C-251/99

LIMBURGSE VINYL MAATSCHAPPIJ AND OTHERS v COMMISSION

OPINION OF ADVOCATE GENERAL MISCHO delivered on 25 October 2001 1

I — Introduction objections as provided for in Article 2(1) of Commission Regulation No 99/63/EEC of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regu- lation No 17. 3All the undertakings con- cerned submitted observations in June 1988. Except for Shell International A — Background to the dispute Chemical Company Ltd, which had not requested a hearing, they were heard in September 1988.

1. Following investigations conducted in the polypropylene sector on 13 and 14 Oc- tober 1983 pursuant to Article 14 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty, 2 the 3. On 1 December 1988 the Advisory Commission of the European Communities Committee on Restrictive Practices and commenced an inquiry on polyvinyl- Dominant Positions (hereinafter 'the Advis- chloride (hereinafter 'PVC'). It sub- ory Committee') delivered an opinion on sequently undertook various investigations the Commission's draft decision. at the premises of the undertakings con- cerned and sent them requests for infor- mation.

4. At the end of the proceeding the Com- mission adopted Decision 89/190/EEC of 2. On 24 March 1988 it instituted on its 21 December 1988 relating to a proceeding own initiative a proceeding under pursuant to Article 85 of the EEC Treaty Article 3(1) of Regulation No 17 against (IV/31.865, PVC),4 (hereinafter 'the PVC I 14 PVC producers. On 5 April 1988 it sent decision'). By that decision, the Commis- each of those undertakings a statement of sion penalised the following PVC producers

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

''Article 1 8. By judgment of 27 February 1992 in BASF and Others v Commission, 6 the Court of First Instance declared the PVC I decision non-existent. BASF AG, DSM NV, Elf Atochem SA, Enichem SpA, Hoechst AG, Hüls AG, Imperial Chemical Industries plc, Lim- 5 — Case T-106/89 (not published in the European Court burgse Vinyl Maatschappij NV, Mon- Reports). 6 — Joined Cases T-79/89, T-84/89, T-85/89, T-86/89, T-89/89, T-91/89, T-92/89, T-94/89, T-96/89, T-98/89, T-102/89 and T-104/89 BASF and Others v Commission [1992] ECR 7 — Case C-137/92 P Commission v BASF and Others [1992] II-315. ECR I-2555.

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(iv) Enichem SpA: a fine of ECU (xi) Shell International Chemical Company 2 500 000; Ltd: a fine of ECU 850 000;

(v) Hoechst AG: a fine of ECU 1 500 000; (xii) Wacker-Chemie GmbH: a fine of ECU 1 500 000.'

(vi) Hüls AG: a fine of ECU 2 200 000;

B — Procedure before the Court of First Instance

putting together a guarantee and any other — ruled on the costs. expenses arising from the PVC II decision.

C — The judgment of the Court of First Instance D — Procedure before the Court of Justice

14. By judgment of 20 April 1999 in Lim- burgse Vinyl Maatschappij and Others v 15. By application lodged at the Court Commission8 (hereinafter 'the contested Registry on 6 July 1999, Enichem SpA judgment'), the Court of First Instance: (hereinafter 'Enichem') appealed pursuant to Article 49 of the EC Statute of the Court of Justice.

— joined the cases for the purposes of the judgment;

16. It claims that the Court should:

— annulled Article 1 of the PVC II decision in so far as it found that Société Artésienne de Vinyle SA had participated in the infringement com- — set aside the contested judgment in plained of after the first half of 1981; those parts contested by Enichem and, accordingly, annul the PVC II decision;

— order the appellant to pay the costs of 20. The Court concluded that, to the extent the proceedings at first instance and on that it referred to the joint submissions, appeal. Enichem's reply did not satisfy the require- ments of Article 44(1 )(c) of the Rules of Procedure and could not therefore be con- sidered.

I I — Assessment

21. Under that provision, the application 18. In support of its appeal, Enichem puts must contain 'the subject-matter of the forward 13 pleas, which should be con- proceedings and a summary of the pleas sidered in the order in which they appear in in law on which the application is based'. the application.

22. Enichem states that the Court of First A — Infringement of Article 44(l)(c) of the Instance misapplied the provision since: Rules of Procedure of the Court of First Instance

19. The appellant complains that, in para- graph 41 of its judgment, the Court of First — the procedural complaints formulated Instance stated that, in its reply, Enichem in the joint submissions were already made a general reference to the pleas and included in the application and were arguments put forward jointly by a number only clarified in the reply;

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24. Lest that oral procedure be rendered 28. However, it is apparent, from wholly redundant, the arguments put for- Article 51 of the EC Statute of the Court

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of Justice, that, in order for an appeal to LIE B —• Plea of res judicata on the grounds of a breach of procedure, the interests of the appellant must have been adversely affected.

33. Enichem considers — unlike the Court of First Instance — that the judgment in Commission v BASF and Others gave a 29. In that regard, the appellant merely definitive ruling in the PVC case and that explains that the effect of the Court's the Commission was therefore unable to conclusion was that that part of the appel- adopt a new decision. lant's reply relating to procedural defects was not taken into account for the purposes of the judgment or that it was cut from all the arguments when the joint oral pleadings were heard. That is no more than a general description of the effects inherent in the Court's decision and cannot therefore be 34. It bases its argument, firstly, on regarded as adequate. Article 54 of the EC Statute of the Court of Justice, under which the Court, if it does not wish to give judgment on one or more aspects of the matter, may refer the case back to the Court of First Instance for judgment. In the present case, the Court 30. Indeed, the appellant does not specifi- ruled only on the question of infringement cally mention any argument, put forward in of essential procedural requirements the reply before the Court of First Instance, because that infringement, since it resulted which was not taken into consideration by in the annulment of the PVC I decision, the Court and, a fortiori, has not estab- rendered consideration of the other pleas lished to any degree that, if it had been, it unnecessary. could have had an influence on the Court's decision.

37. The case-law of the Court of Justice brought against decisions by which the shows, in fact, that, where a measure Commission imposes a fine. adopted by an institution has been annulled by the Court, the institution is required, in order to comply with the judgment, to have regard to the operative part of the judg- ment and also to the grounds which con- stitute its essential basis. 9 41. It points out, in that regard, that, under that provision, the Court disposes of the whole of the case before it. That is what it did in the case in point, as is apparent from the list of procedural and substantive pleas submitted to it, contained in paragraph 56 38. In the present case, the Court held, in of its judgment. Since it did not make any its PVC I judgment, that the contested mention of further steps in the proceedings, decision should be annulled for infringe- for example by referring the case back to ment of the Commission's Rules of Pro- the Court of First Instance, its judgment cedure and expressly stated, in paragraph encompassed all the aspects raised before 78 of the judgment, that it was therefore it. not necessary to examine the other pleas raised by the appellants.

42. This argument is based on a misunder- standing of the term 'unlimited jurisdic- tion', which means that the Court is 39. Accordingly, the Court did not give entitled to deal with the whole of the case, judgment on these, and left the way open for example, by replacing the Commis- for the Commission to fulfil its obligation sion's decision with its own as regards the under Article 176 of the EC Treaty (now level of the fines. On the other hand, it does Article 233 EC) to take steps to comply not mean that a judgment of the Court of with the Court's judgment by adopting a Justice must inevitably be regarded as fresh decision in accordance with its Rules having disposed even of the pleas which of Procedure. the Court has expressly held do not need to be examined for the purposes of taking a decision on the subject-matter of the dis- pute, namely, the validity of the contested measure.

46. In the appellant's submission, measures taken preparatory to a final decision do not have an independent existence but remain intellectually and organically attached to 51. That judgment shows, on the contrary, the decision which puts an end to the that the annulment arose from the mere administrative procedure. That decision fact that the Commission infringed the constitutes the objective of those measures. procedural rules governing only the The fact that the defect which results in the detailed procedure for the definitive adop- annulment of the decision related only to tion of the decision. The nullity could not, the final part of the procedure is not a therefore, extend to the procedural stages decisive factor. which predated the occurrence of that irregularity and to which those rules were not intended to apply.

47. In reality, a procedural defect affecting the legality of the final decision is bound to 52. I should point out that the Court of have an impact on previous measures taken Justice also expressly stated in its judgment during the administrative procedure. that it was not necessary to examine the

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other pleas, including, therefore, those 57. None the less, it is important to note relating to the validity of the preparatory that, in both cases, the Commission is measures. required to give due effect to the annulling judgment. It follows that, in both cases, it had to have regard to the judgment when deciding the adoption procedure and the content of the new measure. The fact that, in one case, it was mandatory for it to 53. The situation is therefore similar to that adopt that measure while, in the other, it considered in the judgment in Spain v had the option not to do so, is irrelevant in Commission, 10 cited by the Court of First that regard. Instance, in which the Court of Justice held that the procedure for replacing the annulled measure could be resumed at the very point at which the illegality occurred.

260 to 268 and 270 of the contested tion on the rights of the defence, particu- judgment, held that a fresh hearing of the larly because the PVC II decision was undertakings concerned, including on the adopted in 1994, when the Commission expediency of adopting a new decision, was decision of 24 November 1990 had already not necessary because the PVC II decision been in force for a long time. did not contain objections which were new in relation to those set out in the PVC I decision.

64. It must be pointed out, first of all, that it has already been shown that the meas- ures taken preparatory to the final decision, including the hearing of the undertakings, 61. It also argues that the Court was wrong the intervention of the Hearing Officer and to consider that, since a fresh hearing of the the meeting of the Advisory Committee, undertakings was unnecessary, there was completed before the adoption of the PVC I no need to call for the intervention of the decision, remained valid. Advisory Committee on Restrictive Prac- tices and Dominant Positions (hereinafter 'the Advisory Committee'). It had thus deprived the Committee of its role of monitoring and guiding the exercise of the Commission's powers. 65. It follows that the undertakings were heard, in accordance with the applicable rules, since they were able to put their case as to the complaints made against them.

62. The appellant adds, finally, that, in respect of the Hearing Officer, the Court of First Instance had wrongly held that the hearing of the undertakings held in 1988 66. In that regard, it should be borne in was sufficient and that the Commission mind that Article 19(1) of Regulation decision of 24 November 1990 on the No 17 provides that, before taking its hearings in proceedings relating to decision, the Commission is to give the Articles 85 and 86 of the EEC Treaty and undertakings 'the opportunity of being Articles 65 and 66 of the ECSC Treaty 11 heard on the matters to which the Com- was not applicable at that date. mission has taken objection'.

72. As for the consultation of the Advisory C o m m i t t e e , it is a p p a r e n t from 69. Enichem's claim that the hearing also Article 10(5) of Regulation No 17 that allows undertakings to express their views the Advisory Committee is to deliver an on aspects of the case other than the opinion on a preliminary draft decision. objections does nothing to detract from The appellant does not claim that the text that conclusion. Even if that were the case, of the PVC II decision was substantially there would be no grounds for inferring different from that considered by the Com- that the Commission was required to con- mittee, since it merely refers to the Court's sult the undertakings on those other aspects statement, in paragraph 252 of its judg- since, as we have seen, the applicable ment, that the new Decision was adopted in regulations refer to a right to be heard on factual and legal circumstances different the objections, which is perfectly under- from those which existed at the time the standable in the context of protecting the original decision was adopted. However, rights of the defence since, by definition, it the Court went on to say, in the same is against the complaints made against sentence, that that fact did not in any sense them that the undertakings must be able mean that the Decision contained new to defend themselves. objections.

70. As regards the fact that the Commis- 73. In the absence of such substantial sion had the opportunity to conduct a modifications, the regulation did not written exchange of arguments, it should be require, in my view, that the Advisory noted that, since the Commission — as in Committee should be consulted again on a the present case — was not required to text which was substantially the same as hear the parties again, the form which that that on which it had already given its consultation may have taken is unimport- opinion. ant.

76. In the appellant's submission, the Court placed a wholly restrictive interpre- 79. The Court has consistently held that tation on the Commission's duty to state the scope of the institution's obligation to reasons, by accepting that the first recital in state reasons depends on the nature of the the preamble to the PVC II decision, which measure in question. In particular, if the merely refers to the Treaty, constituted a institution has a discretion whether to formal reference to the task assigned to the adopt, it cannot be required to state Commission and thus satisfied the require- particular reasons in that regard. 12 ment to state the reasons for the institu- tion's interest in finding an infringement and penalising the undertakings concerned. However, in the light of what the appellant calls the corrective role of the Commis- sion's discretion, attached to the obligation to state reasons, that requirement should be 80. Of course, it is important to distin- interpreted widely, so that the Commis- guish, in that context, between the obli- sion's choices do not avoid review of their gation to state reasons for the act of legality. adopting the measure, which is the subject- matter of the plea raised by the appellant, and the obligation to state reasons for the content of the decision, which the appellant does not claim has been infringed and

77. That is particularly so in the present case, in which the Commission exercised its 12 — Case 247/87 Star Fruit v Commission [1989] ECR 291.

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83. The appellant criticises the Court for holding, none the less, in paragraph 671 of the contested judgment, that the Commis- 86. It is apparent from the above that, in sion's approach to the evidence was not essence, the appellant is complaining that affected by that fact, since the Commission the Court considered, like the Commission, had produced numerous documents estab- that the planning documents could be lishing the existence of the practices regarded as being at the origin of the cartel,

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although it thought, unlike the Commis- 90. It stated as follows in paragraph 668 of sion, that it was not apparent from their the contested judgment: wording that one constituted the pro- ducers' response to the proposals contained in the other.

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Court noted, finally, that there was a close takings which had contributed to the correlation between these and the practices establishment of the cartel by formally described in the planning documents. indicating their agreement and those which had merely joined a cartel set up by others. 14

92. In the circumstances, I take the view that the Court of First Instance cannot be considered to have distorted the facts by 96. As regards the assessment of the dura- holding that the planning documents con- tion of the infringement, the Commission stituted the basis on which consultations admittedly considers the date of ICI's and discussions between producers took proposals relevant, but does not refer to place, and led to the actual implementation the responses to them. Furthermore, and of the unlawful measures envisaged. above all, it also takes into account the date of the commencement of the new system of meetings.

93. Since the Court of First Instance there- fore reached the same conclusion as the 97. It is apparent from the above that this Commission, it is not possible to maintain, plea should be rejected. as the appellant maintains, that it substan- tially altered the accusation, with regard both to the gravity and the duration of the infringement, which it should have taken into consideration.

G — Attribution of collective liability

that the planning documents did not rep- 103. In the explanations criticised by the resent the moment at which a joint inten- appellant, the Court cites several passages tion was formed but rather an ICI project, from the PVC II decision which clearly they could not be regarded as evidence that show that the Commission considered that the appellant knew of the common plan. an undertaking was liable not only for its participation in a specific manifestation of the cartel but also in the cartel taken as a whole. In other words, individual liability also includes the fact of participating in the cartel by attending the meetings planning its introduction, without the need to prove that the undertaking participating in those meetings was also specifically associated 100. In the appellant's submission, it was with each measure implemented. also impossible for the Court reasonably to consider that such knowledge had been acquired during the meetings. In fact, there is no evidence of its regular attendance at the meetings. It has not been established in which specific meetings it participated and, furthermore, it has been acknowledged that it did not participate in all the meetings. 104. Thus, in paragraph 768 of its judg- ment, the Court referred to the second paragraph of point 25 of the PVC II decision, in which the Commission states that 'as regards the practicalities of proof, the Commission considers that besides demonstrating the existence of a cartel by 101. The Court could not therefore reason- convincing evidence, it is also necessary to ably hold Enichem responsible for all the prove that each suspected participant infringements on the assumption that it adhered to the common scheme. This does knew of all the manifestations of the cartel. not however mean that documentary proof must exist to show that each participant took part in every manifestation of the infringement'.

107. That echoes the wording of Article 85 of the Treaty, under which participation in an agreement whose object is anticompeti- tive constitutes an infringement, without the need to establish the existence of an 112. It is therefore perfectly possible for anticompetitive effect. individual liability to arise both from par- ticipation in specific manifestations of the cartel and from a more general contribu- tion to its implementation — what the Commission calls liability for the operation of the cartel as a whole — without by the same token being transformed into a col- lective liability. 108. Should it be considered, as the appel- lant claims, that the Court thereby stated that there was collective liability?

113. However, Enichem relies on the case- law of the Court of First Instance, 15

15 —Case T-6/S9 Emcbem Ame v Commission [1991] ECR 109. I do not think so. II-1623.

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according to which it is possible to exclude reached the conclusion, in paragraphs 931 an undertaking's liability for specific acts, to 941 of the contested judgment, that in the absence of evidence of participation Enichem's individual participation, in the meetings during which certain spe- whether in meetings or in specific mani- cific initiatives were discussed. festations of the cartel, was established, without distortion being alleged.

115. Of course, the individual liability described in point 112 requires evidence of the participation of the individual under- taking concerned both in the said meetings and the specific manifestations and that the H — Inadequate access to the file penalty adopted should be in proportion to the extent of the evidence established. 119. Enichem complains that the Court of First Instance held that the irregularity committed by the Commission in respect of the undertakings' access to the file could not, in itself, lead to the annulment of the PVC II decision and that defence rights 116. The Court of First Instance adopted were infringed only when the parties' that requirement since, on a general level, it opportunity to defend themselves had noted, in paragraphs 774 and 777 of the actually been affected. contested judgment, that the Commission considered that it had demonstrated that each undertaking had participated in the meetings, the purpose of which was, inter alia, to fix prices in common and, on an individual level, determined whether, for 120. It disputes the method used by the each applicant, that was the case. It thus Court to determine the relevance of the

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documents not disclosed by the Commis- that it is only when non-disclosure of a sion and criticises the Court, in particular, document could have harmed the appel- for disregarding a large number of those lant's defence that it may lead to the documents, without even examining them, annulment of the Commission decision. on the ground that they predated or post- Conversely, according to that case-law, dated the period under consideration. non-disclosure of a document unlikely to be useful to the undertaking's defence has no impact on the validity of the decision.

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other way, if it were not to deprive that conclusive. Even if it were founded, it is condition of all substance. The appellant is still for the appellant to prove the existence therefore wrong to criticise the Court for of documents in respect of which the Court the very fact that it carried out that of First Instance was wrong to hold that examination. non-disclosure did not compromise the rights of the defence.

128. Enichem also considers that, in the examination, the Court made an error of assessment. 132. It cannot just state in abstracto that the Court had followed an incorrect cri- terion. It is still necessary to prove that the consequence of that error was that a document which, on account of its date, 129. It must be stated that whether or not a the Court had held could not have been of given document is likely to be useful for the use for the appellant's defence, did, on the appellant's defence is a question of fact contrary, contain evidence on which the and, as such, is not open to review by the appellant could have relied. Court of Justice hearing an appeal.

138. It criticises, in particular, the Court's 135. Accordingly, the appellant has not finding in paragraph 986 of the contested established that the irregularity committed judgment, that: in respect of access to the file had the slightest effect on its opportunity to defend itself.

'In this case, it appears that, as it was entitled to do (Boehringer I, paragraph 55; 136. This plea should therefore be rejected. Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ v Com- mission [1983] ECR 3369, paragraphs 51 to 53), the Commission initially determined the total fine, which it then divided between the undertakings by reference to the average market share of each and any attenuating or aggravating circumstances I — Incorrect attribution of liability for which might apply to any of them individ- the infringement to the appellant, as group ually. Therefore, subject to the application holding company, for the purpose of taking of Article 15(2) of Regulation No 17 fixing its turnover into consideration when deter- the maximum fine which the Commission mining the amount of the fine may impose, the turnover of the holding company was not taken into account in determining the amount of the individual fine imposed on the applicant...' 137. Enichem complains of the fact that, in paragraphs 978 to 992 of the contested judgment, the Court of First Instance accepted that the appellant was an addressee of the PVC II decision, as holding company for the ENI group liable for the infringement, on behalf of Enichem Anic, 139. It is important to note that, in the one of the PVC operating companies in the context of this plea, Enichem does not raise group. It claims that the purpose of the the matter of whether the calculation choice of addressee was to take into method used by the Commission consti- account the holding company's turnover, tuted an error of law, a matter which is

140. However, the Court's finding relating to the manner in which the Commission calculated that amount is an assessment of 144. Furthermore, the appellant's state- fact which cannot be the subject of review ment that the Court had itself stated that by the Court of Justice hearing an appeal, the undertaking's turnover was one of the unless the Court of First Instance has factors taken into account by the Commis- distorted the facts. sion in order to determine the overall fine before distributing it between the convicted undertakings is incorrect. A reading of paragraphs 1174 et seq. of the contested judgment reveals only that, according to the Court, the Commission took into account the 'combined size of the under- takings concerned'. 17 141. The appellant is clearly very far from adducing the slightest inkling of proof of such distortion. It merely persists in repeat- ing that it has extensive doubts as to the veracity of the Court's statement. 145. It is apparent from the context that the Court was alluding to points 51 to 53 of the PVC II decision, in which the Commission cites, amongst the criteria which it took into account, the fact that the undertakings in question 'accounted for 142. The appellant's reference to the fact virtually the whole' of the PVC market. It that the turnover must inevitably have been did not therefore allude to the turnover of relevant since Article 15(2) of Regulation the undertakings, which is not surprising No 17 required the Commission not to since those parts of the PVC II decision to impose a fine exceeding 10% of the turn- which it refers do not do so either. over of the undertaking responsible for the infringement does nothing to detract from that finding. 17 — Paragraph 1175 in fine.

149. In the appellant's submission, the Court was wrong to disregard its claim 153. Indeed, the sole aim of the provision is that the Commission, in the PVC II to impose a maximum limit on the Com- decision, imposed a fine of an identical mission's power to impose penalties. On amount, in absolute value, to that of the the other hand, it is not designed to fine fixed in the PVC I decision, without determine more specifically the relation taking into account the fact that, in the there should be between the amount of circumstances, the relation between the the fine and the turnover of the censured turnover established and the amount of undertaking.

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160. The Court therefore contradicts itself by stating both that the criterion of the market shares was conclusive and that the statement of reasons was adequate, since the statement of reasons makes, at best, K — Inadequate statement of reasons for only an ambiguous reference to the market the criteria for calculating the fine shares.

157. Enichem maintains that paragraphs 161. Enichem adds that the Commission 1172 to 1184 of the contested judgment, in should be required to give its calculations

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within the body of the decision so that 165. According to settled case-law, 18 the undertakings and the Community judica- requirements which the statement of rea- ture are not obliged to guess how the sons of a decision must fulfil depend on the general criteria stated are reflected in context, which, in this case, includes the figures, and in order to allow observations appellant's prior knowledge gained in con- by the parties and a review of legality by sequence of the PVC I procedure. the Community judicature.

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paragraph 52 of the contested decision, the years 1983-1984. The appellant points out Commission explained its reasoning in that, at all stages of the procedure, it had relation to the gravity of the infringement itself claimed to have an average share of and, in paragraph 54, considered the dur- under 4% for the first period, a share of ation of the infringement. 12.8% for 1983 and of 12.3% for 1984.

172. The appellant complains that, in 169. The Court was therefore right, for paragraphs 615 and 616 of the contested that reason also, to reject the plea alleging judgment, the Court of First Instance held that the PVC II decision was insufficiently that the data provided by the appellant was reasoned, whatever interpretation should unreliable and, in any event, deceptive, be given to point 53 of the Commission's since it had not specified the bases on decision. which it had determined its market share for 1984 and had 'reduced' that share by relating those sales figures not to sales of European producers but to figures for European consumption, which were necess- arily higher since they included imports.

170. This plea should therefore be rejected.

173. According to Enichem, the Court's findings are incorrect and show a failure to take into account the information the appellant had submitted. It points out, in particular, that, even if its sales were L — Misinterpretation and misapplication related to those of European producers, of Community law and inadequate apprai- there would still be a significant difference sal of the evidence concerning the relation between its figures and those stated by the between the fine imposed on the appellant Commission. and its market share

175. The appellant points out, in that 179. It really has to be said that the only regard, that the average of 10% was complaint of inadequacy which the appel- obtained from the figures of 6% and 15% lant actually makes against the Court of assessed by the Commission for the years First Instance is that it did not reach the 1980-1982 and 1983-1984 respectively, same conclusion as the appellant with which it has always refused to accept as regard to the figures provided by the applicable to it. It submits that its average appellant and by the Commission. Enichem market share during the four years in disagrees with the result of the examination question was 7.2% — or 7.7% if its sales carried out by the Court of First Instance of were related to those of European pro- the data which the appellant provided and ducers — and therefore significantly lower requests the Court of Justice to carry out than the 9.6% stated by the Commission. another. On the basis of that market share, the fine imposed on Enichem should have been less than ECU 2 000 000, instead of the ECU 2 500 000 it was ordered to pay. 180. This is therefore what might be described as a standard example of a plea of fact, which is not open to review by the Court of Justice hearing an appeal.

176. What are we to make of this argu- ment?

186. It must be stated, in the light of the annexes to the application, on which the appellant bases its view, that the Court's 189. In that regard it should be pointed assessment cannot be challenged. The out, in any event, that it was for the Court documents in question either contain the of First Instance to compare the appellant's figures without any explanation or, in one figures with that of the Commission. It was case, include explanations, provided by the therefore reasonable for the Court to note appellant, which tend to show the uncer- that there was a difference in methodology tainty surrounding the data which served as and that that difference had an inevitable a reference for drawing up those figures. and undisputed arithmetical effect.

190. It is apparent from the above that the 187. The appellant also criticises the appellant has not established in what Court's statement that, since the sales respect the Court of First Instance distorted figures produced by Enichem related to the facts in this case. Its plea should European consumption, not to sales of therefore be rejected as inadmissible.

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M — Infringement of the principle of 194. In order to comply with that principle, proportionality during the fixing of the the Commission could very easily have amount of the fine adopted a method enabling it to retain the value of the fine originally imposed.

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the fine had disappeared since the PVC I undertakings have to deal with regularly in decision had been declared non-existent. the course of their business activities and whose very existence is not such as to render inappropriate the amount of a fine lawfully fixed'.

198. However, it should be pointed out in that regard that, since the judgment of the Court of First Instance was subject to appeal, the appellant could not behave as if that declaration of non-existence were definitive.

202. The Court added that, 'in any event, the maximum amount of the fine, deter- mined by virtue of Article 15(2) of Regu- 199. Enichem adds, finally, that the Com- lation No 17 by reference to turnover in mission should have accepted the responsi- the business year preceding the adoption of bility for causing the nullity of the PVC I the Decision, limits the possible harmful decision and Enichem should not have had consequences of monetary fluctuations'. to bear an additional burden owing to an error committed by others.

200. The Court of Justice has already had occasion to look into the matter raised by the appellant. A similar line of argument was the subject of its consideration in 203. Let us remember that it is not claimed Sarrio v Commission 2 1 and Enso Española that, in the present case, that limit has been v Commission. 22 exceeded.

— dismiss the appeal;

— order the appellant to pay the costs.

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