C-254/99

LIMBURGSE VINYL MAATSCHAPPIJ AND OTHERS v COMMISSION

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 — Factual background to the dispute September 1988.

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

4. On conclusion of the procedure, the Commission adopted Decision 89/190/EEC 2. On 24 March 1988 it instituted on its of 21 December 1988 relating to a pro- own initiative a proceeding under ceeding pursuant to Article 85 of the EEC Article 3(1) of Regulation No 17 against Treaty (IV/31.865, 4PVC, hereinafter 'the 14 PVC producers. On 5 April 1988 it sent PVC I decision'). By that decision, the each of those undertakings a statement of Commission penalised the following PVC objections as provided for in Article 2(1) of producers for infringement of Article 85(1) Commission Regulation No 99/63/EEC of of the Treaty (now Article 81(1) EC):

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, 6the 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 ECR. burgse Vinyl Maatschappij NV, Mon- 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 11-315. 7 — Case C-137/92 P [1994] ECR I-2555.

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(iv) Enichem SpA: a fine of ECU 2 500 000; (xi) Shall International Chemical Com- pany 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

— joined the cases for the purposes of the judgment; 16. It claimed that the Court should:

— annulled Article 1 of the PVC II decision in so far as it found that — annul the contested judgment in Société Artésienne de Vinyle SA had relation to ICI; participated in the infringement com- plained of after the first half of 1981;

— annul the PVC II decision in so far as it referred to ICI, or, in the alternative, — reduced the fines imposed on Elf Ato- refer the matter back to the Court of chem SA, Société artésienne de vinyle SA and ICI to EUR 2 600 000, EUR First Instance; 135 000 and EUR 1 550 000 respect- ively;

— annul the fine, which was reduced to EUR 1 550 000 by the Court of First — dismissed the remainder of the action; Instance, or once again reduce the amount;

— ruled on the costs.

— order the Commission to pay the costs 8—Joined Cases T-305/94, T-306/94, T-307/94, T-313/94, of the proceedings at first instance and 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 [1999] ECR II-931. on appeal.

21. It argues that the final and binding nature of the judgment in Commission v BASF and Others is clear from the structure II — Assessment of that judgment itself, in which the Court of Justice, having set aside the judgment of the Court of First Instance, decided to give 'final' judgment on the dispute pursuant to 18. ICI puts forward eight pleas in support Article 54 of the EC Statute of the Court of of its appeal. The first three concern the Justice. The appellant emphasises that the power of the Commission to adopt the PVC Court then examined not the appeal by the II decision. They relate, respectively, to the Commission but 'the actions for annulment authority of res judicata, the principle non brought before the Court of First Instance bis in idem and the obligation to adopt against the Commission's decision'. In its decisions within a reasonable time. judgment annulling the PVC I decision for breach of essential procedural require- ments, the Court of Justice thus gave final judgment not only in respect of procedural questions but also in relation to all the matters raised by the undertakings at first instance and heard on appeal by the Court of Justice, this being fully in accordance A — The doctrine of res judicata with the jurisdiction and duty of the Court in an appeal. It is significant in that respect that the Court did not require the Com- mission, expressly or impliedly, to take a 19. Before the Court of First Instance, ICI second decision. Accordingly, all matters in maintained that the Commission could not adopt the PVC II decision without infring- ing the authority of res judicata attaching to the aforementioned judgment in Com- 9 — Case C-281/89 Italy v Commission [1991] ECR I-347, paragraph 14, and Case C-277/95 P Lenz v Commission mission v BASF and Others. [1996] ECR I-6109, paragraph 50.

22. What are we to make of that argu- 26. On the contrary, in paragraph 78 of its ment? judgment in Commission v BASF and Others, the Court expressly held that 'the decision must therefore be annulled for infringement of essential procedural 23. As the Commission very sensibly points requirements without it being necessary to out, the fundamental point, in the present examine the other pleas raised by the case, is not whether the Court has given applicants'. 'final judgment', but in what respect its judgment is final. All that may be inferred from the fact that the Court, pursuant to Article 54 of its Statute, has given a final ruling in the dispute, is that the state of the 27. It could not be stated more clearly that proceedings so permitted, within the mean- a ruling did not need to be given on the ing of that provision. other pleas and that it was not given. The appellant's argument is tantamount to giving the Court's judgment the exact opposite effect since it implies, on the 24. That means that the Court was in contrary, that the Court had adjudicated possession of all the information it needed on all the pleas raised, without confining to give a ruling on the dispute with which itself to the single plea which it considered the Court of First Instance's judgment was sufficient for deciding whether the decision concerned, namely the validity of the PVC I was valid. decision which was contested before it, and that it gave a final judgment on the matter; moreover, attention is drawn to that fact by the appellant. 28. I d ' s view is also inconsistent with the case-law of the Court of Justice, according to which, where a measure adopted by an 25. For that purpose, it relied on the institution has been annulled by the Court, information it considered necessary. On the institution is required, in order to the other hand, it is not apparent from comply with the judgment, to have regard Article 54 of the Statute, to which the to the operative part of the judgment and appellant refers, or from any statement also to the grounds which constitute its contained in the aforementioned judgment essential basis. 11 of the Court of Justice, that it necessarily

31. The appellant's argument that it is significant that the Court of Justice did 34. Furthermore, it is apparent from the not refer the case back to the Court of First above that, by adopting a fresh decision, Instance or to the Commission is not the Commission did not adversely affect the persuasive. institutional balance established by the Treaties. It is therefore pointless for the appellant to refer to paragraphs 21 and 22 of the judgment in Parliament v Council, in which the Court stressed that it is import- ant for the institutions to have mutual regard for their respective powers, and that 32. Where, as in this case, the Court of it should be possible to penalise any breach Justice holds that the state of the proceed- of that rule which may occur. ings in a dispute permits judgment to be given, within the meaning of Article 54 of the EC Statute, it necessarily follows that it will not refer the case back to the Court of First Instance. However, that in itself does not give any indication of the scope of the pleas disposed of by the Court of Justice. If 35. Since none of the appellant's arguments the Court has all the information it needs to can be upheld this plea should be rejected.

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38. ICI also takes exception to the Court of First Instance's reliance on the fact that the Court of Justice did not specifically decide all issues and pleas raised by the parties. 40. It is clear from the above that, in the That, in ICI's submission, is irrelevant. appellant's view, there is a dual dimension Article 4 of Protocol No 7 to the European to the principle non bis in idem, the Convention for the Protection of Human applicability of which to Community com- Rights and Fundamental Freedoms (here- petition law, as a general legal principle, inafter 'the ECHR') applies to a final was acknowledged by the Court of First conviction. A conviction is final where it Instance and is not disputed by the parties, is irrevocable, that is to say when no who rightly refer to the rule in Boehringer further ordinary remedies are available or Mannheim v Commission. 12 In the context where the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of 12 — Case 7/72 |1972| ECR 1281, paragraph 3.

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of the present case, it means that an 43. The fact must be stated, however, that undertaking cannot be penalised twice on the Court of First Instance in no way the same facts and also that proceedings considered that ICI had been relieved from cannot be brought against it twice on the paying the fine. It only stated, correctly, as same facts. we have seen, that the undertakings did not have two penalties imposed on them for the same offence.

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47. Accordingly, the situation is not at all Instance acknowledges the existence of a similar to the case of acquittal referred to in general principle of Community law that Article 4 of Protocol 7 to the ECHR, on decisions following administrative proceed- which the appellant relies. ings relating to competition policy must be adopted within a reasonable time. It recalls that Article 6 of the ECHR lays down the reasonable time requirement in relation to any criminal accusation. It maintains that 48. That argument must, therefore, be that applies to competition proceedings rejected, without the need even to examine before the Commission,13 especially as whether that provision and, in particular, those proceedings are of a criminal nature. the exceptions provided in paragraph 2, are applicable. Indeed, since the present case does not fulfil the requirements for appli- cation of the principle, there is no point in analysing the exceptions to it. 52. It argues that the Court of First Instance erred in law by holding that a Commission decision may be annulled for 49. It follows that this plea should be infringement of the principle that decisions rejected. must be adopted within a reasonable time only if the undertaking can demonstrate that it has suffered damage. In its sub- mission, such a solution is contrary to the settled case-law of the European Court of Human Rights. C — Infringement of the principle that decisions must be adopted within a reason- able time

50. ICI subdivides its plea alleging infringe- 53. In that regard, reference should be ment of the principle that decisions must be made to paragraph 122 of the contested adopted within a reasonable time into three judgment, which states as follows: parts.

Where it has not been established that the cases of Eckle and Corigliano. 15 However, undue delay has adversely affected the it must be stated that, in those two cases, ability of the undertakings concerned to the question was raised whether a person defend themselves effectively, failure to had to invoke prejudice in order to be comply with the principle that the Com- regarded as the victim, within the meaning mission must act within a reasonable time of Article 25 of the Convention, of a cannot affect the validity of the adminis- violation of his rights. The European Court trative procedure and can therefore be of Human Rights responded in the regarded only as a cause of damage capable negative, on the ground that there could of being relied on before the Community be a violation without prejudice. What judicature in the context of an action based were therefore at issue were the conditions on Article 178 and the second paragraph of for being able to rely on a violation of the Article 215 of the Treaty.' principle, not the consequences of a poss- ible violation.

54. This shows that in no way did the Court of First Instance consider that a 57. Let me reiterate that, in the present decision could be annulled for infringement case, the Court of First Instance in no way of the principle of reasonable promptitude made the possibility of invoking an only if the undertaking could establish that infringement of the principle conditional it had suffered damage. on proof of prejudice. It only held that the application of that principle entailed dif- ferent consequences depending on whether or not infringement of it affected the rights of the defence. 55. It did not, therefore, make annulment of the decision conditional on the existence of damage but on the existence of an infringement of the rights of the defence. On this point, it thus took a similar approach to that of the case-law of the 58. The first part of this plea should there- Court of Justice. 14 fore be rejected.

63. I do not agree with that analysis.

— protection of the right to mount an effective defence; 64. Unlike the appellant, I think it is impossible merely to add together the duration of the administrative proceedings and the duration of the court proceedings — the importance of maintaining public in order to determine the duration of the confidence in the procedures of the proceedings for the purposes of the prin- Commission and the supervisory role ciple of reasonable promptitude of the Court.

65. Such an approach would give rise to a 61. The PVC II decision failed to observe series of paradoxical consequences. those three requirements. The fact that part of the total time spent was spent in proceedings before the Court of First 16 — Eur. Court H.R.. Garyfallou AEBE v. Greece judgment of 24 September 1997, Reports of Judgments and Decisions Instance and the Court of Justice is, ICI 1997-V, p. 1821,5 40 to 43.

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72. Before the Commission, what is at issue 69. Furthermore, judicial protection would is a set of facts which are attributed to the then become, for undertakings, a kind of undertaking and whose correctness and gamble which they would win in almost legal significance are, as a rule, the subject every possible situation. Indeed, by bring- of debate. That debate may or may not be ing an action for annulment against the followed by the adoption of a decision by Commission's decision, they would unleash the Commission, a decision whose very a process in which only a judgment of the principle and content fall to a certain extent Court of Justice rejecting all their pleas within the discretion of the Commission, could prevent them from prevailing by which is responsible for implementing alleging an infringement of the principle Community competition policy.

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73. On the other hand, the Court of First 77. As for the judgment in Garyfallon Instance considers a particular legal meas- AEBE v Greece, cited above, it must be ure, a Commission decision against which a stated that it did not concern the aggre- series of specific complaints are made. The gation of an administrative proceeding and same is true, mutatis mutandis, of the a legal proceeding, but of proceedings Court of Justice in an appeal. The action brought before various courts. It cannot must be brought within a given time and therefore be invoked in support of the the Court is under a duty to decide the case. appellant's argument.

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period of 15 months elapsed during a though such prejudice is not, in ICI's period of preliminary investigation before submission, a condition for the finding of indictment.18 It also refers to the judgment an infringement of the duty to take action in Baustahlgewebe v Commission,19 con- within a reasonable time. cerning delays of 32 months between the end of the written procedure before the Court of First Instance and the decision to open the oral procedure, and 22 months between the close of the oral procedure and 83. ICI concludes that the period of four- delivery of the judgment. and-a-half years before the formal opening of proceedings must be regarded as a wholly unreasonable length of time and that, contrary to the conclusion reached by the Court of First Instance, the PVC II 81. ICI states that, according to the Com- decision should be annulled on that ground mission, the PVC infringement started in alone. August 1980. The Commission accepted that, by the time it opened its PVC file, ICI's involvement had probably ceased. More significantly, ICI ceased its PVC business in October 1986, at which time it did not know the exact nature of the 84. I consider, however, that the question Commission's allegations. It remained whether the proceedings were excessively unaware of the nature of those allegations protracted in the light of the problems until April 1988, when the Commission raised is a matter to be assessed by the notified the Statement of Objections to it, Court of First Instance. It is a question of two-and-a-half years after the initiation of fact, to be settled, as the appellant itself the investigation. By that time, however, states, according to the circumstances of ICI no longer retained any direct interest in the specific case, which means, fur- PVC and no longer had access either to the thermore, that it is pointless for the appel- relevant personnel, who had by that time lant to refer to various delays that have left IÇI's employment, or to the pertinent been the subject of case-law of the Euro- records, which had been routinely pean Court of Human Rights, since it does destroyed. not show how the context in which they occurred is comparable to the present situation.

86. This conclusion is unaffected by ICI's 90. Like the Court of First Instance, I claim that it suffered prejudice as a con- consider that, in order to determine the sequence of the delay caused by the Com- time to be taken into consideration, a mission. Let us remember that ICI states, in distinction must be drawn between the this context, that, as it no longer had any investigation stage, in the strict sense, and direct interest in PVC when the proceedings the adversarial stage of the proceedings. under Regulation No 17 were initiated, it no longer had access either to relevant personnel who had by that time left ICI's employment or to pertinent records which had been routinely destroyed. 91. At the former stage, no complaint has yet been made against the operators. The Commission may indeed ask them for information but they do not have to defend themselves against any accusation. There is 87. In that regard, it should be pointed out therefore no uncertainty in respect of the that the possible existence of prejudice does substance of any charge against them or, not deprive the plea raised of its factual consequently, any material or non-material nature. damage.

92. Furthermore, it must be pointed out in 88. Furthermore, I note, as does the Com- that regard that, before the statement of mission, that this claim is hardly specific objections, the only measures taken by the and that, in particular, ICI does not explain Commission are measures of inquiry. whether it took steps to preserve docu- These, as provided for under Regulation ments in order to protect its interests and, if No 17, cannot be regarded as an allegation not, why not because, from October 1983, that a criminal offence has been committed. the date on which the investigation was carried out on its premises, it knew that there was a possibility of proceedings.

94. In other words, the mere fact that an undertaking is the subject of measures of inquiry adopted by the Commission does not mean that it is an accused. 98. It should also be noted that the appli- cation of the principle of reasonable promptitude to this stage of the proceed- ings would have the adverse effect of encouraging undertakings to be as dilatory as possible in fulfilling that obligation because they would know that every delay- ing tactic on their part would increase their 95. The contrast with the situations which chances of obtaining the annulment of a have been examined in the case-law of the possible decision for failure by the Com- European Court of Human Rights concern- mission to observe that principle. ing the beginning of the relevant period, cited by the appellant,21 is also revealing, assuming that it is appropriate, in this context, to refer to cases where what was at issue was the liberty of the parties con- cerned, not the application of commercial law to legal persons. 99. As for the Commission, it might be required to inquire into cases within time- limits which would not allow it properly to substantiate its final decision.

96. The point of departure in those cases was marked by the existence of specific accusations, in general a charge, sometimes 100. On the other hand, an undertaking accompanied by remand in custody. It is which receives a statement of objections is clearly not possible to equate these situ- clearly the subject of a specific allegation. ations with that of the subject of measures Furthermore, the issue of a statement of of inquiry adopted even before the state- objections means that the Commission ment of objections. intends to adopt a decision against the undertaking, representing a change to its situation for the purposes of applying the 21 — Judgments in Wemhoff and Neumesiter, cited above. principle of reasonable promptitude.

103. It is important to point out, in that regard, that it certainly does not follow that individuals do not have any protection against Commission investigations that are excessively long. Indeed, as the Com- 106. The Commission is also quite right mission rightly points out, the speed at when it adds that the introduction of the which the Commission deals with compe- principle of 'undue delay', to be evaluated tition cases is already subject to an exhaus- according to the specific circumstances of tive series of rules reflecting the principles each particular case, in addition to the of legal certainty and the right to a fair provisions of the aforementioned regu- hearing, established by Council Regulation lation, would not meet the requirements (EEC) No 2988/74 of 26 November 1974 of legal certainty. concerning limitation periods in proceed- ings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and com- petition. 22

107. It follows from all the above that the 22 —OJ 1974 L.319, p. 1. plea alleging infringement of the principle

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of reasonable promptitude is unfounded or significance independently of the final inadmissible in its entirety and must there- decision. As the Court of First Instance fore be rejected. stated in paragraph 10 of the contested judgment, the PVC II decision was a fresh decision. As such, it required compliance with the procedural guarantees relating thereto. The annulment of the PVC I decision involved nullification of the effects of the measures of administrative pro- cedure prior to the PVC I decision, so that D — The lack of a proper administrative those measures could not constitute the procedure necessary procedural steps for the adoption of the PVC II decision.

118. The Court of First Instance did not, therefore, err in law by holding that the 115. The Court of First Instance was there- nullity of the PVC I decision did not extend fore right to hold that it was necessary to to the measures taken prior to the annulled determine, in the light of the operative part decision. 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.

119. The first part of this plea should therefore be rejected.

116. That annulment arose from the mere fact that the Commission infringed the procedural rules governing only the detailed procedure for the definitive adop- tion of the decision. The nullity could not extend to the procedural stages which The second part, alleging non-compliance predated the occurrence of that irregularity with certain prescribed steps of the prior and to which those rules were not intended administrative procedure to apply.

120. ICI argues that, in any event, adoption 117. The situation is therefore similar to of the PVC II decision required a fresh that considered in the judgment in Spain v hearing of the undertakings concerned, a Commission, 25 cited by the Court of First fresh report of the Hearing Officer, and a Instance, in which the Court of Justice held fresh consultation of the Advisory Com- mittee. It also considers that the composi- tion of the file submitted for the deliber- 24 — Sec, for example, Asiens aud Others and Greece v Commission, cited above. ation of the College of Commissioners was 25 — Case C-415/96 [1998| ECR I-6993. incomplete.

121. ICI complains that, at paragraph 251 of the contested judgment, the Court of First Instance held that a new hearing of the undertakings concerned before the adop- tion of the PVC II decision would have 124. ICI's right to be heard should have been required only if that decision had extended to the relevance and implications contained objections which were new in of the allegations made against it, in the relation to those set out in the PVC I light of the changes in the factual and legal decision, as was the case. According to ICI, position since 1988. The appellant could the undertakings had to be heard not just in have made observations in particular on the the event of there being new objections. principles of res judicata and non bis in They should have had an opportunity to idem, the principle that decisions must be submit observations concerning any objec- adopted within a reasonable time, the tion made against them. matters to be considered by the Hearing Officer, the obligation to consult the Advisory Committee, the implications of Article 20 of Regulation No 17, fines, changes in the factual situation, and on various judgments delivered by the Court of First Instance. 122. Moreover, their right to be heard, both in writing and orally, extended not only to matters of fact but also to matters of law. 26 In paragraph 264 of the contested judgment, the Court of First Instance itself acknowledged that each of the undertak- ings must be in a position effectively to put 125. The appellant submits that the its case as to the accuracy and relevance of importance of the right to be heard afresh the facts and circumstances alleged. is evident by analogy with the Rules of Procedure of the Court of First Instance itself, Article 119(1) of which gives the parties an absolute right to lodge further observations in cases where the Court of Justice remits a case to the Court of First Instance for decision after the annulment of 123. ICI also refers to the judgments in a judgment of the latter, notwithstanding Italy v Commission and British Aerospace that the written procedure would ordinarily have been considered to be complete.

132. It is not claimed that the PVC I decision contained objections in respect of which the undertakings were not heard or that the PVC II decision contained objec- 128. It must be pointed out, first of all, that tions additional to those contained in the it has already been shown that the meas- PVC I decision. It follows that, in this case, ures taken preparatory to the final decision, the regulations did not require the under- including the hearing of the undertakings, takings to be given a fresh hearing. the proceedings before the Hearing Officer and the meeting of the Advisory Commit- tee, completed before the adoption of the PVC I decision, remained valid. 133. That conclusion is confirmed by the case-law of the Court of Justice 28 which shows that, as the appellant itself points out, the principle of the rights of the defence requires that the person against 129. It follows that the undertakings were whom the Commission has initiated an heard, in accordance with the applicable administrative procedure must have been rules, since they were able to put their case afforded the opportunity, during that pro- as to the complaints made against them. cedure, to make known his views on the truth and relevance of the facts and circum- stances alleged and on the documents used by the Commission to support its claim that there has been an infringement of Commu- nity law. 130. In that regard, it should be borne in mind that Article 19( 1) of Regulation No 17 provides that, before taking its decision, the 28 — Case 234/84 Belgium v Commission [1986] ECK 2263.

138. The possibility that, in consequence of 135. It is therefore pointless for the appel- those developments, the validity in law of lant to try to establish, by pointing out that certain complaints might be affected is, as the right to be heard applies not only to the Commission points out, a matter com- questions of fact but also to points of law, pletely different from the question whether that there is an obligation to consult on a ICI was able to make known its views series of matters, listed in point 124 above, about them. If it is found that, owing to which are not part of the objections stated those developments, which, let us by the Commission or of the statement of remember, the Commission does not have reasons given to substantiate the statement to take into account ex ante, the position of objections and cannot, therefore, fall taken in the statement of objections and in within ICI's right to be heard. the decision is incorrect in law, the decision will be annulled for misapplication of the Treaty, not for infringement of ICI's right to be heard regarding the complaints made against it.

141. I therefore agree with the Commis­ sion's analysis that it is not necessary to apply a principle — assuming it exists — according to which decisions may be taken only within a limited period from the date on which the undertakings were given the opportunity to submit their observations. I 144. ICI's argument that, in view of the should point out that, in any event, the exceptional nature of the adoption of a limitation rules apply. second decision, it was particularly import­ ant for the undertakings to be heard, should also be rejected. It is apparent from what has been stated above with regard to the subject-matter of the hearings granted to undertakings, namely the objections stated against them, that this did not include the matter of the expediency of adopting a decision. 142. Furthermore, the appellant is wrong to invoke the precedent in Italy v Commis­ sion and British Aerospace and Rover v Commission. Those two judgments did not concern a situation where, as in this case, a new decision relating to the same infringe­ ment replaced a decision previously annulled. Rather, they involved a situation where a new decision concerning a fresh 145. Finally, the appellant's reference to infringement was based on an earlier Article 4 of Protocol No 7 to the ECHR, decision relating to a similar infringement. which provides that a case may be reo­ The need for a fresh hearing therefore arose pened only 'in accordance with the law and because there were two different infringe­ penal procedure of the State concerned', ments, and that is not the case here. does not assist its case at all, even if that provision is assumed to be applicable. This action is specifically concerned with com­ 29 — Sec parajļraph 5 of the decision. pliance with the applicable law.

149. ICI complains that the Court of First 147. ICI complains that the Court of First Instance, in paragraphs 256 and 257 of its Instance rejected its arguments concerning judgment, held that a fresh consultation of the intervention of the Hearing Officer the Advisory Committee was unnecessary. without addressing the arguments concern- ing his role. After citing the functions of the Hearing Officer set out in the Commission decision of 24 November 1990 on the hearings in proceedings relating to Articles 85 and 86 of the EEC Treaty and 150. The appellant maintains that it is clear Articles 65 and 66 of the ECSC Treaty from Article 10(3) of Regulation No 17 [Twentieth Report on Competition Policy, that separate consultation is required for p. 350), the appellant emphasises that the each separate decision, regardless of role thus conferred is an essential one. If no whether the undertakings have been heard hearing were organised before the adoption and regardless of the extent of the simi- of a decision, it would be impossible for the larity between the decisions, and a fortiori Hearing Officer to carry out his duties and where the decision upon which consul- exercise his powers, so that essential ques- tation has taken place has been annulled, tions raised by an undertaking would not and was taken a long time earlier. be drawn to his attention or, through him, to the attention of the Advisory Committee, the Director-General for Competition, the Member of the Commission responsible for Competition, or the College of Commis- sioners, contrary to a fundamental require- 151. Since the legal and factual position ment of the r i g h t s o f the defence. had changed significantly at the date on

158. As regards the probable change in the composition of the Committee, that mani- 154. Article 10 of Regulation No 17 festly cannot serve as the basis of an expressly provides that the Committee is obligation to consult the Committee again. to deliver an opinion on a preliminary draft decision. It follows that it does not necess- arily have to be consulted on the definitive text. Moreover, this is confirmed by the preamble to Regulation No 99/63, accord- ing to which the Commission may inquire 159. Finally, the parallel which the appel- into the case after the Committee has been lant seeks to draw between the role of the consulted. Advisory Committee in the event of re-

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newal, amendment or revocation of an 162. It must be pointed out that, since exemption decision has no bearing on the there was no obligation to hold a fresh issue. Indeed, such decisions are valid for a hearing or to consult the Advisory Com- different period of time from that covered mittee, it necessarily follows that there by the measure which they replace, unlike could be no obligation to submit to the the situation in the present case. College of Commissioners fresh documents relating to those steps.

Composition of the file submitted for the consideration of the College of Commis- 163. It is apparent from the above that the sioners second part of this plea and, consequently, the whole plea, should also be rejected.

160. ICI argues, finally, that, as a result of defects in the administrative procedure E — Insufficient statement of reasons for prior to the PVC I decision, the College of the manner in which the Commission Commissioners was unable to consider all proceeded for the purposes of adopting relevant documents, particularly a fresh the PVC II decision. report of the Hearing Officer and a fresh report on the outcome of consultation of the Advisory Committee.

165. ICI argues that, in the present case, 168. The contested decision must therefore the Commission was under no obligation to explain in sufficient detail the nature of the take a new decision. Its decision to do so infringement which the person to whom it without serving a new statement of objec- is addressed is alleged to have committed, tions, and with neither a fresh hearing of the reasons why the Commission considers the undertakings nor fresh consultation of that it has been committed and the obli- the Advisory Committee, was not only gations which it intends to impose on the unusual but wholly unprecedented. In those addressee. circumstances, the undertakings were entitled to an explanation for the manner in which the Commission chose to proceed. The Commission's refusal to provide that explanation constituted a clear breach of 169. It is not at all clear from the line of Article 190 of the Treaty. On that point, argument developed by the appellant that the appellant relies in particular on the the Commission failed to fulfil that obli- judgments in Groupement des fabricants de gation in the present case. Indeed, ICI does papiers peints de Belgique and Others v not claim that the text of the decision did Commission and Delacre and Others v not allow it to understand without any Commission. 30 difficulty the nature of the complaints made by the Commission or the way in which it justified them.

166. The appellant's argument is uncon- vincing. 170. It must therefore be concluded that the appellant has not established that there has been a breach of the Commission's duty to provide a statement of reasons.

Commission did not rebut all the appel- 175. The Court of First Instance did not lant's complaints cannot be regarded as a say otherwise in paragraph 389 of the breach of the duty to provide a statement of contested judgment, in which it states that reasons, since the conditions set out above the fact that the Commission gives no are satisfied. explanation in respect of the complaints referred to above cannot constitute insuffi- cient reasoning for the decision, since those arguments are essentially concerned only with challenging the validity of the Com- mission's assessment concerning those vari- 172. Indeed, the obligation to provide a ous questions. Since such a challenge falls statement of reasons cannot include — lest within the scope of an examination of it paralyse the exercise of any decision- whether the decision was justified, it can- making power — the duty to reject in not be relevant to an examination of advance all the complaints which might whether the statement of reasons for the be made at the litigation stage. contested measure is adequate or not.

173. In that connection, the Commission 176. Accordingly, the complaint that the correctly cites settled case-law according to judgment is insufficiently reasoned on this which it is not required to discuss, in its point is unfounded. decision, all the issues of fact and law which have been raised by an undertaking during the administrative proceedings,32 and infers, a fortiori, that that consider- ation applies to arguments put forward for the first time in proceedings for the annul- 177. This plea should therefore be rejected. ment of the decision in question.

183. The Court of First Instance therefore correctly concluded that the problem was confined to the question whether the Com- 180. ICI contends that, even if it was mission, having obtained documents in one entitled to use the documents in question matter and used them as evidence to open for the purposes of initiating a new inves- another proceeding, was entitled, on the tigation, the Commission could not use basis of authorisations or decisions con- them in the latter as evidence, even on the cerning that second proceeding, to request basis of new copies requested in the context fresh copies of those documents and then of that second investigation. That con- use them as evidence in the second matter. clusion is supported by the case-law. 33

184. The case-law of the Court of Justice 34 181. In this case, in ICI's view, the infringe- unquestionably shows that the Commission ment of Article 20(1) of Regulation No 17 is entitled to use documents obtained in one was particularly serious because the dis- proceeding as evidence to open another proceeding. Furthermore, this is not dis- puted by the parties. 33 —Case 85/87 Dow Benelux v Cammissmn [1989] ECR 3137. Case C-67/91 Asociación Española tle Banca Privada and Others [ 1992] ECR I-4785, and Case C-36/92 P SEP v Commission [1994] ECR I-1911. 34 — Dow Benelux, cited above.

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185. The question then arises to what use the Commission requests a document the Commission is entitled to put the again. Indeed, undertakings are then, from documents it already has, once the new the point of view of the protection of their inquiry has been initiated. rights, in the same position as if the Commission did not yet have the document (with the sole exception that the Commis- sion knows exactly what it has to ask for).

188. It therefore supplements the terms of Article 14, and also Article 11, of the 191. On the other hand, it would be wholly regulation, which require the Commission out of proportion with that objective to to specify the subject-matter and purpose of require the Commission, once the new the investigation or request for infor- proceeding had been initiated, to consign mation. According to the case-law, that to oblivion the document which indicated obligation represents a quid pro quo for the the need to initiate it. Furthermore, it is duty of undertakings to cooperate. hard to imagine, in practice, what form should be taken by the new inquiry con- ducted by the Commission, compelled as it would be to undergo 'acute amnesia', to echo the expression used by the Court of Justice in its judgment in Asociación Españ- 189. It is indisputable that undertakings ola de Banca Privada and Others, cited are in no way deprived of that protection if above.

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199. ICI recalls that the Court of First 196. As for the case of Asociación Españ- Instance did not accept its argument that ola de Banca Privada and Others, that does the Commission's power to impose fines

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was time-barred under Regulation Article 3. If Article 3 were to have such No 2988/74. It complains of the fact that dramatic consequences as those for which the Court held that the actions challenging the Court of First Instance contends, separ- the PVC I decision had suspended the ate recitals would have been included in the limitation period, pursuant to Article 3 of regulation in order to justify that provision. Regulation No 2988/74.

205. However, the consequence of this last argument is that suspension of the limi- 202. Finally, since Article 3 or its equival- tation period can apply only in the absence ent did not form any part of the Commis- of any wrongdoing on the part of the sion's proposal for a regulation, there is no Commission, that is to say, when the action reasoning in the recitals to Regulation against the Commission decision is dis- No 2988/74 specific to the addition of missed. In fact, it is to be supposed that any

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annulment is the consequence of the Com- mination of the proceedings, that is, the mission's wrongdoing. However, it is pre- final decision, but quite simply to place the cisely in the absence of annulment that it is provision within the context of the dis- pointless to invoke the limitation period. tinction made by the regulation between time-barring of the right to bring proceed- ings and time-barring of the right to enforce the decisions taken.

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213. Furthermore, for there to be litigation, cludes the scope of the second from being there has to be a Commission measure open defined by the terms of the first. The to challenge before the Community court. opposite view would disregard the logic of The 'decisions' referred to by Article 3 the regulation. must, therefore, be challengeable measures.

218. Furthermore, the paradoxical con- 214. As the Court of First Instance quite sequence of the appellant's argument is rightly pointed out, this is not necessarily that an action against a decision relating to the case with regard to the measures a measure of inquiry would lead, under covered by Article 2, which lists various Article 3, to suspension of the limitation measures that do not constitute decisions. period, whereas an action against the Moreover, that is hardly surprising; many decision imposing the fine would not. measures of inquiry can interrupt the limitation period but are not, in themselves, measures open to challenge.

219. The argument put forward by the appellant has a second paradoxical con- 215. The appellant maintains, however, sequence, namely the fact that no provision that the Commission decision finding the in the regulation would be applicable to the infringement and imposing the fine cannot present case, that is to say the annulment of fall within the scope of Article 3. the decision imposing the fine, which is all the more surprising because the first recital in the preamble to the regulation mentions the need to create a comprehensive set of rules.

221. It also overlooks the fundamental 226. I should point out, finally, that there distinction between limitation of the right is no objective reason for the appellant's to bring proceedings and limitation of the fear that the Commission might take 'a right of enforcement. series of successive decisions extending into the latter half of the 21st century'. The concatenation of such a series of unlawful decisions would be somewhat of a chal- lenge, or indeed an achievement, since the Commission may reproduce a measure only 222. It is undoubtedly clear from the word- if the annulment was granted solely on ing of those articles that they apply to the procedural grounds and only after it has limitation period in respect of the enforce- resumed the procedure at a point prior to ment of a decision. This question can, by the adoption of the measure found to definition, be raised only when the decision contain a procedural irregularity. at issue has not ·— as in this case — been annulled.

227. It follows from the above that the Court of First Instance was right to apply Article 3 of the regulation and, accordingly, 223. It follows that those articles of the to hold that the Commission's right to regulation are clearly inapplicable to the adopt the PVC II decision was not time- present case. barred.

228. The plea alleging that the limitation 224. The appellant also contends that the period had expired should therefore be Court of First Instance's interpretation rejected. disregards the maximum duration of 10 years — at the end of which the limitation is established once and for all in spite of possible interruptions — for which provi- sion is made in Article 2(3) of the regu- lation.

234. Since the Court of First Instance correctly held that the principle had not been infringed, its judgment cannot be criticised for not awarding compensation 231. The appellant points out that, in that for damage caused by the alleged infringe- case, the proceedings as a whole lasted ment. Even if the damage were proved, an approximately 13 years, from the com- award of compensation presupposes that mencement of investigations to the delivery the principle was infringed. of the judgment of the Court of Justice. In this case, by the time the judgment of the Court of Justice is delivered, the proceed- ings as a whole could have lasted 19 or 20 years. During that time, ICI will have incurred irrecoverable costs associated with 235. The comparison drawn by the appel- the provision of a guarantee in respect of lant with the case of Baustahlgewebe v the fine imposed for the periods cor- Commission confirms this analysis since, in responding to the PVC I and PVC II contrast to the present case, the Court there

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held that the principle had been infringed 236. Accordingly, this final plea should and therefore awarded compensation. also be rejected and, consequently, the appeal should be dismissed in its entirety.

Conclusion

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