C-252/99

OPINION OF MR MISCHO — CASE C-252/99 P

OPINION OF ADVOCATE GENERAL MISCHO delivered on 25 October 2001 1

I — Introduction 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regu- lation No 17. 3All the undertakings con- cerned submitted observations in June 1988. Except for Shell International Chemical Company Ltd, which had not requested a hearing, they were heard in A — Background to the dispute 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 3. On 1 December 1988 the Advisory Articles 85 and 86 of the Treaty, 2 the Committee on Restrictive Practices and Commission of the European Communities Dominant Positions (hereinafter 'the Advis- commenced an inquiry on polyvinyl- ory Committee') delivered an opinion on chloride (hereinafter 'PVC'). It sub- the Commission's draft decision. sequently undertook various investigations at the premises of the undertakings con- cerned and sent them requests for infor- mation.

4. At the end of the proceeding the Com- 2. On 24 March 1988 it instituted on its mission adopted Decision 89/190/EEC of own initiative a proceeding under 21 December 1988 relating to a proceeding Article 3(1) of Regulation No 17 against pursuant to Article 85 of the EEC Treaty 14 PVC producers. On 5 April 1988 it sent (IV/31.865, PVC), 4(hereinafter 'the PVC I each of those undertakings a statement of decision'). By that decision, the Commis- objections as provided for in Article 2(1) of sion penalised the following PVC producers Commission Regulation No 99/63/EEC of for infringement of Article 85(1) of the EC

'Article 1 8. By judgment of 27 February 1992 in BASF and Others v Commission, 6 the Court of First Instance declared the PVC I decision non-existent. BASF AG, DSM NV, Elf Atochem SA, Enichem SpA, Hoechst AG, Hüls AG, 5 — C a s c T-106/89 (not published in the European Court Imperial Chemical Industries plc, Lim- Reports!. 6 — Joined Cases T-79/89, Ž-84/89, Ž-85/89, T-86/89, Ž-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 .md Others v Commission 11992| LCR 7 — Case C'-137/92 P Commission v BASF andOthers |1994| II-315. LCR 1-2555.

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The following fines are hereby imposed on the undertakings named herein in respect of The undertakings named in Article 1 which the infringement found in Article 1: are still involved in the PVC sector in the Community (apart from Norsk Hydro and Solvay which are already the subject of a valid termination order) shall forthwith bring the said infringement to an end (if they have not already done so) and shall henceforth refrain in relation to their PVC operations from any agreement or con- certed practice which may have the same or (i) BASF AG: a fine of ECU 1 500 000; similar object or effect, including any exchange of information of the kind normally covered by business secrecy by which the participants are directly or indi- rectly informed of the output, deliveries, stock levels, selling prices, costs or invest- ment plans of other individual producers, or by which they might be able to monitor (ii) DSM NV: a fine of ECU 600 000;

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(iii) Elf Atochem SA: a fine of ECU (x) Société Artésienne de Vinyle SA: a fine 3 200 000; of ECU 400 000;

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

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

D — Procedure before the Court ofjustia

14. By judgment of 20 April 1999 in Lim- burgse Vinyl Maatschappij and Others v Commission 8 (hereinafter 'the contested 15. By application lodged at the Coun judgment'), the Court of First Instance: Registry on 5 July 1999, Wacker-Chemk GmbH (hereinafter 'Wacker-Chemie') anc Hoechst appealed pursuant to Article 49 o: the EC Statute of the Court of Justice.

— joined the cases for the purposes of the judgment;

16. They claim 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 paragraphs 4 and 5 of the plained of after the first half of 1981; contested judgment in so far as they relate to the appellants;

— reduced the fines imposed on Elf Ato- chem, Société Artésienne de Vinyle SA — annul the PVC II decision in so far as it and ICI to EUR 2 600 000, EUR relates to the appellants; 135 000 and EUR 1 550 000 respec- tively;

•—• order the appellants to pay the costs.

21. They argue that that composition of the chamber constitutes an infringement of Articles 10(1) and 32(1) of the Rules of II — Assessment Procedure, justifying annulment of the contested judgment.

18. The appellants set out grounds of appeal relating to the infringement of Articles 10(1) and 32(1) of the Rules of Procedure of the Court of First Instance, to the grounds of the judgment relating to the 22. The appellants point out in that regard four German undertakings, to the irregu- that Article 32(1) of the Rules of Procedure larity of the preparatory administrative governs only the situation in which, by procedure and to the infringement of reason of a Judge being absent or prevented Article 85(1) of the Treaty and from attending, there is an even number of Article 15(2) of Regulation No 17. Judges. The expiry of a Judge's term of

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25. The party bases its interpretation on 28. Nor can the appellants invoke the the first paragraph of Article 9 of the Rules objective of Article 32(1) in support of of Procedure of the Court of First Instance, their argument. which relates to the Presidency of the Court and which applies expressly, besides cases of absence and prevention, to that of vacancy. It must be inferred that, within the meaning of the Rules of Procedure, the first two concepts do not include the third, which is therefore covered by a provision only if it is expressly stated. 29. That provision seeks to prevent an even number of judges of the Court of First Instance from sitting. In that situation, it 9 — The Commission cites, in that regard, Case T-26/90 Finsider does not matter whether a prevention is v Commission [1992] ECR II-1789, paragraph 37 (taking up a post as a Judge of the Court of Justice); Case T-195/95 final or temporary. Even an absence or Guérin automobiles v Commission [1997] ECR II-679, prevention which is brief but occurs, for paragraph 10 (death); Case T-232/95 Cecom v Council [1998] ECR II-2679, paragraph 13 (appointment as Advo- example, at the time of the hearing, may cate General at the Court of Justice); and Case T-134/94 render it necessary to make sure that an NMH Stahlwerke v Commission [1999] ECR II-239, paragraph 38 (expiry of term of office). even number of judges is not sitting.

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30. I therefore see no reason to consider sufficiently reliable to call into question that the term 'prevention' within the mean- those supplied by the appellant itself in ing of Article 32(1) of the Rules of Pro- response to a request for information. cedure of the Court of First Instance does not include the prevention which occurs when a Judge comes to the end of his term of office.

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37. The appellants' plea alleging incom- in which the Court of First Instance stated plete examination of the evidence must as follows: therefore be regarded as unfounded.

38. Wacker-Chemie and Hoechst also claim that the grounds relating to the 'The Commission referred to the result of matters in question are contradictory and that calculation and the conclusions it drew incomplete. Therefore, they may be chal- from it in the statement of objections. At lenged before the Court of Justice, and an the hearing before the Commission, how- objection of inadmissibility cannot be ever, Hoechst denied the figures which it raised against the appellants on the basis had itself initially provided and produced that it is a plea of fact and not of law. 10 new ones. The Commission was, however, able to establish that the latter lacked all credibility. It thus stated in the Decision (point 14; footnote 1) that "[n]ew figures produced by Hoechst at the oral hearing (but without any supporting documen- 39. In the appellants' submission, the tation)... are clearly unreliable and would Court had not given the parties the oppor- have had to involve Hoechst loading its tunity to rectify, by means of a reliable plant at over 105% while the others certificate drawn up by chartered accoun- achieved only 70% occupation rates". In tants, incorrect information provided in fact, Hoechst acknowledged that those new error. Furthermore, it had not taken into figures were wrong and supplied the Com- account documents contained in the file of mission with a third set of figures by letter the proceedings which revealed that the of 21 October 1988.' figures originally supplied by Hoechst agreed with those certified by the chartered accountants. Finally, the Court had failed to have regard to the causal connection by not taking into account the fact that Hoechst had corrected its own sales figures further to an alteration, by the Commis- sion, of the basis of its requests for 41. The Court added, in paragraph 611: information and its treatment of the evi- dence.

consumers" within the meaning of the 44. The appellants claim that such is the Fides declarations, Hoechst's own con- case in this instance. They rely, in that sumption for its plant at Kalle. The Court regard, on the same arguments as those set considers, however, that bearing in mind out above. the circumstances in which those figures were produced, they cannot be regarded as sufficiently reliable to call into question those supplied by the applicant itself in response to a request for information'. 45. I consider that the Commission there- fore correctly describes that claim as a 'reformulation' of the previous plea. While purporting to allege distortion, the appel- lants merely reiterate their disagreement with the factual assessment made by the Court of First Instance in paragraphs 610 42. It is unquestionably clear from the and 611 of the contested judgment, and above that the appellants' criticism related, therefore come up against the inadmis- in actual fact, to the Court's appraisal of sibility of pleas relating to appraisals of the various points of information provided evidence by the Court. by Hoechst concerning its sales levels. The only subject-matter of the arguments set out above which the appellants dispute is the evidential value to be attributed to the third set of figures communicated to the Commission by letter of 21 October 1988 46. Even if this plea were admissible, it is, as opposed to the two sets supplied pre- in any event, unfounded. I consider, in fact, viously. that, in view of the circumstances and, in particular, the existence of three sets of different figures supplied during the pro- ceedings by the undertaking concerned itself, since the change in methodology apparently imposed by the Commission cannot explain all those differences, the Court of First Instance was entitled to reject the last of those sets, without com- 43. It has consistently been held that the mitting distortion. appraisal of evidence by the Court of First Instance constitutes a question of fact which is not subject to review by the Court of Justice hearing an appeal, save where the clear sense of the evidence has been dis- torted by the Court of First Instance. 11 47. Wholly in the alternative, I would also point out that, in any event, this plea is not 11 — See, in particular. Joined Cases C-280/99 P, C-281/99 P and C-282/99 P Moccia Irme and Others v Commission such as to lead to the annulment of the [2001] LCR I-4717, paragraph 78. contested judgment.

53. The appellants do not dispute that those preparatory measures were carried out before the adoption of the PVC I decision nor do they claim that the annul- ment of that decision affected their validity. 50. This plea should therefore be rejected.

12 — See paragraph 607 of the contested judgment. 13 — See paragraph 588 of the contested judgment. 14 — Paragraph 589 of the contested judgment. 15 — Paragraph 594 of the contested judgment. 54. However, they take the view that, since 16 — Paragraph 599 of the contested judgment. a period of six years elapsed between the

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time they were carried out and the adop- ment is still continuing when the decision is tion of the decision, it should have been adopted or, at least, that there is a risk that held that the hearing of the undertakings it will recur. In the absence of evidence on and the consultation of the Advisory Com- these matters, the lapse of time meant that mittee no longer complied with the require- there was no longer any legal basis for the ments of the Regulation. PVC II decision.

57. Secondly, the direction to terminate the infringement presupposes that the infringe- 60. That line of argument is not persuasive.

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61. As regards the first point, the appel- in paragraph 1247 of its judgment, that the lants' argument is manifestly unfounded. requirement to terminate the infringement No statement in the decision requires the is expressly addressed to undertakings infringement to have lasted until the date of 'which are still involved in the PVC sector'. adoption of the decision. The appellants' argument on this point is therefore manifestly devoid of all foun- dation.

62. The decision determines only the dur- ation of the infringement taken into account for the purposes of fixing the amount of the fine, a duration which has no connection with the date of adoption of 65. As regards the fourth point, it should the decision and is in no sense affected by be borne in mind that, under Article 15(2) it. On the other hand, the decision does not of Regulation No 17, the fines which the contain any finding relating to the date the Commission may impose on undertakings infringement ceased, and moreover, may not exceed '10% of the turnover in the according to an undisputed statement of preceding business year of each of the the Court of First Instance, 17 it was not undertakings participating in the infringe- required to do so. ment'.

63. As for the second point, in respect of which it should also be pointed out that it indicates no essential link with the lapse of time since it could have been invoked 66. That reference to the turnover for the against the PVC I decision, it should be previous financial year is therefore relevant noted that, since it is not alleged that the only in the context of determining a maxi- infringement continued, the direction is mum level for the fine. In the present case, ineffective against the addressees. It cannot it is not claimed that the Commission, by therefore constitute an act adversely affect- not amending, in the PVC II decision, the ing them. amount of the fine imposed under the PVC I decision, had exceeded that threshold.

Plea alleging infringement of Article 85(1) of the Treaty and Article 15(2) of Regu- lation No 17

73. I share the Commission's view, that the appellants merely criticise the Court's appraisal of the evidence, although, in the absence of distortion — which is not alleged in the present case — such an appraisal does not constitute a point of 69. Wacker-Chemie and Hoechst claim law open, as such, to review by the Court that the Court wrongly held that of Justice. 18 Article 85(1) of the Treaty was applicable.

74. It follows that this plea too should be rejected.

70. In that regard, they dispute the grounds contained in paragraphs 609 to 612 of the contested judgment, relating to partici- pation of the German parties to the pro- ceedings in a cartel on quotas. They refer, in that regard, to their complaints alleging an incomplete examination of the facts, a contradictory and incomplete statement of 18 —Case C-53/92 P Hilli v Commission |1994| ECR I-667, reasons and a distortion of the evidence. paragraph 42.

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