C-204/00

AALBORG PORTLAND AND OTHERS v COMMISSION-

OPINION OF ADVOCATE GENERAL RUIZ-JARABO COLOMER

delivered on 11 February 2003 1

Table of contents I — Facts I-134

II — The proceedings before the Court of First Instance and the judgment under appeal I - 137

III — The procedure before the Court of Justice I - 139

C — The appraisal of the exculpatory evidence I - 146

2 — The imputation of acts carried out by a different legal person (third plea in

law) I-148

A — Arguments of the parties I - 148

B — The existence of reasoning I - 151

C — An unwarranted transfer of responsibility I-152

2. The judgment under appeal contains the following facts which are relevant to this appeal:

— On 25 November 1991, the Commis- sion sent the Statement of Objections — From April 1989 to July 1990, the to the 76 undertakings and associations Commission carried out investigations of undertakings concerned, on which

2—Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, 3 — OJ, English Special Edition 1959-62, p. 87. T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, 4 — Cases IV/33.126 and 33.322 — Cement. T-103/95 and T-104/95 [2000] ECR II-491. 5 — Paragraphs 2 and 3 of the judgment.

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AALBORG PORTLAND AND OTHERS v COMMISSION

Aalborg submitted written observa- had infringed Article 85(1) of the EC tions and then oral submissions at the Treaty 9 by its anti-competitive conduct hearings held between 1 March and in participating: 1 April 1993. 6

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(a) Belgian and Dutch producers' in concerted practices relating to the minimum prices for supplies of exchange of information on the supply cement by lorry and of the Lux- and demand situation in the importing embourg producer's prices, inclus- third countries, the export prices ive of rebates; chargeable, the import situation in the member countries and the supply and demand situation on the home markets and designed to prevent incursions by competitors on respective national markets in the Community (Article 5). (b) the Danish and Irish producers' individual price lists, trade prices lists in force in Greece, Italy and Portugal, and average prices charged in Germany, France, Spain and t h e U n i t e d K i n g d o m (Article 2(2));

— The Commission ordered Aalborg to 4. from 28 May 1986, in an agreement on bring the infringements described to an the setting-up of the Cembureau Task end and to refrain from any agreement Force or European Task Force or concerted practice contrary to free (Article 4(1)); competition in the markets for grey cement and white cement (Article 8), imposed a fine of ECU 4 008 000 plus interest with effect from expiry of the deadline set for payment, which was three months from the date of notifi- cation of the Decision (Articles 9 and 5. from 17 June 1986 to 15 March 1987, 11). in concerted practices designed to with- draw the Italian undertaking Calces- truzzi as a customer from the Greek producers and from Titan Cement C o m p a n y , SA in p a r t i c u l a r (Article 4(3)(a));

(1) the Statement of Objections as notified to undertakings concerned, now the applicants; 7. After providing them with copies of the whole file, the Court of First Instance invited the applicant undertakings and associations of undertakings to lodge a (2) the minutes of the oral hearing of each pleading specifying the documents to which of the parties; they had not had access during the adminis- trative procedure which could have affected their defence and to explain briefly why in their view the outcome of the administrative procedure might have been different had they been given the oppor- (3) the list of all the documents in the files; tunity to consult them. The pleading was to

10 — See paragraph 163, read with paragraphs 5 and 95, of the contested judgment. 11 — See paragraphs 164 to 168 of the contested judgment.

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be accompanied be a copy of each docu- — annulled] Article 2(2) of Decision ment examined. All but one of the appli- 94/815 as regards the applicant in so cants 12 lodged observations. The Commis- far as it [found] that the periodic sion responded to all the applicants. 13 circulation of information between Cembureau — The European Cement Association and its members [had] related, so far as concern[ed] the Bel- gian and Netherlands prices, to those two countries' producers' minium prices for supplies of cement by lorry and, so far as concern[ed] Lux- embourg, the prices, inclusive of 8. In the contested judgment, the Court of rebates, of that country's producer; First Instance granted Aalborg's appli- cation in part and:

•— order[ed] the applicant to bear its own costs and to pay one third of the costs incurred by the Commission;

(4) in the agreement on the setting-up of the Cembureau Task Force (Article 4( 1 ) of the Decision), between 9 September — order[ed] the Commission to bear two 1986 and 31 May 1987; thirds of its own costs.'

9. Thus, the Court of First Instance held that Aalborg was liable for anti-competi- (5) in concerted practices designed to with- tive conduct for having participated: draw Calcestruzzi as a customer from the Greek producers (Article 4(3)(1) of the Decision), between 9 September 1986 and 15 March 1987.

(1) in the Cembureau agreement on non- transhipment to home markets of grey cement (Article 1 of the Decision) between 14 January 1983 and 31 December 1988;

III — The procedure before the Court of Justice

(2) in exchanges of specific information on prices of grey cement (Article 2(1) of the Decision) between 14 January 1983 and 19 March 1984; 10. When the appeal had been lodged and the written procedure completed, the Court of Justice, in the exercise of its powers under Article 119 of the Rules of Pro- cedure, 1 4by order of 5 June 2002 dis- (3) between 1 J a n u a r y 1984 and missed the second of Aalborg's pleas in 31 December 1988, in the periodic law. circulation of information on the Dan- ish and Irish producers' individual price-lists, on the trade price-lists in 14 — Codified version, published in OJ 2001 C 34, p. 1.

12. Aalborg claims that the Court of Justice should set aside the contested judgment in 15. At paragraphs 152 and 153 of the its entirety, in so far as it concerns Aalborg, judgment, the Court of First Instance states in so far as it confirmed the Decision, or that the Commission committed flagrant that it should set the judgment aside at least and substantive breaches of the principles in part. Failing that, it claims that the case governing access to the files by undertak- should be referred back to the Court of ings during an administrative procedure by First Instance for a fresh determination and denying them access to three quarters of the that the Court of Justice should annul the documents examined. Aalborg agrees with fine in whole or in part and order the that assessment and also with the legal Commission to pay the costs incurred by consequences which, in principle, the Court Aalborg before both Community Courts. of First Instance associates with such cir- cumstances, in particular, breach of the rights of defence, if it is established that, if the appellant had had access to a document and made submissions regarding its con- 13. In support of those claims, Aalborg tent, there would have been 'even a small... puts forward five pleas in law, some of chance' that the outcome of the procedure which are based on a number of arguments. would have been different. 15 As I have just said, the second of those pleas in law has been dismissed by order of 5 June 2002.

16. However, the appellant disagrees with 14. The complaints submitted by Aalborg the way in which the Court of First and the replies thereto of the Commission Instance applied that procedural rule and are set out below; they are analysed in order to provide the reasons for my sug- gestions. 15 — See paragraph 241 of the judgment.

16 — Documents 33.322/314 to 317. 18 — Namely: (1) the documents which illustrate the lawful 17 — These are (1) the file which the Cement Makers' Feder- lobbying activity carried out for the cement industry ation lodged with the Commission in 1973 when notifying (documents 33.126/171.58, 17163, 17164, 17168, 17627, the United Kingdom SPMA agreement (2) documents 17629, 17630 and 17641 to 17653, in particular 17641 33.126/1078 to 1088, 1147 to 1163, 2569 to 2578, 2591 and 17646); (2) the internal note concerning the meeting of to 2597, 5038 to 5051, 9010 to 9075 and 9078 to 9082), the Blue Circle 'Management Group' on 19 June 1986 which showed that for many years the European cement (documents 33.126/10822 and 1082.1); and (3) the various industry, in particular the Belgian industry, maintained documents which would have made it possible to prove the close contact with the Commission concerning the intro- factual bases of the defence argument that the European duction of a basing point system; (3) the letter from Mr cement industry was generally worried by imports from van Hove (documents 33.126/2412 to 2415); (4) docu- Greece and that the lawful lobbying initiatives were the ments 33.126/4982/54 and 66, 5295, 5296 and 6160 to only activities in which Aalborg took part (documents 6165), winch showed that it was dumped imports from 33.126/16469, 11000, 11101, 11107 to 11109, 11074, Eastern Europe and Spam that preoccupied the European 11075, 18961, 18962, 18963, 11004, 11021, 11022, cement industry in 1983 and 1984; and 15) document 11062») 11064, 11054 t o 11060, 16183, 11028 to 11031, 33.126/6162, which states that 'the rules of the economic 11033 to 11038, 7723, 11072, 17173, 17174, 11126, game are not applied by the countries of the East and, in 11130, 11131, 11138 to 11141, 11116, 11117, 18892 to particular, by East Germany'. 18997 and 15388, and 33.322/1319 to 1323).

19. The Commission disputes Aalborg's arguments in their entirety and contends 21. Aalborg replies that review of the that the Court of First Instance correctly application of the procedural rule used by applied the test of examining the new the Court of First Instance, which has been evidence in the light of the content of the employed elsewhere in the Community documents which the appellant would have case-law, 20 is a strictly legal operation wished to consult in the administrative which may be reviewed and corrected in procedure. Since, in reality, it constitutes an appeal, in so far as the court below has an appraisal of the evidence, which is rendered its judicial approach meaningless. outside the scope of an appeal, the plea is in its view inadmissible. 20 — Aalborg cites the opinion of Advocate General Léger in Case C-310/93 P BPB Industries and British Gypsum v Commission [1995] ECR I-865, points 120 and 121, and the judgment in Case C-51/92 P Hercules Chemicals v 19 — See paragraphs 2656 and 2600 of the judgment. Commission [1999] ECR I-4250, paragraph 81.

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B — The lawfulness of the measures of organisation of procedure ordered by the 25. Aalborg questions the correct perspec- Court of First Instance tive in the examination of the relevance as exculpatory evidence of the documents which were not at its disposal during the administrative procedure. Must the Court place itself in front of the Statement of Objections and from the point of view of the person who claims that he should not 23. In response to the claims concerning be included in the Decision? Or, on the the lawfulness of the administrative pro- contrary, can the Court look at the matter cedure and in order, where necessary, to from the aspect of someone who merely make good the damage caused by the lack determines whether it is possible to main- of access to certain documents, the Court tain the Decision in force, once it has been of First Instance requested the Commission adopted? By those questions, it calls in to send the whole file and to make it question, from the outset, the work carried available to the parties, 2 2in order that, out by the Court of First Instance in the having perused the documents which they contested judgment. had not been able to examine during the investigation, they should identify them and explain why the outcome of the procedure could have been different had they been given the opportunity to consult them. 26. The procedure for finding infringe- ments of Articles 81 and 82 EC is sanc- tionative by nature. As well as putting an 21 —These were Cedest SA (Casc T-38/95), paragraphs 2211 end to anti-competitive practices, it seeks to and 2286 and paragraph 11 of the operative part, and the punish the conduct which gave rise to them Rugby Group plc (T-53/95), paragraphs 3406 to 3436 and paragraph 22 of the operative part. 22 — With the exception of documents containing business secrets or other confidential information and Commission internal documents. 23 — Sec paragraph 241 of the judgment.

and confers on the Commission the power scope of the guarantees laid down in to impose financial penalties on those Article 6 of the European Convention on responsible. To that end, the Commission Human Rights to administrative proceed- has wide powers of investigation and ings of a disciplinary nature. 28 inquiry but, precisely because of that nature and because one and the same body is invested with the power to conduct inves- tigations and the power to take decisions, the rights of defence of those subject to the The Charter of Fundamental Rights of the procedure must be recognised without European Union 29 takes the matter further, reservation and respected. 24 since, in addition to providing that an accused is entitled to defend his legal position in a fair and public judicial procedure, before an independent and impartial tribunal previously established by law, 30 it also provides that every person has the right to be heard by the institutions of the European Union before any individ- ual measure which could affect him or her adversely is taken and the right to have

everyone. When there is a procedural matters, see K. Lenaerts and I. Maselis, 'Le justiciable face à la Commission européenne dans les procédures de constatation d'infraction aux articles 81 and 82 EC', published in Journal des tribunaux, No 5973 (2000), 28 — See the Engel and others v. the Netherlands judgment of pp. 496 to 504. Also of interest is the study by L. Goossens, 'Concurrence et droits de la défense: la phase adminis- 8 June 1976 (Series A no. 22) for military disciplinary trative devant la Commission', in Journal des tribunaux, proceedings and the Le Compte, Van Leuven and De Droit européen, No 52 (1998), pp. 169 to 175, and No 53 Meyere v. Belgium judgment of 23 June 1981 for

C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, 27 — The judgment now under appeal is itself an example (see C-250/99 P to C-252/99 P and C-254/99 P LVM and paragraphs 142 to 144 and 240). Others v Commission [2002] ECR I-8375).

31. The foregoing considerations explain the measures of organisation of procedure ordered by the Court of First Instance. 29. However, the instrumental nature of the right of access to the file entails a further consequence. Even where access has not been properly granted, or where there have been defects in the way in which it 32. As a result of the breach of procedural was granted, and the person concerned has requirements consisting in the Commis- therefore been less able to defend himself, sion's refusal to grant access to all the the decision subsequently adopted may be exculpatory documents in the file (com- annulled only if it is found that, if the plained of by the applicant undertakings proper procedural routes had been scrupu- and associations and found to exist by the lously followed, the outcome could have Court of First Instance), it was necessary to been more advantageous for the person analyse the impact of the procedural defect concerned or if, precisely because of the on the rights of defence. To that end, it was procedural defect, it is impossible to ascer- necessary to ascertain which exculpatory tain whether the decision would have been material had been withheld from the appli- different. In each case the final decision cant undertakings and associations and to must be annulled and, if appropriate, the obtain their view on the matter. Upon procedure repeated in order to put it right. seeing that material, the Court of First Instance considered the extent to which the Decision would have been different and more favourable to the applicants if that material could have been consulted and relied upon before the Commission.

36. That, moreover, is the import of Her- 34. The approach taken by the Court of cules Chemicals v Commission. It is appar- First Instance does not reveal any breach of ent upon reading paragraph 80 of that the case-law of the Court of Justice. In judgment that the deciding factor was not Hercules Chemicals v Commission, which I the procedural defect in itself but its effect have already cited, it was held that when on the rights of the defence, which may be there has been an infringement of the rights zero if the undertaking concerned does not of defence, it cannot be remedied by show that the fact that it was unable to belated access to the documents in the file consult certain exculpatory evidence which allows the undertakings affected to deprived it of the means of convincing the derive pleas and arguments in support of Commission of its innocence. the forms of order they are seeking, since it does not put them back into the situation they would have been in if they had been able to rely on those documents in pres- enting their written and oral observations to the Commission. 35

C — The appraisal of the exculpatory evidence

35. The Court of First Instance did not purport to remedy ex post facto a breach of the rights of defence which had already 37. In reality, the main part of Aalborg's complaint concerning this aspect amounts 34 — Like the historian, the judge reconstructs the past and, in doing so, must sift through evidence and testimony in order to reproduce the facts as and how they occurred. Neither the judge nor the historian can place himself in the position of the subjects of the investigation: they must step 36 — This is the test recently applied by the Court of Justice in outside it. On the relations between law and history, see PVC 17, cited above, paragraph 315 et seq., notably C. Ginzburg, The Judge and the Historian (Marginal notes paragraph 325. on the Sofri trial), Verso, London, 1999. 37 — As it did in the case of Cedest SA (Case T-38/95): see 35 — Paragraphs 78 and 79. paragraphs 2211 and 2286 of the judgment.

38. It is sufficient to read the pages of the application in which that plea in law is set out 8 to confirm that the appellant is requesting the Court of Justice to intervene in an area which is prohibited to it as an appellate court. The establishment of the facts falls within the jurisdiction of the Court of First Instance, whose task it is to assess the available evidence. The Court of Justice can intervene in that regard only if, in the production of evidence, a provision or a general principle of Community law 40. Applying the judicial test set out at has been infringed or if, when the evidence paragraph 241, the contested judgment was assessed, there was an infringement of states that the documents disclosed were the rules governing the burden of proof and not such as to alter the version of the facts the appraisal of evidence owing to the latter established by the Commission in the being illogical or arbitrary and therefore Decision. The Court of First Instance held such as to distort the evidence. The Court that Mr Toscano's notes and the other of Justice can only repair an infringement documents referred to by Aalborg con- of law by the Court of First Instance and firmed that questions of importance to the never establish the facts, without prejudice cement sector, relating to dumping and to its jurisdiction to review their legal State aid, were raised at the meetings but classification. 39 that they did not deny that anti-competitive agreements were adopted, a point which the Commission inferred from direct docu- 38 — See part I.4, points 1, 2 and 3 of the application (pp. 18 to mentary evidence. 40 As may be seen, the 37 or the French translation), the content of which is summarised at points 13 to 17 of this opinion. discussion which Aalborg seeks to provoke 39 — See point 27 of my Opinion of 3 May 2001 in Case C-315/99 P Ismeriv Court of Auditors [2001] ECR I-5281 and the judgments cited at note 17 of that Opinion, also paragraph 19 of the judgment in Ismeri v Court of 40 — Those indicated in recitals 18, 19 and 45 of the Decision. Auditors. Among the more recent dicta of the Court of In the judgment, sec paragraph 1112 et seq. (in particular Justice, see Joined Cases C-280/99 P to C-282/99 P Moccia paragraphs 1130, 1131 and 1132), concerning Mr Tosc- Irme and Others v Commission [ 2 0 0 1 ] ECR I-4717, ano's notes, and paragraph 1211, read with paragraph paragraph 78. 1183, concerning the other documents.

does not go beyond the assessment of the Instance, unless, as I have already observed, evidence or the establishment of the facts of in carrying out that task it reverses the the case. burden of proof or makes deductions which are illogical or arbitrary. However, the application does not reveal any infringe- ment of that nature, so that the complaint amounts to a mere disagreement concern- ing the events forming the basis of the dispute. 41. The same applies to the documents relating to the Baden-Baden meeting, which in Aalborg's submission show what its representative's intention was in attending the meeting and make clear that, if it had been able to use them during the adminis- 43. This plea — the first plea — should trative procedure, there would have been a therefore be rejected as inadmissible and chance, however small, of convincing the unfounded. Commission that it did not participate in the Cembureau Task Force. By this approach Aalborg discusses the Court of First Instance's assessment, at paragraphs 2888 to 2898 of the judgment, of the significance of such documents and of the impact on the outcome of the proceedings of the observations which, where appropri- 2 — The imputation of acts carried out by a ate, it would have been able to make during different legal person (third plea in law) the administrative procedure. As I have already observed, this question does not fall to be discussed in an appeal. The judicial task of identifying the underlying facts of a dispute extends both to the establishment of the facts obtained directly from the A •— Arguments of the parties evidence adduced and to the inferences which may be drawn from the interrelation between the different forms of evidence. 44. The Court of First Instance approved the Decision of the Commission which attributed to Aalborg, a company formed on 26 June 1990 which, with effect from 1 January of that year, succeeded to the cement manufacturer Aktieselskabet Aal- 42. In other words, review of the appli- borg Portland-Cement Fabrik ('the former cation of the procedural rule used by the cement manufacturer'), responsibility for Court of First Instance is, as Aalborg points the agreement adopted on 14 January out, a strictly legal operation which may be 1 9 8 3 , w h i c h was a p p l i e d u n t i l examined in an appeal. However, the 31 December 1988. In Aalborg's sub- establishment of the assumptions of fact mission, the Court of First Instance made necessary for its application fall within the an error of law, because the material exclusive domain of the Court of First conditions for a transfer of responsibility

(a) The absence of the conditions for a transfer of liability 47. The Commission states that, no matter how the judgment is interpreted, the deci- sive fact is that it was always the same economic entity that was involved and, 45. At paragraph 1336 of the judgment, whatever the structure of the ownership of the Court of First Instance states that the former cement manufacturer, all the Aalborg and the former cement manufac- activities in the sector were transferred to turer 'constitute the same economic entity'. Aalborg. The appellant reiterates that its formation and the acquisition of that undertaking were part of a reorganisation of the group to which it belongs. In reality it was a different legal entity, Blue Circle, which, 48. It contends that the continuity of the holding 50% of the shares in Aalborg at the original company in the form of a holding time when Aalborg became the owner of company, of which it is a joint owner, the former cement manufacturer, acquired cannot have the consequence that respon- half of its activities. Therefore, in the sibility is attributed to the recently-formed appellant's submission, the Court of First entity. The decisive factor is that, in Instance erred in interpreting the facts and, economic terms, it is the same company, furthermore, made an error of law. since all the material and human resources which participated in the infringement were available to Aalborg on 1 January 1990.

46. The second error originates in the fact that, in accordance with the case-law, 41 in order for there to be a transfer of respon- 49. In its reply, Aalborg maintains that it is impossible to speak of the same legal entity or the same economic entity when a third 4 1 — J o i n e d Cases 40/73 to 48/73, 50/73. 54/73 to 56/73, undertaking acquires 50% of the capital of 111/73, 113/73 and 114/73 Sinker Unie md Others v the new company. The Commission replies Commission [1975] HCR 1663, paragraphs 74 to 88; Joined Cases 29/83 and 30/83 CRAM and Rhemzmk v that the economic entity is the same when Commission [19841 F.CR 1679, paragraph 9; and Case C-49/92 P Commission v Anic [1999] ECR I-4125, all the means of production used in the paragraph 145. manufacture of cement are transferred

52. In its reply, the appellant states that it had no reason to correct the reference to the addressee of the objections, since the Statement of Objections was based on a different theory from that subsequently accepted in the Decision, namely the fact 50. The judgment under appeal did not that the cartel still existed. However, that annul the Commission Decision for failing approach was altered in the Decision, when to state reasons when determining the the infringement was identified with refer- person responsible for the infringement ence to specific meetings and periods, so and therefore, in Aalborg's opinion, it must that the question of the addressee became be set aside. At paragraph 1336 of the essential. Aalborg could not and cannot be judgment the Court of First Instance states held responsible for the cartel during the that in its reply to the Statement of period with which the Decision, unlike the Objections, Aalborg did not say that it Statement of Objections, connects the could not be held responsible for the infringement, since at that time it had not activities of the former cement manufac- even been formed. turer. In those circumstances, the Commis- sion was not required to state in the Decision the reasons why Aalborg was deemed responsible for the activities of the former cement manufacturer. That criterion of passivity applied by the Court of First Instance must, in the appellant's submission, be rejected in its entirety as 53. In its rejoinder, the Commission con- contrary to fundamental rights. tends that the appellant cannot complain, I-150

54. This complaint by Aalborg may be divided into two parts, one procedural and the other substantive. The first refers to the failure to state reasons when deter- mining the legal person responsible. 57. In the Statement of Objections the Commission set out certain of the facts in respect of which, no matter who was the actual author — the former cement manu- facturer or Aalborg —, it attributed respon- sibility to Aalborg, which, in its reply to the Statement of Objections, did not formulate 55. From that aspect, the plea is inadmiss- any consideration on the matter. Thus, the ible, since it is formulated not as a criticism Commission was not required to explain a of the judgment but as a reiteration of the argument set out in the application, which was answered at paragraph 1336 of the 42 — Sec, among the most recent authorities. Joined Cases judgment. For the remainder, the defects in C-15/98 and C-105/99 Italy and Sardegna lines v Com- mission [2000] ECR I-8855, paragraph 65, and Case the reasoning on which the Decision is C-120/99 Italy v Council 12001) ECR I-7997, paragraph 28. based do not affect the judgment under 43 — See Case C-138/95 Affish [1997] ECR I-4315, paragraph appeal, for the simple reason that the Court 63, and Italy v Council, cited in the preceding footnote, paragraph 27. of First Instance states that the lacuna is 44 — See Italy and Sardegna Lines v Commission, paragraph 65, irrelevant. and Italy v Council, paragraph 29.

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61. If by the expression 'one and the same C — An unwarranted transfer of respon- economic entity' the Court of First Instance sibility wished to reflect the fact that Aalborg continued the activity of the former cement manufacturer, whose human and material resources were transferred to Aalborg, then to my mind its assessment is correct. But if, 59. On this point, Aalborg begins by dis- on the other hand, it means that in reality puting the finding made at paragraphs both are the same organisation or, put 1335 and 1336 of the contested judgment more graphically, 'the same person in that it and the former cement manufacturer different clothes', the Court of First 'constituted one and the same economic Instance is mistaken, because the fact that entity for the purposes of applying the United Kingdom group Blue Circle Article 85(1) of the Treaty'. owns half of the appellant's share capital cannot be ignored. 45 — See paragraph 1336 of the judgment. 46 — The fact that Aalborg did not raise the issue during the administrative procedure does not prevent it from raising it 47 — 'Blue Circle Industries Plc... is a group which controls a during the judicial procedure. There is no limit to the number of companies throughout the world engaged in the arguments which, in defence of their rights, the applicants production of cement and ready-to-use concrete and the may rely on before the Court of First Instance. They marketing and transport of cement and clinker' (Decision, cannot make claims which they did not put forward during recital 5, paragraph 14). Clinker is a standard product the administrative procedure (in the present case, that it from which all types of cement are derived; it is obtained was inappropriate to deliver a decision imposing sanc- by burning a mixture of calcareous materials containing tions), but in order to provide grounds for those claims chalk and lime, with argillaceous products such as shales, they may rely on whatever legal grounds they deem slate and sand (see the Decision, recital 6, paragraphs 1 appropriate, even though they have not used them before. and 2).

63. In providing its answer, the Court of Justice must begin by setting out a general principle of law, developed in order to limit the exercise of ins puniendi by the public authorities: the principle that punishment should only be applied to the offender, which complements the principle of culpa- 66. It happens, however, that when acting bility, whose first and most important in a sector such as protection of compe- manifestation is that only the perpetrator tition in the internal market, it is necessary can be charged in respect of unlawful to face up to complicated conduct, mani- conduct. fested in agile behaviour by complex organisational structures. That reality and the principle of effectiveness, which demands an attentive defence of compe- tition in the common market, form the basis of the case-law of the Court of Justice to which Aalborg refers in its appeal. 64. That principle, like all the safeguards derived from criminal law, requires great caution when it is applied to administrative proceedings, since, when it comes to impos- ing penalties or making compensation for unlawful conduct, a system of objective responsibility, or strict responsibility, is unacceptable.

67. It emerges from that case-law that the anti-competitive conduct of one company may be attributed to another, which assumes responsibility, if two conditions 65. Although, in the case of legal persons, are satisfied: first, that the new company the principle must be applied in a different pursues the activity of the author of the way, there is no reason to abolish the facts, to the point at which there is subjective element of guilt, which none the less undergoes a process of objectivisation. In collective entities there is no volitive 48 — Legal persons are also a fiction.

69. In the present case the second of those requirements is not satisfied. The entity which committed the facts in respect of which the proceedings were brought, the former cement manufacturer, continued to exist as a holding company, owning 50% 71. Second, because the 'one and the same of Aalborg's share capital. Consequently, economic entity' test, as the key to the Aalborg could not be held responsible for transfer of responsibility from the former the conduct of that company and, in cement manufacturer to Aalborg, is based on an objective concept which is open to challenge. Irrespective of the mistake in the 49 — See Suiker Unie and Others v Commission, paragraph 84, assertion, since a third party (Blue Circle) CRAM und Rheinzink v Commission, paragraph 9, and Commission v Anic, paragraph 145. holds 50% of the appellant's share capital, 50 — Commission v Anic, paragraph 145. In that judgment the fixing the objective in the activity and not Court of Justice rejected the argument put forward, in order to avoid responsibility, by a company on which a in the person carrying it out, irrespective of fine was imposed, that it had transferred to another company the activity in which the infringement was committed. The Court of Justice held that 'the "economic continuity" test can only apply where the legal person responsible for running the undertaking has ceased to exist 51 — Case C-286/98 P Stora Kopparbergs Bergslags v Commis- in law after the infringement has been committed'. sion [2000] ECR I-9925, paragraph 37.

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3 — Breach of the principles governing the imposition of fines (fourth plea in law) 74. I must make clear, however, that the scope of the judgment of the Court of Justice most go further than is apparently indicated by the first lines of the grounds of this plea in law, where Aalborg refers only A — Arguments of the parties to the Head Delegates' meeting of 14 January 1983 and to the infringement referred to at Article 1 of the Decision. However, it concludes the plea by reques- 76. Should the third plea in law be upheld, ting that the judgment under appeal be set there would be no need to examine the

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remaining pleas. However, in case the application of a mechanical method of Court of Justice does not accept my sug- setting the fines,52 in which there was no gestion, I shall proceed with my examin- examination of the individual role of each ation of the appeal and propose the undertaking. answers which I consider to be in accord- ance with the law.

52 — The Commission drew a distinction between 'direct' participants, namely those present at the meeting of 14 January 1983, and 'indirect' participants. The former 79. In the appellant's submission, the prin- were fined 4% of their 1992 turnover in the market for grey cement and the latter 2.8% of their corresponding ciple of proportionality was ignored by the turnover (see paragraphs 4731 and 4815 of the judgment).

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B — The criteria used by the Commission in imposing the fines 86. As regards the market in grey cement, the only market in which anti-competitive conduct was imputed to Aalborg, the Commission decided not to penalise each individual type of conduct but to impose an overall fine on each undertaking, since the 83. For the purpose of analysing these Cembureau agreement and all the measures complaints, it is appropriate to refer to the structure of the body of the Decision and of the criteria used in setting the fines. 53 — See recital 65, paragraph 7, of the Decision.

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implementing it were connected. 54 That the conclusion of the... agreement', or in approach is legitimate and is based on the the measures and arrangements agreed to Commission's power to adopt a single supplement and implement it. It also con- decision covering several infringements. 55 sidered the duration of both. 57

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companies which had taken part in meas- 93. The Court of First Instance upheld ures implementing the agreement and Aalborg's application in part because, in designed to protect home markets. 59 calculating the fine which it imposed on it, the Commission considered that it had participated in the Cembureau cartel for 122 months, whereas the evidence before the Court showed that the actual duration of its participation was 71.5 months. 62 Then, taking into account that figure and applying the method of calculation used by the Commission, the Court of First Instance 91. In the second category, the Commis- reduced the amount of the fine in propor- sion also distinguished between three levels tion. 63 of responsibility: (1) the undertakings which had participated only in the meas- ures implementing the Cembureau agree- ment that were designed to channel produc- tion surpluses to non-member countries; (2) those which, although they had taken part in the measures designed directly to protect 94. It is this approach, whereby the Court home markets, had tried to avoid imple- of First Instance approved the distinction menting the Cembureau principle; and (3) between direct participants and indirect Ciments luxembourgeois, which, although participants, that in the appellant's sub- a direct member of Cembureau and mission constitutes an infringement of although having participated in the Head Article 15(2) of Regulation No 17 and a Delegates' meetings at which the Cem- breach of the principles of equal treatment bureau agreement or principle was and proportionality in the imposition of the adopted, had not put any implementing fines. measure into effect. 60

C — Compliance with the principles of proportionality and equal treatment

99. The Court of Justice has held that the gravity of infringements has to be deter- mined by reference to numerous factors, such as the particular circumstances of the 96. I consider at the outset that this plea in case, its context and the dissuasive effect of law is also unfounded. fines, and has further stated that no binding or exhaustive list of criteria has been drawn up. 64

97. The penalty has a twofold purpose: it is meant to be punitive and at the same time deterrent. It is intended to penalise conduct 100. To my mind, there are three criteria and to discourage those responsible, and central to this assessment: the nature of the also any other prospective offenders, from infringement, the impact on competition engaging in anti-competitive conduct. It and the geographical scope of the market must therefore be suitable for those pur- concerned, and each of these must be poses, while striking a proper balance so considered from an objective aspect, that that the fine punishes the conduct which it of the infringement itself, and from a penalises and at the same time is exemp- subjective aspect, that of the undertaking lary. responsible. 65

64 — See Joined Cases 100/80 to 103/80 Musique diffusion française and Others v Commission [1983] ECR 1825, paragraph 120, and Case C-219/95 P Ferriere Nord v Commission [1997] ECR I-4411, paragraph 33; see also order of 25 March 1996 in Case C-137/95 P SPO and Others v Commission [1996] ECR I-1611, paragraph 54. 98. From the first aspect, the retributive 65 — In the work cited above, E. David states that Ma gravité s'apprécie selon trois critères: la nature de l'infraction, son aspect, as a corollary of the principle that impact sur le marché lorsqu'il est mesurable et le marché géographique et à deux niveaux: ceux de l'infraction et de the punishment must be applied solely to l'entreprise' (p. 552).

103. The requirement that the penalty be proportionate to the gravity of the infringe- ment has the consequence that when an infringement has been committed by a number of persons, 66 it is necessary to 106. There is nothing unlawful in that examine, using the abovementioned guide- approach, since, as I have already said, lines, the relative gravity of the partici- the gravity of an infringement may be pation of each. 67 That is a requirement of assessed regard being had to the harm the principle of equal treatment, which which the conduct has caused to the demands that the fine be the same for all economy. As the Court of First Instance undertakings in the same situation and stated at paragraph 4966 of the contested prevents those in a different situation from judgment, each of the undertakings which being punished with a similar penalty. participated in the Cembureau agreement 'sought to ensure non-transhipment to home markets by means of the number of 66—By definition, infringements of Article 81 EC assume collective conduct. measures deemed necessary in the light, in 67 — See Sinker Unie andOthers v Commission, cited above, particular, of its commercial interests and paragraph 623, and Hercules Chemicals v Commission, the geographical situation of its natural cited above, paragraph 110.

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107. Thus, Aalborg's suggestion that other undertakings which were also included in the group bearing greater responsibility participated in the cartel to a more inten- sive degree is misplaced, even if its involve- ment were regarded not as intentional but as negligent, because, for the purposes of competition, infringements committed carelessly are no less serious than those committed deliberately. The Court of First Instance was not required to ascertain, in order to determine the gravity of the infringement, whether it had been com- mitted on purpose or negligently. 68 In competition matters, the degree of culpa- bility determines the penalty but is not a criterion for the setting of the fine. 69 109. Consequently, if the criteria used by 68 — See order in SPO and Others v Commission, cited above, the Commission are consistent with the paragraphs 55 and 57. principles governing the imposition of 69 — According to the case-law of the Court of Justice, fines, the reduction which the Court of Article 15(2) of Regulation No 17 deals with two distinct matters. First, it lays down the conditions which must be First Instance made by following the same fulfilled to enable the Commission to impose fines (initial conditions); these include the condition concerning the rules also satisfied them. intentional or negligent nature of the infringement (first subparagraph). Secondly, it governs determination of the amount of the fine, which depends on the gravity and duration of the infringement (order in SPO and Others v Commission, cited above, paragraph 53, and judgment in 70 — See recital 65, paragraph 9, of the Decision and paragraph Verriere Nord v Commission, also cited above, paragraph 4968 of the judgment. 32). 71 — Paragraph 4968, in fine, of the contested judgment.

112. On this point, Aalborg believes that the contested judgment should be set aside A — Arguments of the parties on three grounds: first, because it incor- rectly holds that the agreement lasted until 31 December 1988, classifying the annual exchanges of information as measures implementing the agreement referred to in 111. Before the Court of First Instance, Article 1 of the Decision; second, because, Aalborg stated that the administrative pro- also erroneously, it attributes responsibility cedure commenced with notification of the for the infringement referred to in Statement of Objections, on 27 November Article 4(1) of the Decision, namely belong- 1991. Before that date, the Commission did ing to the Cembureau Task Force, beyond not send it any request for information or 9 September 1986 and, thus, also for the carry out any investigations at its premises. conduct defined in Article 4(3)(a), designed Consequently, under Articles 1 and 2 of to withdraw Calcestruzzi as a customer Regulation No 2988/74 concerning limi- from the Greek producers; and, third, tation periods, 72 no penalty can be because in rejecting the objection that the imposed on it, since the last evidence of proceedings were time-barred, it failed to its participation in the illegal acts refers to state reasons. 9 September 1986, when its representative attended the meeting in Baden-Baden, i.e. more than five years before it received the Statement of Objections. That argument was rejected in paragraph 4797 of the judgment under appeal, in which it was held that the appellant had participated continuously from 14 January 1983 to

115. On this last point, Aalborg replies that the principle of legal certainty has the effect 118. To begin at the end, with the unlawful that investigations carried out in respect of omission, the plea is inadmissible, if it is other persons and not notified to it cannot taken to mean that the complaint is interrupt the relevant time; in its rejoinder, directed against the Commission's silence, the Commission invokes Article 2(2) of and manifestly unfounded, if it is regarded Regulation No 2988/74 and the judgment as challenging the 'inadequate' reasoning of of the Court of First Instance in Limburgse the Court of First Instance. Vinyl Maatschappij and Others v Commis- sion. 73

119. If Aalborg's complaint is directed against the Commission's behaviour, it is misplaced, since the object of an appeal is 116. Aalborg concludes this final plea by the contested judgment and not the prior claiming that the contested judgment must administrative procedure. In order to found the objection before the Court of Justice, it is not sufficient to reproduce without more 73 — Joined Cases T-305/94 to T-307/94, T-313/94 to the arguments already raised at first T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 [1999] ECR II-931. instance.

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C — The correctness of the response of the Court of First Instance

121. In the appellant's submission, the 123. I am therefore able to state that, as exchanges of price information do not regards the setting-up of the European Task deserve to be classified as implementing Force and the Calcestruzzi actions, there is the Cembureau agreement and, con- one aspect of the plea which must be sequently, the period during which the rejected. That concerns the finding that infringement was committed cannot be Aalborg's participation in those practices extended to 31 December 1988. Nor can lasted until 31 May and 15 March 1987, the appellant be held responsible for setting respectively. That assertion is an evidential up the European Task Force and for the inference which is neither arbitrary nor Calcestruzzi action because of its passive unreasonable and which, accordingly, is presence at the Baden-Baden meeting; and not amenable to appeal on a point of law. there is even less reason for extending its responsibility for those facts to 31 May and 15 March 1987, respectively. 74 — Sec paragraphs 4330 to 4332 of the judgment.

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127. If a company participates with its competitors in the market in one or more meetings from which an anti-competitive agreement emerges, the technique of pre- 125. As regards the duration of the sumptions makes it possible to infer, unless infringement relating to the Calcestruzzi the contrary is expressly shown, that that actions, the argument is also inadmissible company forms part of the cartel, especially because, as will be appreciated on reading if it subsequently takes part in measures to the contested judgment, Aalborg did not implement the anti-competitive agreement. raise the issue at first instance and, accord- ingly, as a new issue, it cannot be dealt with on appeal. At paragraphs 3301 to 3310 of the judgment under appeal, the arguments of certain applicants concerning the dur- ation of the infringement are set out, but there is not the slightest reference to any of those raised by Aalborg, which, fur- thermore, has not complained in the appeal 128. Proof by presumptions is based on the logic of reason and also on common understanding and experience. For that 75 — See paragraphs 2794 to 2796 of the contested judgment. purpose, it is necessary to proceed from 76 — See paragraphs 2814 and 2815 of the judgment. certain proven events which, by a mental I-166

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process consistent with the rules of human pation in an anti-competitive agreement discretion, make it possible to consider that would be demonstrated by proof by pre- certain facts are proven. sumptions, without prejudice to the possi- bility that that presumption, like all pre- sumptions iuris tantum, may be rebutted by other evidence.

132. In so far as it refers to the exchanges 130. That is what the Court of Justice of price information, 79 the Court of First meant in Commission v Anic, cited above, Instance, in holding that the Commission's where it held that the Court of First finding was correct, proceeded from certain Instance was entitled to conclude, without fully proven and undisputed facts: (1) the unduly reversing the burden of proof, that Head Delegates' meetings at which concern since it was established that Anic had for the marked fall in the level of certain participated in the meetings at which price prices was expressed and at which specific initiatives had been decided on, planned exchanges of information on prices took and monitored, it was for Anic to adduce place; (2) the table headed 'Domestic evidence that it had not subscribed to those prices', referred to at paragraph 1646 of initiatives. 78As will be appreciated, for the the contested judgment, distributed at the Court of Justice, an undertaking's partici- Head Delegates' meeting of 30 May 1983; 80 and (3) the existence of the

77— Sec paragraph 1426 (the Cembureau agreement), para- graphs 2600 and 2656 (the setting-up of the European 79 — In particular those described at Article 2(2)(b) of the Task Force) and paragraphs 3202 to 3205 (the Calces- Decision, which arc those to which Aalborg refers in this truzzi action). plea in law. 78 — See paragraph 96. The Court of Justice held to the same 80 — The judgment mistakenly states that this table was effect in Case C-199/92 P Hüls v Commission [1999] ECR distributed at the meeting of 14 January 1983, but at I-4287, paragraph 155, and Case C-235/92 P Montecatini recital 16, paragraph 5, the Decision refers to the meeting v Commission [1999] ECR I-1439, paragraph 181. of 30 May 1983.

135. After what has been said, the argu- 134. For the remainder, the Court of First ments put forward by Aalborg to advance Instance does not state at any point in the the date of termination of the infringements are demolished, so that the limitation period on which it relies and the con- 81 — See paragraph 1643 of the judgment under appeal. sequent infringement of Article 1 of Regu- 82 — The exchanges 'in fact enabled an undertaking with an order from a potential customer in another member lation No 2988/74 must be rejected and, country to know the general level of prices in force at accordingly, this plea must be rejected. that time in that country and to align its export prices accordingly, so as to dissuade that customer from seeking cement outside his country, and so avoid competing with local producers' (paragraph 1642 of the judgment). 83 — See paragraphs 1644 to 1646 of the judgment. 84 — See paragraphs 1634 and 1638 of the contested judgment.

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85 — In my opinion in Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, footnote 70, I pointed out that it is an option recognised in Article 54 of the EC Statute of the Court of Justice, which provides: 'If the appeal is well founded, the Court of Justice shall quash the decision of the Court of First Instance. It may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the Court of First Instance for VI — Costs judgment.' One of the cases in which the opportunity offered by that provision may be taken is that of error in iudicando, provided that the account of the facts is complete and sufficient to give final judgment and no evidence needs to be taken. This course appears to have been taken in the case-law of the Court of Justice, although the Court has never stated for what reason it considers that the state of the proceedings enables it to give judgment itself, confining itself to laconic statements such as 'this is the case' (Case C-345/90 P Parliament v Manning [1992] ECR I-949, particularly at I-989; and Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555, at I-2648). 140. The costs of this appeal must also be In short, it will be appropriate for the Court of Justice to give judgment on the substance where it is clear from the borne by the Commission, pursuant to the documents before it that the case is ready for judgment (see J. Héron, Droit judiciaire privé, Montchrétien, Paris, first paragraph of Article 122, read with 1991, p. 517; J. Vincent and S. Guinchard: Procedure the first subparagraph of Article 69(2) of civile, Dalloz, Paris, 1994, p. 922), in view of the fact that the Community legislature has created it as a modern court the Rules of Procedure of the Court of of cassation, enjoying full freedom to give final judgment Justice. where it considers that it is necessary to do so (see J. Nieva Fenoli, El recurso de casación ante el Tribunal de justicia de las comunidades Europeas, Bosch, Barcelona, 1998, p. 430). 86 — The Decision was adopted in 1994. 87 — Consolidated version, published in OJ 2001 C 34, p. 39.

(3) grant Aalborg's application and annul Commission Decision 94/815/EC of 30 November 1994 in its entirety in so far as it concerns that undertaking;

(4) order the Commission to pay the costs incurred in the proceedings at first instance and in the present appeal.

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