II decision in whole or in part and, in the alternative, the annulment or reduction of (x) Société Artésienne de Vinyle SA: a fine the fine. Montedison Spa also pleaded that of ECU 400 000; the Commission should be ordered to pay

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OPINION OF MR MISCHO — CASE C-247/99 P

— annulled Article 1 of the PVC II — set aside the contested judgment and decision in so far as it found that give a final ruling in the case; Société Artésienne de Vinyle SA had participated in the infringement com- plained of after the first half of 1981;

— order the Commission to pay the costs.

— reduced the fines imposed on Elf Ato- chem, Société Artésienne de Vinyle SA and ICI to EUR 2 600 000, EUR 135 000 and EUR 1 550 000 respec- 17. The Commission contends that the tively; Court should:

8—Joined Cases T-305/94, T-306/94, T-307/94, T-313/94, T-314/94, T-315/94, T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maats- chappij and Others v Commission [1999] ECR II-931. — dismiss the appeal;

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LIMBURGSE VINYL MAATSCHAPPIJ AND OTHERS v COMMISSION

25. The first two limbs relate to the need to 20. In that regard it should be stated that, carry out preparatory measures, namely, in paragraph 257 of the contested judg- the hearing of the undertakings and the ment, the Court held that 'the Decision consultation of the Advisory Committee, contains only editorial amendments not before adopting the PVC II decision. affecting the objections'. Assessment of these therefore depends on

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whether the preparatory measures carried 28. The question of the effects of the out previously, for the purpose of the PVC I annulment of a decision on the validity of decision, retained their validity, which is the preparatory acts depends, as the Court the subject of the third limb of this plea. of First Instance rightly held in paragraph The third limb should therefore be exam- 184 of the contested judgment, on the ined first. grounds of annulment, and the appellant does not dispute this.

The third limb, alleging that the whole of the PVC I decision was annulled by the judgment in Commission v BASF and 29. That statement, which, moreover, Others, cited above merely reflects the application to this case of the general principle of res judicata, is confirmed by the case-law cited by the Court of First Instance and by the case-law invoked by the appellant itself.

26. Elf Atochem states that that judgment annulled the PVC I decision for infringe- ment both of the authentification rules and of the principle of collegiality. The annul- ment declared applies to the whole meas- ure, since the Court of Justice did not limit 30. Indeed, in the precedents cited by the its scope to certain parts. The preliminary appellant, the nullity of the Commission's administrative procedure is an integral part decision arose — unlike in the present of the measure. Therefore, if the measure is case — from a procedural defect affecting annulled, it is necessary to carry out again measures taken prior to the final adoption the preliminary administrative measures of the text and therefore imposed an provided for in Regulations Nos 17 and obligation on the author of the decision to 99/63. remedy the invalidity affecting the prepara- tory measures.

32. In British Aerospace and Rover v Commission, what was at issue was the adoption by the Commission of a new decision in respect of State aid in the 36. Indeed, neither of those two grounds of context of disputes relating to the imple- nullity affects measures predating the final mentation of previous decisions and not the decision. A failure to authenticate the text consequences of a judgment annulling a of the decision, and an infringement of the measure. Unlike in the present case, there principle of collegiality occurring at the was new evidence which might make a new time of its final adoption, are both, by their procedure necessary. very nature, unconnected with the previous conduct of the procedure and cannot there- fore affect its validity. The fact that those grounds of nullity affect the whole of the decision is irrelevant in that regard, since it does not follow that the nullity extends to 33. The Court of First Instance was there- other measures, such as the preparatory fore right to hold that it was necessary to measures. determine, in the light of the operative part and of the grounds of the judgment of the Court of Justice in respect of the PVC I decision, the effect of the annulment of that decision on the preparatory acts. 37. The situation was therefore similar to that considered in the judgment in Spain v Commission, 11 cited by the Court of First Instance in paragraph 184 of the contested 34. That annulment arose from the mere judgment, in which the Court of Justice fact that the Commission infringed the held that the procedure for replacing the procedural rules governing only the annulled measure may be resumed at the detailed procedure for the definitive adop- very point at which the illegality occurred. tion of the decision. Therefore, the nullity could not extend to the procedural stages which predated the occurrence of that irregularity and to which those rules were not intended to apply. 38. The Court of First Instance did not, therefore, err in law by holding that the nullity of the PVC I decision did not extend to the measures taken prior to the annulled decision. 35. The appellant's insistence that the annulment, which it claims applies to the whole measure, is due not only to that 11 — Case C-415/96 Spam v Commission [ 1998] LCR I-6993.

42. The second difference arises from the fact that, in the PVC II decision, the Commission, significantly, bases its objec- tions on the actions taken collectively by undertakings, amongst which Norsk Hydro and Solvay are still listed, even though 40. Elf Atochem considers that, for the those two companies are not addressees of purpose of adopting the PVC II decision, that decision. So, paradoxically, the con- the Commission should have applied Regu- duct of those companies, which are third lations Nos 17 and 99/63 again because parties as regards the PVC II decision, is that decision was not only taken six years still taken into consideration by the Com- after the PVC I decision, that is to say, in a mission in order to determine the extent of substantially different economic context, the infringement alleged against the under- which gave a reason for hearing the parties, takings which are the addressees of the but also contains new factors in relation to PVC II decision. The PVC I and PVC II the earlier decision. decisions therefore relate to supposed car- tels and/or collective concerted practices, whose members referred to in 1994 are different from those implicated in 1988.

41. The first difference lies in the fact that the addressees of the PVC II decision are not the same as those of the PVC I decision. 43. I agree with the Commission that this The grounds and operative part of the PVC line of reasoning is the result of a misunder- II decision single out Norsk Hydro and standing of the legal nature of the Com- Solvay, which are not censured, the Com- mission's decision. As the Court of First mission stating in point 59 of the decision: Instance pointed out in paragraph 167 of 'Since Solvay did not make an application the contested judgment, although the to the Court of Justice for the annulment of decision is presented in the form of a single the [PVC I decision], and Norsk Hydro's measure, it is in fact a series of individual

12 — Case C-310/97 P Commission v AssiDomän Kraft Prod- ucts and Others [1999] ECR I-5363. 13 — See points 56 to 58 of the decision.

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not add a new objection. The new decision decisions deal only with those objections in therefore relates only to actions on which respect of which the parties have been the undertakings had the opportunity to afforded the opportunity of making their express their views. views known.

51. The fact that the Commission supple- ments its arguments at a later stage is 55. It considers, therefore, that any Com- therefore permissible without it being mission decision finding an infringement necessary to hear the undertakings again, should be preceded by its own preliminary as is apparent from the case-law of the procedure. Court of Justice. 14

56. It must be pointed out in that regard 52. However, the appellant's arguments that, as indicated above, the validity of reveal that whether or not there are new preparatory measures completed before the objections, or even simple differences authentification of the text of the decision between the two decisions, is not, in its was unaffected by the annulment of the view, in any way decisive. decision.

66. It should be remembered, in that regard, that the PVC II decision relates only to acts carried out between 1980 and 62. Compliance with that objective does 1984, in respect of which the undertakings not preclude those objections from having were fully able to express their views. already appeared in a previous decision, if that previous decision was, as in the present case, annulled without the annulment affecting the preparatory measures. 67. Therefore, the right to be heard was fully observed, notwithstanding possible subsequent developments in the factual and legal situation. That right cannot be 63. However, Elf Atochem claims in the considered to imply that the Commission is alternative that if the Commission's obli- required to give the undertakings the gation to hear the parties again does not opportunity to make observations in arise under Regulations Nos 17 and 99/63, respect of other aspects of the Commis- it is, in any event, a consequence of the sion's action, such as the exercise of its

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power to assess the expediency of a 71. It follows from the above that the first decision. limb of this plea should be rejected.

15 — Musique Diffusion française and Others v Commission, 74. Accordingly, the second limb of this cited above, paragraph 35. plea should be rejected.

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LIMBURGSE VINYL MAATSCHAPPIJ AND OTHERS v COMMISSION

The fourth limb, alleging infringement of connection with Articles 85 and 86 of the the right of access to the file Treaty, but only as far as concerns State aid. 16 In that context, the solution is explained by the privileged position of the Member States in relation to the Commis- sion and the interested parties. The situ- 75. Elf Atochem maintains that the Com- ation is therefore not comparable with that mission did not spontaneously offer the of the procedures designed to find infringe- undertakings access to the evidence it had, ment of Article 85 by an undertaking. whether in their favour or otherwise, even though the conditions of access to the file had been extended between 1988 and 1994. 79. In any event, according to Elf Atochem, infringement of the principle audi alteram partem is constituted even if the undis- closed documents have not been used 76. The appellant claims that the examin- directly by the Commission. ation of the documents finally made access- ible in connection with a measure of organisation of procedure taken by the Court of First Instance revealed very seri- ous infringements of the principle audi alteram partem inasmuch as certain docu- ments in the appellant's favour had not 80. What are we to make of this line of been disclosed and that, on other docu- argument? ments which had been disclosed, evidence in the appellant's favour had simply been concealed by the Commission.

87. However, in paragraph 81 of its judg- ment in Hercules Chemicals v Commission, cited above, the Court of Justice expressly held that 'the undertaking concerned does 84. The appellant nevertheless considers not have to show that, if it had had access that the examination of the documents to the replies provided by the other pro- effected by the Court of First Instance in ducers to the statement of objections, the order to determine whether, in this case, Commission decision would have been there had been an infringement of the rights different in content, but only that it would of the defence, was based on an incorrect have been able to use those documents for approach. its defence'.

88. Must it therefore be considered that the 85. It has argued that, instead of looking at Court of First Instance did indeed use an things from the perspective ex ante of the incorrect assessment criterion? undertaking, the Court took an ex post approach. In other words, instead of exam- ining whether the undertaking could have used the disputed documents, it analysed whether the undertaking's use of those documents could have culminated in the 89. I do not think so. Accordingly, to analyse the documents, it also used the 17 — Case C-51/92 P Heralles Chemicals v Commission [1999] terms 'affected the applicants' defence' ECR I-4235. (paragraph 1035 of the contested judg-

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ment), 'in what way their defence rights 93. I therefore consider that the Court have been affected' (paragraph 1036), 'af- complied, in its method of analysis, with fected the u n d e r t a k i n g s ' defence' the aforementioned case-law of the Court (point 1041), 'contain anything relevant of Justice. to the applicants' defence' (paragraph 1073).

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97. In any event, the appellant is careful that the irregularity committed in respect of not to identify any document which it access to the file had the slightest effect on could have used for its defence and in its opportunity to defend itself. respect of which the Court is alleged to have wrongly held that non-disclosure did not result in an infringement of the rights of the defence.

98. Accordingly, whatever criterion is fol- 99. The fourth limb of this plea should be lowed, the appellant has not established rejected and, consequently, the whole plea.

III — Conclusion

For the foregoing reasons, I propose that the Court should: