Avis juridique important

Judgment of the Court of 15 October 2002. - Limburgse Vinyl Maatschappij NV (LVM) (C-238/99 P), DSM NV and DSM Kunststoffen BV (C-244/99 P), Montedison SpA (C-245/99 P), Elf Atochem SA (C-247/99 P), Degussa AG (C-250/99 P), Enichem SpA (C-251/99 P), Wacker-Chemie GmbH and Hoechst AG (C-252/99 P) and Imperial Chemical Industries plc (ICI) (C-254/99 P) v Commission of the European Communities. - Appeal - Competition - Polyvinylchloride (PVC) - Article 85(1) of the EC Treaty (now Article 81(1) EC) - Annulment of a Commission decision - New decision - Documents predating the first decision - Res judicata - Principle of non bis in idem - Limitation - Reasonable period - Statement of reasons - Access to the file - Fair hearing - Professional secrecy - Self-incrimination - Private life - Fines. - Joined cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P. European Court reports 2002 Page I-08375

Summary Parties Grounds Decision on costs Operative part

1. Court of First Instance - Organisation - Composition of chambers - Absence or inability to attend of a judge - Permanent or temporary - Not relevant

(EC Statute of the Court of Justice, Art. 15; Rules of Procedure of the Court of First Instance, Arts 10(1) and 32(1))

2. Procedure - Res judicata - Final judgment in the matter given on appeal by the Court of Justice - Scope

(EC Treaty, Art. 176 (now Art. 233 EC); EC Statute of the Court of Justice, Art. 54, para. 1)

5. Community law - Principles - Rights of the defence - Scope - Competition - Administrative procedure - Scope of that principle after annulment of the first decision of the Commission - Hearing of undertakings - Consultation of Advisory Committee on Restrictive Practices and Dominant Positions - Hearing Officer

(Council Regulation No 17, Arts 10(3) and 19(1); Commission Regulation No 99/63, Arts 1 and 4)

(EC Treaty, Arts 85 and 189 (now Arts 81 EC and 249 EC) and Art. 173 (now, after amendment, Art. 230 EC))

7. Competition - Administrative procedure - Limitation periods in proceedings - Suspension - Commission decision which is the subject of proceedings before the Court of Justice - Scope

(Council Regulation No 2988/74, Arts 2 and 3)

(Council Regulation No 17)

9. Appeals - Pleas in law - Infringement of the obligation to act within a reasonable period in administrative procedures relating to competition - Assessment falling within the jurisdiction of the Court of First Instance - Assessment to be made in the light of the specific circumstances - Review by the Court of Justice - Limits

(Art. 225 EC; EC Statute of the Court of Justice, Art. 51, para. 1)

10. Competition - Administrative procedure - Powers of the Commission in investigations - Investigations carried out pursuant to an authorisation - Voluntary cooperation of an undertaking - Consequences of an ability to show undue interference by a public authority

(Council Regulation No 17, Art. 14(2))

11. Community law - Principles - Rights of the defence - Observance in administrative procedure - Competition - Decision requiring information, addressed to an undertaking - Infringement of the privilege against self-incrimination - Assessment to be made by the Court of First Instance in the light of the specific circumstances - Review by the Court of Justice - Limits

(Council Regulation No 17, Art. 11(2) and (5))

12. Competition - Administrative procedure - Powers of the Commission in investigations - Use of information obtained during an investigation relating to a different proceeding - Limits

(Council Regulation No 17, Arts 14(2) and (3) and 20(1))

13. Competition - Administrative procedure - Access to the file - Purpose - Observance of the rights of the defence - Infringement - Consequences

(Council Regulation No 17, Art. 19(1); Commission Regulation No 99/63, Arts 3 and 7 to 9)

14. Appeals - Pleas in law - Infringement of the rights of the defence resulting from the refusal to grant access to the documents used as evidence against the enterprise in an administrative procedure applying competition rules - Plea requiring an appraisal of the facts falling within the exclusive jurisdiction of the Court of First Instance and not subject, save for distortion, to review by the Court of Justice

(Art. 225 EC; EC Statute of the Court of Justice, Art. 51)

15. Procedure - Measures of organisation of procedure - Oral procedure - Invitation to submit common pleas collectively - Permissibility

(Rules of Procedure of the Court of First Instance, Art. 64(2))

16. Procedure - Introduction of new pleas in law in the course of the proceedings - Plea based on matters coming to light during the proceedings - Matters coming to light following a measure of organisation of procedure granting access to the Commission's file - Permissibility

(Rules of Procedure of the Court of First Instance, Art. 48(2), subpara. 1)

17. Procedure - Reply - Procedural requirements - Summary of the pleas in law which the application is based on - Reference to arguments put forward during the oral procedure in relation to pleas in law contained in the application - Admissibility

(Rules of Procedure of the Court of First Instance, Arts 44(1)(c) and 48(2))

(Rules of Procedure of the Court of Justice, Art. 112(1), subpara. 1(c))

19. Acts of the institutions - Statement of reasons - Obligation - Scope - Decision applying competition rules - Decision imposing penalty adopted following annulment of a previous decision with the same purpose

(EC Treaty, Arts 85(1) and 190 (now Arts 81(1) EC and 253 EC) and Art. 89 (now, after amendment, Art. 85 EC))

(EC Treaty, Art. 190 (now Art. 253 EC); Council Regulation No 17, Art. 15(2), subpara. 2)

21. Competition - Agreements, decisions and concerted practices - Prejudice to competition - Criteria of assessment - Anti-competitive object - Sufficient to establish the existence thereof

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

22. Appeals - Jurisdiction of the Court of Justice - Challenge, on grounds of fairness, to the assessment by the Court of First Instance in regard to the amount of fines imposed on undertakings which have infringed the Treaty competition rules - Excluded - Assessment called in question for reasons based on infringement of the principle of non-discrimination - Permissibility

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

23. Actions for annulment - Jurisdiction of the Community judicature - Actions concerning penalties imposed on undertakings which have infringed the Treaty competition rules - Unlimited jurisdiction - Judgment granting annulment without exercise of that jurisdiction - Effect

(EC Treaty, Art. 172 (now Art. 229 EC); Council Regulation No 17, Art. 17)

$$1. For the purpose of the application of the rules laid down in Article 15 of the Statute of the Court of Justice and Articles 10(1) and 32(1) of the Rules of Procedure of the Court of First Instance, which relate to the composition of the chambers of the Court First Instance hearing a case, it is not the permanent or temporary nature of the inability of a judge to attend which is decisive. If a temporary absence or inability to attend justifies the change in the composition to allow an uneven number of members to sit, the same must apply, a fortiori, to the case of a permanent inability to attend as a result of, for example, the expiry of a member's term of office.

( see paras 35-38 )

2. Where the Court of Justice itself gives final judgment on the dispute in accordance with Article 54 of the Statute of the Court of Justice by accepting one or more pleas raised by an applicant, it does not automatically settle all the points of fact and law raised by that applicant.

The authority of res judicata attaching to a judicial decision which itself limits the obligations imposed under Article 176 of the EC Treaty (now Article 233 EC) on an institution whose act has been declared void extends only to matters of fact and law actually or necessarily settled by that judicial decision.

( see paras 44, 47-48 )

3. The principle of non bis in idem, which is a fundamental principle of Community law also enshrined in Article 4(1) of Protocol No 7 to the European Convention on Human Rights, precludes, in competition matters, an undertaking from being found guilty or proceedings from being brought against it a second time on the grounds of anti-competitive conduct in respect of which it has been penalised or declared not liable by a previous unappealable decision.

The application of that principle therefore presupposes that a ruling has been given on the question whether an offence has in fact been committed or that the legality of the assessment thereof has been reviewed.

Thus, the principle of non bis in idem merely prohibits a fresh assessment in depth of the alleged commission of an offence which would result in the imposition of either a second penalty, in addition to the first, in the event that liability is established a second time, or a first penalty in the event that liability not established by the first decision is established by the second.

On the other hand, it does not in itself preclude the resumption of proceedings in respect of the same anti-competitive conduct where the first decision was annulled for procedural reasons without any ruling having been given on the substance of the facts alleged, since the annulment decision cannot in such circumstances be regarded as an acquittal' within the meaning given to that expression in penal matters. In such a case, the penalties imposed by the new decision are not added to those imposed by the annulled decision but replace them.

( see paras 59-62 )

4. Annulment of a Community measure does not necessarily affect the preparatory acts preceding it since the procedure for replacing such a measure may, in principle, be resumed at the very point at which the penalised illegality occurred.

( see para. 73 )

5. In all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of Community law which must be complied with, even if the proceedings in question are administrative proceedings.

Article 19(1) of Regulation No 17 and Article 4 of Regulation No 99/63, which apply that principle, require the Commission to deal in its final decision only with those objections on which the undertakings and associations of undertakings concerned have had the opportunity to put their case.

Accordingly, observance of the rights of the defence requires that each undertaking or association of undertakings concerned be given the opportunity to be heard as to the objections raised against each of them which the Commission proposes to deal with in the final decision finding infringement of the competition rules.

Where, following the annulment of a decision penalising undertakings for infringement of Article 85(1) of the Treaty (now Article 81(1) EC) on account of a procedural defect affecting only the manner in which it was finally adopted by the college of Commissioners, the Commission adopts a new decision with the same substantial content and based on the same complaints, it is not obliged to hold a new hearing of the undertakings concerned with the result that it is also not required either to consult again the Advisory Committee on Restrictive Practices and Dominant Positions or to request fresh intervention by the Hearing Officer.

( see paras 85-87, 114, 118, 122, 126 )

6. Although drafted and published as a single decision, a decision adopted in a competition matter with respect to several enterprises must be regarded as a group of individual decisions establishing, in relation to each of the undertakings to which it is addressed, the breach or breaches which that undertaking has been found to have committed and, where appropriate, imposing on it a fine. It can be annulled only with respect to those addressees which have successfully brought an action before the Community judicature, and remains binding on those addressees which have not applied for its annulment.

( see paras 99-100 )

7. Article 3 of Regulation No 2988/74 concerning limitation periods in proceedings and the enforcement of sanctions relating to transport and competition protects the Commission against the effect of the limitation period in situations in which it must await the decision of the Community judicature in proceedings beyond its control before knowing whether the contested act is or is not vitiated by illegality. Article 3 therefore deals with cases in which the inaction of the institution is not the result of a lack of diligence.

Such situations arise both in the case of actions against the interruptive measures listed in Article 2 of Regulation No 2988/74 which are open to challenge and in the case of an action against a decision imposing a fine or penalty.

Accordingly, the wording and the purpose of Article 3 cover both actions brought against the challengeable measures referred to in Article 2 and actions brought against a final decision of the Commission.

Consequently, an action brought against a final decision imposing penalties suspends the limitation period in proceedings pending delivery by the Community judicature of a final ruling on that action.

( see paras 144-147 )

8. In competition matters, the general principle that action must be taken within a reasonable period must be observed both in administrative proceedings conducted pursuant to Regulation No 17 which may lead to the penalties provided for therein and in judicial proceedings in the event of an action against the Commission's decision. The examination of whether observance of that principle was guaranteed in the administrative procedure may be divided into two successive stages, the first covering the period in which the Commission takes measures involving a complaint that an infringement has been committed and having a significant impact on the situation of the suspected undertakings and the second covering the period from notification of the statement of objections up to adoption of the final decision.

The reasonableness of a period is to be appraised in the light of the circumstances specific to each case and, in particular, the importance of the case for the person concerned, its complexity and the conduct of the applicant and of the competent authorities.

However, that list of criteria is not exhaustive and the assessment of the reasonableness of the period in question does not require a systematic examination of the circumstances of the case in the light of each of them where the duration of the proceedings appears justified in the light of one of them. The purpose of those criteria is to determine whether the time taken in the handling of a case is justified. Thus, the complexity of the case or the dilatory conduct of the applicant may be deemed to justify a duration which is prima facie too long. Conversely, the time taken may be regarded as longer than is reasonable in the light of just one criterion, in particular where its duration is the result of the conduct of the competent authorities. Where appropriate, the duration of a procedural stage may be regarded as reasonable from the outset if it appears to be consistent with the average time taken in handling a case of its type.

( see paras 179, 181-183, 187-188, 207, 210 )

9. The reasonableness of a period in an administrative procedure cannot be assessed by reference to a precise maximum limit determined in an abstract manner but, rather, must be appraised in the light of the specific circumstances of each case.

An initial general examination is carried out to determine whether the period in question is prima facie too long having regard to the procedure being conducted. If it is, a more specific examination is required as to whether there have been any actual delays which cannot be justified by the circumstances of the case.

As regards an administrative procedure relating to competition law, the Court of First Instance has exclusive jurisdiction to establish and assess the relevant facts except where those facts are clearly distorted and then, subject to review by the Court of Justice, to define their legal nature with regard to observance of the principle that decisions should be adopted within a reasonable time.

( see paras 192-194 )

10. It is apparent from Article 14(2) of Regulation No 17 that, in contrast to those ordered by a decision pursuant to Article 14(3) of that regulation, investigations carried out on a simple authorisation are based on the voluntary cooperation of the undertakings. Where an undertaking has in fact cooperated in an investigation carried out on authorisation, a complaint of undue interference by the public authority in the sphere of its private activities is unfounded if it is not substantiated by evidence showing that the Commission went beyond the cooperation offered by the undertaking.

( see paras 252-254 )

11. Infringement of the privilege against self-incrimination presupposes the exercise of coercion against the person suspected of committing a breach in order to obtain information from him and an actual interference with the right in question.

An undertaking is not obliged to reply to requests for information under Article 11(2) of Regulation No 17.

With respect to decisions requiring information adopted under Article 11(5) of Regulation No 17, the assessment of an interference with the privilege against self-incrimination requires an appraisal of the facts at the level of both the content of the decisions and the information provided in response, which does not constitute, save where the clear sense of the evidence is distorted, a question of law which is subject, as such, to review by the Court of Justice.

( see paras 275-285 )

12. Under Articles 20(1) and 14(2) and (3) of Regulation No 17, information obtained during investigations must not be used for purposes other than those indicated in the order or decision pursuant to which the investigation is carried out.

That requirement is intended to protect, in addition to the professional secrecy expressly referred to in Article 20(1) of Regulation No 17, the undertakings' defence rights, which not only form part of the fundamental principles of Community law but are also enshrined in Article 6 of the European Convention on Human Rights, the interpretation of which by the European Court of Human Rights must be taken into account by the Community judicature.

Those rights would be seriously endangered if the Commission were able to rely on evidence against undertakings which was obtained during an investigation but was not related to the subject-matter or purpose thereof.

On the other hand, it cannot be concluded that the Commission is precluded from initiating an inquiry in order to verify or supplement information which it happened to obtain during a previous investigation if that information indicates the existence of conduct contrary to the competition rules in the Treaty.

First, undertakings are in no way deprived of the protection afforded by Article 20 of Regulation No 17 if the Commission makes a new request for a document. From the point of view of the defence of their rights, they are in the same position as where the Commission no longer has the document, since it is forbidden to make direct use as evidence in a second proceeding of a document obtained in a previous proceeding. Secondly, the fact that the Commission has obtained documents in a given matter for the first time does not confer such absolute protection that those documents cannot be requested under statutory powers in another matter and used as evidence.

( see paras 274, 298-301, 305-306 )

13. Access to the file in competition cases is intended in particular to enable the addressees of statements of objections to acquaint themselves with the evidence in the Commission's file so that on the basis of that evidence they can express their views effectively on the conclusions reached by the Commission in its statement of objections. The right of access to the Commission's file is therefore designed to ensure effective exercise of the rights of the defence, which are not only fundamental principles of Community law but are also enshrined in Article 6 of the European Convention on Human Rights.

Infringement of the right of access to the Commission's file during the procedure prior to adoption of the decision can, in principle, cause the decision to be annulled if the rights of defence of the undertaking concerned have been infringed.

In such a case, the infringement committed is not remedied by the mere fact that access was made possible during the judicial proceedings relating to an action in which annulment of the contested decision is sought. Where access has been granted at that stage, the undertaking concerned does not have to show that, if it had had access to the non-disclosed documents, the Commission decision would have been different in content, but only that it would have been able to use those documents for its defence.

( see paras 315-318 )

14. The Court of First Instance's appraisal of the question whether documents to which the undertaking alleged to have infringed the Treaty rules on competition has not had access during the administrative procedure could have been used by it for its defence concerns a question of fact. Therefore, it does not - save where the clear sense of the evidence produced is distorted - constitute a question of law which is subject, as such, to review by the Court of Justice.

( see para 330-331 )

15. In accordance with Article 64(2) of the Rules of Procedure of the Court of First Instance, the purpose of measures of organisation of procedure is, inter alia, to ensure efficient conduct of the oral procedure.

In compliance with the principle of hearing both parties and the rights of the defence, which are also enshrined in Article 6 of the European Convention on Human Rights, the Court of First Instance may thus invite the parties to submit collectively their common pleas in law, in order to avoid repetition of identical arguments, with each party continuing to have the opportunity to submit its own arguments in a complementary manner.

( see paras 348-349 )

16. In accordance with the first subparagraph of Article 48(2) of the Rules of Procedure of the Court of First Instance, no new plea in law may be introduced in the course of proceedings unless it is based on matters of law or fact which come to light in the course of the procedure.

That provision in no way excludes the possibility that matters of law or fact may have been discovered in the context of a measure of organisation of procedure which, in a case involving several applicants, granted access to the Commission's file to all of them, including those which did not raise a plea in law alleging infringement of their right of access to the file.

Indeed, it authorises any new plea in law which is based on such matters. In circumstances such as those referred to in the paragraph above, the possibility cannot therefore be excluded that an applicant may introduce a new plea in law based precisely on an alleged infringement of its right of access to the file.

( see paras 369-371 )

17. A complete restatement or even a summary, in a reply, of arguments previously submitted in an oral procedure in relation to pleas contained in the application is not a precondition for the examination of those arguments by the Court of First Instance. From the oral procedure onwards, those arguments are included in the case submissions and are known to the court before which the case has been brought. They must therefore be examined by that court since, being relevant and relating to pleas already raised, they do not constitute a new plea for the purposes of Article 48(2) of the Rules of Procedure of the Court of First Instance.

( see para. 385 )

18. Where an appellant submits that the Court of First Instance did not respond to a plea, its submission cannot be challenged, in terms of the admissibility of the ground of appeal, on the basis that it does not cite any passage or part of the contested judgment as the specific object of its complaint since, by definition, it is a failure to respond that is being alleged. For the same reason, the submission cannot be challenged on the ground that it simply repeats or reproduces the plea raised at first instance.

( see para. 423 )

19. By merely referring to the Treaty establishing the European Community, the Commission states sufficient reasons for its decision to adopt, after annulment of a previous decision on account of a procedural defect concerning only the manner in which it was finally adopted by the college of Commissioners, a fresh decision penalising undertakings which have infringed Article 85(1) of the Treaty (now Article 81(1) EC). In carrying out the task assigned to it by Article 89 of the Treaty (now, after amendment, Article 85 EC), the Commission has a discretionary power to bring actions in the context of its general competition policy.

( see paras 447-449 )

20. In the context of the application of Article 85(1) of the Treaty (now Article 81(1) EC), the scope of the obligation to state reasons for the method of calculating the fine, which is imposed on the Commission by Article 190 of the Treaty (now Article 253 EC), must be determined in the light of the second subparagraph of Article 15(2) of Regulation No 17, which provides that regard shall be had both to the gravity and to the duration of the infringement'.

The essential procedural requirement to state reasons is satisfied where the Commission indicates in its decision the factors which enabled it to determine the gravity of the infringement and its duration.

That requirement does not oblige the Commission to indicate in its decision the figures relating to the method of calculating the fines; in any event, the Commission cannot, by mechanical recourse to arithmetical formulae alone, divest itself of its own power of assessment.

In the case of a decision imposing fines on several undertakings, the scope of the duty to state reasons must be assessed inter alia in the light of the fact that the gravity of the infringement depends on numerous factors, such as the particular circumstances of the case, its context and the dissuasive effect of fines, although no binding or exhaustive list of the criteria to be applied has been drawn up.

( see paras 462-465 )

21. For the purposes of applying Article 85(1) of the Treaty (now Article 81(1) EC), it is sufficient that the aim of an agreement should be to restrict, prevent or distort competition, irrespective of the actual effects of that agreement.

Consequently, in the case of agreements reached at meetings of competing undertakings, that provision is infringed where those meetings have such an aim and are thus intended to organise artificially the operation of the market. The liability of a particular undertaking in respect of the infringement is properly established where it participated in those meetings with knowledge of their aim, even if it did not proceed to implement any of the measures agreed at those meetings.

The greater or lesser degree of regular participation by the undertaking in the meetings and of completeness of its implementation of the measures agreed is relevant not to the establishment of its liability but rather to the extent of that liability and thus to the severity of the penalty.

( see paras 508-510 )

22. It is not for the Court of Justice, when ruling on questions of law in the context of an appeal, to substitute, on grounds of fairness, its own assessment for that of the Court of First Instance exercising its unlimited jurisdiction to rule on the amount of fines imposed on undertakings for infringements of Community law. The exercise of that jurisdiction in respect of the determination of those fines cannot result in discrimination between undertakings which have participated in an agreement or concerted practice contrary to Article 85(1) of the Treaty (now Article 81(1) EC).

( see paras 614, 617 )

23. Article 172 of the Treaty (now Article 229 EC) and Article 17 of Regulation No 17, in conjunction with Article 87(2)(d) of the Treaty (now Article 83(2)(d) EC), which confer on the Community judicature unlimited jurisdiction in respect of measures of the Commission imposing fines in competition matters, are concerned only with the scope of the review carried out by the Community judicature in respect of Commission decisions on competition matters. More than a simple review of legality, which merely permits dismissal of the action for annulment or annulment of the contested measure, the unlimited jurisdiction conferred on the Community judicature authorises it to vary the contested measure, even without annulling it, by taking into account all of the factual circumstances, so as to amend, for example, the amount of the fine.

However, the mere bringing of an action does not entail the definitive transfer to the Community judicature of the power to impose penalties. The Commission finally loses its power once the court has actually exercised its unlimited jurisdiction. On the other hand, where the Community judicature simply annuls a decision on the ground of illegality without itself ruling on the substance of the infringement or on the penalty, the institution which adopted the annulled measure may reopen the procedure at the stage at which the illegality was found to have occurred and exercise again its power to impose penalties.

( see paras 692-693 )

In Joined Cases C-238/99 P, C-244/99 P, C-245/99 P, C-247/99 P, C-250/99 P to C-252/99 P and C-254/99 P,

Limburgse Vinyl Maatschappij NV (LVM), established in Brussels (Belgium), represented by I.G.F. Cath, advocaat, with an address for service in Luxembourg (C-238/99 P),

DSM NV and DSM Kunststoffen BV, established in Heerlen (the Netherlands), represented by I.G.F. Cath, with an address for service in Luxembourg (C-244/99 P),

Montedison SpA, established in Milan (Italy), represented by G. Celona and P.A.M. Ferrari, avvocati, with an address for service in Luxembourg (C-245/99 P),

Elf Atochem SA, established in Paris (France), represented by X. de Roux, avocat, with an address for service in Luxembourg (C-247/99 P),

Degussa AG, formerly Degussa-Hüls AG, before that Hüls AG, established in Marl (Germany), represented by F. Montag, Rechtsanwalt, with an address for service in Luxembourg (C-250/99 P),

Enichem SpA, established in Milan, represented by M. Siragusa and F.M. Moretti, avvocati, with an address for service in Luxembourg (C-251/99 P),

Wacker-Chemie GmbH, established in Munich (Germany),

Hoechst AG, established in Frankfurt am Main (Germany),

both represented by H. Hellmann, Rechtsanwalt, with an address for service in Luxembourg (C-252/99 P),

Imperial Chemical Industries plc (ICI), established in London (United Kingdom), represented by D. Vaughan QC, D. Anderson QC, K. Bacon, Barrister, and R.J. Coles and S. Turner, Solicitors, with an address for service in Luxembourg (C-254/99 P),

appellants,

APPEALS against the judgment of the Court of First Instance of the European Communities (Third Chamber, Extended Composition) of 20 April 1999 in Joined Cases T-305/94 to T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others v Commission [1999] ECR II-931, seeking to have that judgment set aside,

the other party to the proceedings being:

Commission of the European Communities, represented by J. Currall and W. Wils, acting as Agents, assisted by M.H. van der Woude, avocat (C-238/99 P and C-244/99 P), by R.M. Morresi, avvocato (C-245/99 P and C-251/99 P), by E. Morgan de Rivery, avocat (C-247/99 P), by A. Böhlke, Rechtsanwalt (C-250/99 P and C-252/99 P), and by D. Lloyd-Jones QC (C-254/99 P), with an address for service in Luxembourg,

defendant at first instance,

THE COURT,

composed of: G.C. Rodríguez Iglesias, President, J.-P. Puissochet (President of Chamber), C. Gulmann (Rapporteur), D.A.O. Edward, A. La Pergola, P. Jann, F. Macken, N. Colneric and S. von Bahr, Judges,

Advocate General: J. Mischo,

Registrar: D. Louterman-Hubeau, Head of Division, and L. Hewlett, Administrator,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 13 June 2001, at which Limburgse Vinyl Maatschappij NV (LVM), DSM NV and DSM Kunststoffen BV were represented by I.G.F. Cath (C-238/99 P and C-244/99 P), Montedison SpA by G. Celona and P.A.M. Ferrari (C-245/99 P), Elf Atochem SA by C.-H. Léger, avocat (C-247/99 P), Degussa AG by F. Montag (C-250/99 P), Enichem SpA by M. Siragusa and F.M. Moretti (C-251/99 P), Wacker-Chemie GmbH and Hoechst AG by H. Hellmann and H.-J. Hellmann, Rechtsanwalt (C-252/99 P), Imperial Chemical Industries plc (ICI) by D. Vaughan, D. Anderson, R.J. Coles, S. Turner and S.C. Berwick, Solicitor (C-254/99 P), and the Commission by J. Currall and W. Wils, assisted by M.H. van der Woude (C-238/99 P and C-244/99 P), by R.M. Morresi (C-245/99 P and C-251/99 P), by E. Morgan de Rivery (C-247/99 P), by A. Böhlke (C-250/99 P and C-252/99 P) and by D. Lloyd-Jones (C-254/99 P),

after hearing the Opinion of the Advocate General at the sitting on 25 October 2001,

gives the following

Judgment

1 By applications lodged at the Registry of the Court of Justice between 24 June and 8 July 1999, Limburgse Vinyl Maatschappij NV (LVM'), DSM NV and DSM Kunststoffen BV, Montedison SpA (Montedison'), Elf Atochem SA (Elf Atochem'), Degussa AG (Degussa'), formerly Degussa-Hüls AG and before that Hüls AG (Hüls'), Enichem SpA (Enichem'), Wacker-Chemie GmbH (Wacker-Chemie'), Hoechst AG (Hoechst') and Imperial Chemical Industries plc (ICI') brought appeals pursuant to Article 49 of the EC Statute of the Court of Justice against the judgment of the Court of First Instance of 20 April 1999 in Joined Cases T-305/94 to T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Maatschappij and Others v Commission [1999] ECR II-931 (the contested judgment'), by which the Court of First Instance, inter alia, reduced the fine imposed on Elf Atochem and that imposed on ICI by Commission Decision 94/599/EC of 27 July 1994 relating to a proceeding pursuant to Article 85 of the EC Treaty (IV/31.865 - PVC) (OJ 1994 L 239, p. 14, hereinafter the PVC II decision') and dismissed the remainder of the applications for annulment of that decision.

I - Factual background to the dispute

2 Following investigations conducted in the polypropylene sector on 13 and 14 October 1983 pursuant to Article 14 of Council Regulation No 17 of 6 February 1962: First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87), the Commission of the European Communities commenced an inquiry concerning polyvinylchloride (PVC'). It subsequently undertook various investigations at the premises of the undertakings concerned and sent them several requests for information.

3 On 24 March 1988 it instituted on its own initiative a proceeding under Article 3(1) of Regulation No 17 against 14 PVC producers. On 5 April 1988 it sent each of those undertakings a statement of objections as provided for in Article 2(1) of Commission Regulation No 99/63/EEC of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regulation No 17 (OJ, English Special Edition 1963-1964, p. 47). All the undertakings to which that statement was addressed submitted observations in June 1988. Except for Shell International Chemical Company Ltd (Shell'), which had not requested a hearing, they were heard in September 1988.

4 On 1 December 1988 the Advisory Committee on Restrictive Practices and Dominant Positions (the Advisory Committee') delivered an opinion on the Commission's draft decision.

5 At the end of the proceeding, the Commission adopted Decision 89/190/EEC of 21 December 1988 relating to a proceeding pursuant to Article 85 of the EEC Treaty (IV/31.865, PVC) (OJ 1989 L 74, p. 1, hereinafter the PVC I decision'). By that decision, it penalised the following PVC producers for infringement of Article 85(1) of the Treaty (now Article 81(1) EC): Atochem SA, BASF AG (BASF'), DSM NV, Enichem, Hoechst, Hüls, ICI, LVM, Montedison, Norsk Hydro A/S (Norsk Hydro'), Société artésienne de vinyle SA, Shell, Solvay & Cie (Solvay') and Wacker-Chemie.

6 All those undertakings except Solvay brought actions to have that decision annulled by the Community judicature.

7 The Court of First Instance declared Norsk Hydro's application inadmissible by order of 19 June 1990 (Case T-106/89 Norsk Hydro v Commission, not published in the European Case Reports).

8 The other cases were joined for the purposes of the oral procedure and the judgment.

9 By judgment of 27 February 1992 in 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 II-315 (the judgment of the Court of First Instance of 27 February 1992'), the Court of First Instance declared the PVC I decision non-existent.

10 On appeal by the Commission, the Court of Justice, by judgment of 15 June 1994 in Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555 (the Court's judgment of 15 June 1994'), set aside the judgment of the Court of First Instance of 27 February 1992 and annulled the PVC I decision.

11 On 27 July 1994 the Commission adopted the PVC II decision in relation to the producers which had been the subject of the PVC I decision, with the exception of Solvay and Norsk Hydro. That new decision imposed on the undertakings to which it was addressed fines of the same amounts as those imposed by the PVC I decision.

12 The PVC II decision contains the following provisions:

Article 1

BASF AG, DSM NV, Elf Atochem SA, Enichem SpA, Hoechst AG, Hüls AG, Imperial Chemical Industries plc, Limburgse Vinyl Maatschappij NV, Montedison SpA, Société [a]rtésienne de [v]inyle SA, Shell International Chemical Co., Ltd, and Wacker Chemie GmbH infringed Article 85 of the EC Treaty (together with Norsk Hydro [A/S] and Solvay & Cie) by participating for the periods identified in this Decision in an agreement and/or concerted practice originating in about August 1980 by which the producers supplying PVC in the Community took part in regular meetings in order to fix target prices and target quotas, plan concerted initiatives to raise price levels and monitor the operation of the said collusive arrangements.

Article 2

The undertakings named in Article 1 which are still involved in the PVC sector in the Community (apart from Norsk Hydro [A/S] and Solvay which are already the subject of a valid termination order) shall forthwith bring the said infringement to an end (if they have not already done so) and shall henceforth refrain in relation to their PVC operations from any agreement or concerted practice which may have the same or similar object or effect, including any exchange of information of the kind normally covered by professional secrecy by which the participants are directly or indirectly informed of the output, deliveries, stock levels, selling prices, costs or investment plans of other individual producers, or by which they might be able to monitor adherence to any express or tacit agreement or to any concerted practice covering price or market-sharing inside the Community. Any scheme for the exchange of general information to which the producers subscribe concerning the PVC sector shall be so conducted as to exclude any information from which the behaviour of individual producers can be identified, and in particular the undertakings shall refrain from exchanging between themselves any additional information of competitive significance not covered by such a system.

Article 3

The following fines are hereby imposed on the undertakings named herein in respect of the infringement found in Article 1:

(i) BASF AG: a fine of ECU 1 500 000;

(ii) DSM NV: a fine of ECU 600 000;

(iii) Elf Atochem SA: a fine of ECU 3 200 000;

(iv) Enichem SpA: a fine of ECU 2 500 000;

(v) Hoechst AG: a fine of ECU 1 500 000;

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

(vii) Imperial Chemical Industries plc: a fine of ECU 2 500 000;

(viii) Limburgse Vinyl Maatschappij NV: a fine of ECU 750 000;

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

(x) Société [a]rtésienne de [v]inyle SA: a fine of ECU 400 000;

(xi) Shell International Chemical Company Ltd: a fine of ECU 850 000;

(xii) Wacker Chemie GmbH: a fine of ECU 1 500 000.'

II - The actions brought before the Court of First Instance and the contested judgment

13 By applications lodged at the Registry of the Court of First Instance between 5 and 14 October 1994, LVM, Elf Atochem, BASF, Shell, DSM NV and DSM Kunststoffen BV (collectively DSM'), Wacker-Chemie, Hoechst, Société artésienne de vinyle, Montedison, ICI, Hüls and Enichem brought actions before the Court of First Instance.

14 Each of the parties sought annulment of the PVC II decision in whole or in part and, in the alternative, annulment or reduction of the fine imposed on it. Montedison also claimed that the Commission should be ordered to pay damages.

15 By the contested judgment, the Court of First Instance:

- joined the cases for the purposes of the judgment;

- annulled Article 1 of the PVC II decision in so far as it found that Société artésienne de vinyle had participated in the infringement complained of after the first half of 1981;

- reduced the fines imposed on Elf Atochem, Société artésienne de vinyle and ICI to EUR 2 600 000, EUR 135 000 and EUR 1 550 000 respectively;

- dismissed the remainder of the applications;

- ruled on the costs.

III - Forms of order sought in the appeals

16 LVM and DSM claim that the Court should:

- annul in whole or in part the contested judgment and end the procedure or, in the alternative, refer the case back to the Court of First Instance for resumption of the proceedings;

- annul in whole or in part the PVC II decision;

- annul the fines imposed on the appellants or reduce the amounts thereof;

- order the Commission to pay the costs of the proceedings at first instance and on appeal.

17 Montedison claims that the Court should:

- annul the contested judgment;

- annul the PVC II decision;

- refer the case back to the Court of First Instance;

- reduce the amount of the fine to a minimal sum;

- order the Commission to pay the costs of the proceedings at first instance and on appeal.

18 Elf Atochem claims that the Court should:

- annul the contested judgment and give a final ruling on the dispute;

- order the Commission to pay the costs.

19 Degussa claims that the Court should:

- annul the contested judgment in so far as it dismisses its application and orders it to pay the costs;

- annul Articles 1, 2 and 3 of the PVC II decision in so far as they concern it;

- order the Commission to pay the costs of the proceedings at first instance and on appeal.

20 Enichem claims that the Court should:

- annul the parts of the contested judgment challenged by it and consequently annul the PVC II decision;

- in the alternative, annul those parts of the contested judgment which adversely affect it and consequently annul or reduce the fine imposed;

- order the Commission to pay the costs of the proceedings at first instance and on appeal.

21 Wacker-Chemie and Hoechst claim that the Court should:

- annul paragraphs 4 and 5 of the operative part of the contested judgment in so far as they concern them;

- annul the PVC II decision in so far as it concerns them;

- in the alternative, reduce the amount of the fines imposed on them;

- in the further alternative, refer the case back to the Court of First Instance for a new ruling;

- order the Commission to the pay the costs or, in the event of a referral back to the Court of First Instance, reserve the issue of costs for a decision by that court.

22 ICI claims that the Court should:

- annul the contested judgment in so far as it concerns ICI;

- annul the PVC II decision in so far as it concerns ICI or, failing that, refer the case back to the Court of First Instance;

- annul the fine, which was reduced to EUR 1 550 000 by the Court of First Instance, or further reduce the amount thereof;

- order the Commission to pay the costs of the proceedings at first instance and on appeal.

23 The Commission contends that the Court should:

- dismiss the appeals;

- order the appellants to pay the costs.

IV - The pleas in law for annulment of the contested judgment

24 LVM and DSM raise nine - essentially identical - pleas in law for annulment of the contested decision:

- infringement of the principle of res judicata;

- infringement of the principle non bis in idem;

- infringement of the principle that decisions must be adopted within a reasonable time;

- invalidity of the procedural measures preceding the PVC I decision;

- need for new administrative procedural measures following annulment of the PVC I decision;

- insufficient statement of reasons for the dismissal of the plea in law alleging infringement by the Commission of Article 190 of the EC Treaty (now Article 253 EC) with respect to its decision to adopt the PVC II decision following annulment of the PVC I decision;

- infringement of the privilege against self-incrimination;

- infringement of the rights of the defence as a result of insufficient access to the Commission's file;

- expiry of the limitation period applying to proceedings.

25 DSM also relies on two further pleas in law:

- failure to observe the principle of the inviolability of the home;

- infringement of professional secrecy and of the rights of the defence.

- failure to respond to its plea concerning a definitive transfer to the Community judicature of the power to impose penalties following the decision of the Commission;

- need for new administrative procedural measures following annulment of the PVC I decision;

- failure by the Court of First Instance to consider the economic context;

- expiry of the limitation period applying to proceedings;

- infringement of the right to a fair hearing, of Articles 48(2) and 64 of the Rules of Procedure of the Court of First Instance and of the principle of personal liability, resulting from the way in which the oral procedure was organised;

- infringement of the right to a fair hearing and of Article 48(2) of the Rules of Procedure of the Court of First Instance during the examination of the evidence;

- infringement of Articles 10(1) and 32(1) of the Rules of Procedure of the Court of First Instance;

- failure by the Commission to observe the scope of the obligation to state reasons for the method of calculating the fine;

- disproportionality and unfairness of the fine having regard to the gravity and duration of the infringement;

- infringement of the principle of equal treatment with respect to the amount of the fine;

- erroneous dismissal as inadmissible of its claims seeking payment of damages by the Commission.

27 Elf Atochem raises, in essence, four pleas in law for annulment:

- failure to respond to its plea alleging differences between the PVC I and PVC II decisions;

- invalidity of the procedural measures preceding the PVC I decision;

- need for new administrative procedural measures following annulment of the PVC I decision;

- infringement of the rights of the defence as a result of insufficient access to the Commission's file.

28 Degussa raises, in essence, six pleas in law for annulment:

- infringement of the principle that decisions must be adopted within a reasonable time;

- invalidity of the procedural measures preceding the PVC I decision;

- need for new administrative procedural measures following annulment of the PVC I decision;

- failure to respond to its complaint of a lack of intervention by the Hearing Officer prior to the adoption of the PVC II decision;

- infringement of the rights of the defence as a result of insufficient access to the Commission's file;

- failure by the Commission to take account of the scope of the obligation to state reasons for the method of calculating the fine.

29 Enichem raises 13 pleas in law for annulment:

- infringement of Article 44(1)(c) of the Rules of Procedure of the Court of First Instance;

- infringement of the principle of res judicata;

- invalidity of the procedural measures preceding the PVC I decision;

- need for new administrative procedural measures following annulment of the PVC I decision;

- erroneous reasons for the dismissal of the plea alleging infringement by the Commission of Article 190 of the EC Treaty with respect to its decision to adopt the PVC II decision following annulment of the PVC I decision;

- error in law by the Court of First Instance as regards the conclusions to be drawn from its finding of a lack of any correlation between two documents on which the Commission's allegation was based;

- attribution of collective responsibility;

- infringement of the rights of the defence as a result of insufficient access to the Commission's file;

- incorrect attribution of the infringement to the appellant as the holding company of a group and incorrect exclusion by the Court of First Instance of the relevance of the holding company's turnover to the calculation of the amount of the fine;

- infringement of Article 15(2) of Regulation No 17 resulting from an error on the part of the Court of First Instance as regards the correlation between the turnover in the business year preceding the PVC II decision and the amount of the fine;

- failure by the Commission to observe the scope of the obligation to state reasons for the method of calculating the fine;

- misinterpretation and misapplication of Community law and inadequate assessment of the evidence concerning the relationship between the fine imposed on the appellant and the appellant's market share;

- infringement of the principle of proportionality in fixing the amount of the fine.

30 Wacker-Chemie and Hoechst raise six pleas in law for annulment:

- infringement of Articles 10(1) and 32(1) of the Rules of Procedure of the Court of First Instance;

- incomplete examination of the facts;

- inconsistent and insufficient grounds for the contested judgment with respect to consideration of the documentary evidence;

- distortion of the evidence;

- need for new administrative procedural measures following annulment of the PVC I decision;

- infringement of Article 85(1) of the Treaty and Article 15(2) of Regulation No 17.

31 ICI raises, in essence, nine pleas in law for annulment:

- infringement of the principle of res judicata;

- infringement of the principle of non bis in idem;

- infringement of the principle that decisions must be adopted within a reasonable time;

- invalidity of the procedural measures preceding the PVC I decision;

- need for new administrative procedural measures following annulment of the PVC I decision and incompleteness of the file submitted for deliberation by the college of Commissioners at the time of adoption of the PVC II decision;

- erroneous reasoning for the rejection of the plea alleging infringement by the Commission of Article 190 of the Treaty with respect to its decision to adopt the PVC II decision following annulment of the PVC I decision;

- infringement of professional secrecy and of the rights of the defence;

- expiry of the limitation period applicable to proceedings;

- failure by the Court of First Instance to annul or reduce the fine as a result of the infringement of the principle that decisions must be adopted within a reasonable time.

V - The appeals

32 Having heard the parties and the Advocate General on the point, the Court considers that the present cases, on account of the connection between them, should be joined for the purposes of the final judgment in accordance with Article 43 of the Rules of Procedure of the Court of Justice.

A - Pleas in law concerning procedure and form

1. The plea raised by Montedison, Wacker-Chemie and Hoechst alleging infringement of Articles 10(1) and 32(1) of the Rules of Procedure of the Court of First Instance

33 Montedison, Wacker-Chemie and Hoechst observe that the Third Chamber (Extended Composition) of the Court of First Instance, which delivered the contested judgment, was composed of only three members although that Chamber included five members during the oral procedure.

34 They allege that the Court of First Instance thus deviated from the rules governing the normal composition of an extended chamber by misapplying Article 32(1) of its Rules of Procedure. The Court of First Instance considered as absent or prevented from attending within the meaning of that provision one of the members of that Chamber who had ceased to sit as a judge as a result of the expiry of his term of office on 17 September 1998 after the oral procedure. However, the case of the expiry of a judge's term of office is not covered by the provision applied. The contested judgment was therefore delivered by a chamber which was not properly constituted, in breach of Articles 10(1) and 32(1) of the Rules of Procedure of the Court of First Instance.

35 It should be observed that Article 10(1) of its Rules of Procedure requires the Court of First Instance to set up Chambers composed of three or five judges.

36 In accordance with Article 15 of the EC Statute of the Court of Justice, which also applies to the Court of First Instance pursuant to Article 44 of that Statute, decisions of the Court of First Instance are valid only when an uneven number of its members is sitting in the deliberations, and decisions of Chambers composed of three or five judges are valid only if they are taken by three judges.

37 Article 32(1) of the Rules of Procedure of the Court of First Instance provides that where, by reason of a judge being absent or prevented from attending, there is an even number of judges, the most junior judge is to abstain from taking part in the deliberations unless he is the Judge-Rapporteur, in which case the judge immediately senior to him is to abstain from taking part in the deliberations.

38 It thus makes clear how the rules laid down in Article 15 of the EC Statute of the Court of Justice are to be applied. For the purpose of the application of those rules, it is not the permanent or temporary nature of the inability to attend which is decisive. If a temporary absence or inability to attend justifies the change in the composition to allow an uneven number of members to sit, the same must apply, a fortiori, to the case of a permanent inability to attend as a result of, for example, the expiry of a member's term of office.

39 In the present case, the Third Chamber (Extended Composition) of the Court of First Instance could therefore reach a valid decision in a reduced composition of three members after the expiry, subsequent to the oral procedure, of the term of office of one of the five members of which it was initially composed.

2. The plea in law raised by LVM, DSM, Enichem and ICI alleging infringement of the principle of res judicata

41 Before the Court of First Instance, LVM, DSM, Enichem and ICI submitted that the Commission could not adopt the PVC II decision without disregarding the authority of res judicata attaching to the Court's judgment of 15 June 1994.

42 They allege that the Court of First Instance, in paragraph 77 et seq. of its judgment, failed to observe the principle of res judicata by dismissing the plea which they had raised on the basis thereof.

3. The plea raised by LVM, DSM and ICI alleging infringement of the principle of non bis in idem

56 According to LVM and DSM, the principle of non bis in idem applies in the case of annulment of a first decision where that annulment was ordered on the basis of a lack of evidence or of non-compliance with essential procedural requirements. The principle serves to protect the undertaking against action being taken or penalties being imposed twice, irrespective of the reason for the failure of the first measures taken against it. That interpretation is borne out by Article 4(1) of Protocol No 7 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR'), signed in Rome on 4 November 1950, which has in the meantime entered into force and according to which [n]o one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State'. In the Court's judgment of 15 June 1994, the appellants were acquitted' within the meaning of that provision.

58 ICI further submits that Article 4 of Protocol No 7 to the ECHR applies in the case of a final conviction, that is to say, where no further ordinary remedies are available or where the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them. That was the position in the present case since no further remedies were available to the appellant following delivery of the Court's judgment of 15 June 1994.

64 LVM and DSM further submit that, with respect to the finding, in the context of the examination of the plea alleging infringement of the principle of non bis in idem, that the PVC I decision was to be deemed never to have existed as a result of its annulment, the Court of First Instance's reasoning was inconsistent with that set out in paragraph 1100 of the contested judgment in relation to the plea alleging expiry of the limitation period.

65 That submission is unfounded. The question of law dealt with by the Court of First Instance in paragraph 1100 of the contested judgment concerned the conditions governing suspension of the limitation period provided for in Article 3 of Council Regulation (EEC) No 2988/74 of 26 November 1974 concerning limitation periods in proceedings and the enforcement of sanctions under the rules of the European Economic Community relating to transport and competition (OJ 1974 L 319, p. 1), which states that [t]he limitation period in proceedings shall be suspended for as long as the decision of the Commission is the subject of proceedings pending before the Court of Justice of the European Communities'.

66 In paragraph 1098 of the contested judgment, the Court of First Instance stated that the specific purpose of Article 3 is to enable the limitation period to be suspended where the Commission is prevented from acting for an objective reason not attributable to it and connected precisely with the fact that an action is pending.

67 By adding, in paragraph 1100 of the contested judgment, that [i]t is the very fact that an action is pending before the Court of First Instance or the Court of Justice which justifies the suspension, and not the conclusions reached by those courts in their judgment', it merely established that the scheme for suspension of the limitation period provided for in Regulation No 2988/74 is independent of the effect of an order annulling the decision. Moreover, in the same paragraph, it found essentially that, in fact, that suspension mechanism makes sense only in the case of actual annulment of a Commission decision, that is to say, where that decision is then deemed never to have existed.

68 It was not therefore inconsistent that, in relation to two different questions, the Court of First Instance, on the one hand, took account of the effect of the judgment annulling the PVC I decision as regards the principle of non bis in idem and, on the other hand, took into consideration the very fact that proceedings were pending before the Community judicature, independently of the content of the judgment ordering annulment and its effect on the PVC I decision, in relation to the scheme for suspension of the limitation period.

69 It follows that this plea in law must be rejected.

4. The plea raised by LVM, DSM, Elf Atochem, Degussa, Enichem and ICI alleging invalidity of the procedural measures taken prior to adoption of the PVC I decision

70 Before the Court of First Instance, LVM, DSM, Elf Atochem, Degussa, Enichem and ICI submitted that the annulment of the PVC I decision had affected all of the measures preparatory to that decision. Those measures could not therefore constitute valid measures preparatory to the PVC II decision.

71 They complain that, in paragraphs 183 to 193 of the contested judgment, the Court of First Instance rejected their plea to that effect by holding that the measures preparatory to the PVC I decision were not affected by the annulment of that decision.

76 It follows that this plea must be rejected.

5. The pleas raised by all the appellants alleging the need for new administrative procedural measures following the annulment of the PVC I decision and by ICI alleging the incompleteness of the file submitted for deliberation by the college of Commissioners at the time of adoption of the PVC II decision

77 Before the Court of First Instance, the appellants argued, in essence, that, even if the defect established by the Court's judgment of 15 June 1994 had occurred at the final stage of the adoption of the PVC I decision, the Commission could have remedied the defect only if it had complied with certain procedural guarantees before adopting the PVC II decision, since the latter was a new decision. Thus, they submitted before the Court of First Instance that the administrative procedure should either have been resumed in its entirety from the stage of notification of the statement of objections or that it should have included a fresh hearing of the undertakings concerned, a fresh consultation of the Advisory Committee and a fresh intervention by the Hearing Officer. It also submits that, accordingly, the file submitted for deliberation by the college of Commissioners did not contain documents which, had they been included, would have allowed the adoption of a decision in full knowledge of the questions of law and fact which would then have been raised.

78 In their appeals, the appellants complain that the Court of First Instance did not accept their pleas on those various points, which it is necessary to consider in turn.

(a) The absence of a fresh statement of objections

79 Montedison submits that, in accordance with Regulation No 17 and Regulation No 99/63, the Commission should have opened a fresh administrative procedure commencing with a fresh statement of objections before adopting the PVC II decision, since that was a new decision even though its content was identical to that of the PVC I decision.

82 Accordingly, the complaint submitted by Montedison cannot be accepted.

(b) The absence of a fresh hearing of the undertakings concerned

83 Each of the appellants submits that the annulment of the PVC I decision meant that a fresh hearing of the undertakings pursuant to Article 19(1) of Regulation No 17 was necessary for the adoption of the PVC II decision. LVM and DSM argue that that requirement arises from the fundamental principle of observance of the rights of the defence, the scope of which cannot be defined or limited by provisions of secondary law on account of the primacy of the fundamental principles of Community law.

84 The appellants also complain of the Court of First Instance's finding, in paragraphs 251 and 252 of the contested judgment, that a new hearing was not required in the absence of new objections.

87 It was therefore entitled to conclude, in paragraph 249 of the contested judgment, that observance of the rights of the defence requires that each undertaking or association of undertakings concerned be given the opportunity to be heard as to the objections raised against each of them which the Commission proposes to deal with in the final decision finding infringement of the competition rules. In so doing, it did not lay down any limitation by the provisions of Regulation No 17 and Regulation No 99/63 of the fundamental principle of observance of the rights of the defence but in fact stated its content in relation to competition law.

88 Having gone on to declare that the PVC II decision did not contain any new objection as compared with the text of the PVC I decision, the Court of First Instance did not err in law in ruling, in paragraph 252 of the contested judgment, that no new hearing was required prior to adoption of the PVC II decision.

89 Three series of arguments have been put forward to no avail in opposition to that ruling.

90 First, LVM, DSM, Elf Atochem, Degussa, Enichem and ICI maintain that a new hearing would have enabled them to submit appropriate observations as to the consequences of the annulment of the PVC I decision. Thus, they could have commented on the need for, and the expediency of, the adoption of the PVC II decision, on issues such as the passage of time, the principles of res judicata and non bis in idem, developments in the case-law subsequent to the adoption of the PVC I decision and the access to the file which re-opening of the proceedings necessarily entails, on the obligation to have the Hearing Officer consider certain matters, on the obligation to consult the Advisory Committee, on the implications of Article 20 of Regulation No 17 and on the development of the PVC market since 1988.

92 Developments in the case-law or in the economic context cannot in themselves render new hearings necessary, any more than if they occur in the course of administrative proceedings prior to a final decision.

93 By the same token, the questions of law which may arise in the context of the application of Article 176 of the Treaty, such as those relating to the passage of time, the possibility of resuming proceedings, the access to the file required on resumption of the proceedings, the intervention of the Hearing Officer and the Advisory Committee and the possible implications of Article 20 of Regulation No 17, do not render a new hearing necessary since they do not alter the substance of the objections, being at most amenable to subsequent judicial review.

94 Second, LVM and DSM dispute the finding by the Court of First Instance that the PVC II decision contains no new objection as compared with the PVC I decision. In that regard, they allege that important amendments' were made in the PVC II decision as compared with the PVC I decision, namely a new operative part, amendments to the statement of reasons as regards the facts and law and a new chapter concerning prescription. More generally, LVM and DSM consider that the relevant legal test is not whether it is possible to qualify new facts and circumstances as objections' but only whether there are new facts and circumstances in respect of which the undertakings have not yet submitted observations. In this case, the new facts include the issues referred to in paragraph 90 of this judgment, in respect of which the appellants wished to submit observations, and the amendments to the PVC II decision.

95 Elf Atochem asserts that the Commission was required to hold new hearings by virtue of the sole fact that, according to the appellant, the PVC II decision contains new facts' as compared with the PVC I decision. First, the PVC II decision excludes Norsk Hydro and Solvay, which are no longer the subject of the proceedings. Second, those two companies nevertheless continue to be referred to with respect to the collective conduct alleged against the undertakings to which the PVC II decision is addressed, so that the two successive decisions of the Commission concern alleged agreements or concerted practices in respect of which the participants proceeded against in 1994 are different from those proceeded against in 1998. Third, the PVC II decision contains arguments relating to limitation, which are intended to justify the right to adopt a new decision. According to Elf Atochem, it is in any event of little relevance whether the new decision contains new objections. A new hearing is always required. The Commission cannot simply repeat the objections contained in a previous annulled decision. Every decision adopted by the Commission must contain its own set of objections.

96 In that regard, it should be observed that, contrary to what LVM and DSM claim, the differences between the operative parts of the PVC I and the PVC II decisions and the arguments relating to limitation do not constitute a new objection upheld by the Commission in the PVC II decision. The appellants do not state which of the alleged amendments of fact and law indicate, in their view, that new objections were taken into account; nor do they show how those amendments actually relate to such objections.

97 Moreover, contrary to the claims made both by LVM and DSM and by Elf Atochem, the mere existence of differences between the two successive decisions

of the Commission did not in itself render new hearings necessary, since those differences did not involve the consideration of new objections.

98 Where, following the annulment of a decision in a competition matter, the Commission chooses to rectify the illegality or illegalities found and to adopt a new identical decision which is not vitiated by those illegalities, that decision relates to the same objections as those in respect of which the undertakings have already submitted observations. Elf Atochem cannot therefore validly maintain that the PVC I and the PVC II decisions each refer to separate sets of complaints.

99 It must additionally be stated that the differences between the PVC I and PVC II decisions with respect to Norsk Hydro and Solvay are merely the result of the scheme of legal remedies available against a decision adopted in a competition matter with respect to several enterprises.

101 In this case, Solvay did not bring an action against the PVC I decision and the action brought against that decision by Norsk Hydro was declared inadmissible by the order in Norsk Hydro, cited above.

102 Therefore, since the PVC I decision had become final in relation to those two undertakings, they could no longer be addressees of the PVC II decision. Nevertheless, to the extent that they were involved in the objections raised with respect to all the undertakings initially implicated, their respective roles could be taken into account by the Commission in the PVC II decision in so far as they related to the objections raised against the addressees of that decision for the purposes of establishing the infringements found to have been committed by those addressees, each within the limits of its own liability. The PVC I and PVC II decisions do not therefore relate to agreements or concerted practices in respect of which the participants proceeded against in 1994 are different from those proceeded against in 1988. They concern the same agreements or concerted practices in respect of the same undertakings which, solely by virtue of the application of procedural rules, were penalised by two successive decisions.

104 Finally, Wacker-Chemie and Hoechst complain that the Court of First Instance did not accept the need for new hearings in the absence of new objections even though the PVC II decision extended the duration of the infringement found to have been committed, was unfounded as regards the order to terminate the infringement made in Article 2 of the decision and did not determine the amount of the fine in accordance with Article 15(2) of Regulation No 17.

105 Solely as a result of the date of adoption of the PVC II decision, the duration of the infringement found to have been committed was extended by five and a half years as compared with the infringement established as at the date of adoption of the PVC I decision.

106 However, Articles 1 and 3 of the PVC II decision, like Articles 1 and 3 of the PVC I decision respectively, stated that the appellants had participated in the infringement found to have been committed and imposed fines on those undertakings. As regards, in particular, Wacker-Chemie and Hoechst, point 54 of the account of the facts contained in each of the PVC I and PVC II decisions states that the amount of the fines was assessed on the basis that their participation in the cartel continued until at least May 1984'. Consequently, the adoption of the PVC II decision on 27 July 1994 did not have the effect of prolonging the infringement penalised as compared with the PVC I decision, since the duration of the infringement actually taken into account was the same.

107 Wacker-Chemie and Hoechst submit that the order to terminate the infringement presupposes the existence of proof that the infringement was continuing at the time of adoption of the PVC II decision and that, in the absence of such proof, the legal basis of that order had been eliminated as a result of the passage of time. They further assert that they had definitively terminated their activity on the PVC market before the adoption of the PVC II decision, and could not therefore be required to terminate any infringement.

109 Finally, with respect to the determination of the amount of the fine, Wacker-Chemie and Hoechst submit that a fine imposed some considerable time after the alleged offences need not lead to the same result as a penalty imposed immediately after the infringement and that the Commission should have determined the turnover for the last business year prior to the PVC II decision in accordance with Article 15(2) of Regulation No 17, which provides that the maximum fine which can be imposed is 10% of the turnover realised in the preceding business year.

110 In that connection, it must be pointed out that the obligation to take into account the turnover for the preceding business year arises at the stage of the final decision of the Commission for the purposes of determining the maximum amount of the fine. The need to ascertain that turnover therefore arises after the hearing of the undertakings, which is designed to enable them to submit their observations on the objections raised against them. Furthermore, it arises only if, at the end of the hearing, the Commission considers that the infringement has been established. Accordingly, the appellants' argument is irrelevant for the purposes of establishing, in the present case, the existence of an obligation to hold a new hearing.

111 It follows that the objection concerning the absence of a new hearing of the undertakings concerned must be rejected.

(c) The objection that the Advisory Committee was not re-consulted

112 All of the appellants submit that the annulment of the PVC I decision necessitated a fresh consultation of the Advisory Committee, pursuant to Article 10(3) of Regulation No 17, for the purposes of adopting the PVC II decision.

113 They complain that the Court of First Instance, in paragraphs 256 and 257 of the contested judgment, held that a fresh consultation of the Advisory Committee would only have been required if a new hearing had itself been necessary.

114 In that connection, it should be observed that Article 1 of Regulation No 99/63 states that:

Before consulting the Advisory Committee on Restrictive Practices and Dominant Positions, the Commission shall hold a hearing pursuant to Article 19(1) of Regulation No 17'.

115 In paragraph 256 of the contested judgment, the Court of First Instance rightly observed that, pursuant to that provision, the hearing of the undertakings concerned and the consultation of the Advisory Committee are necessary in the same situations (Joined Cases 46/87 and 227/88 Hoechst v Commission [1989] ECR 2859, paragraph 54).

116 It has already been established in this case that the annulment of the PVC I decision did not affect the validity of the administrative procedural measures preceding the adoption of that decision and that new hearings were not required.

119 It follows that the complaint concerning the absence of any fresh consultation of the Advisory Committee must be rejected.

(d) The absence of any fresh intervention by the Hearing Officer

120 Degussa, Enichem and ICI claim that the Commission should also have involved the Hearing Officer, whose new role had in the interim been defined by the Commission's decision of 24 November 1990 on the hearings in proceedings relating to Articles 85 and 86 of the EEC Treaty and Articles 65 and 66 of the ECSC Treaty (XXth Report on Competition Policy, p. 350, hereinafter the decision of 24 November 1990').

121 They object to the finding by the Court of First Instance, in paragraph 253 of the contested judgment, that, since the Commission was not required to hold a new hearing of the undertakings concerned, it could not be in breach of its decision of 24 November 1990, which was not applicable ratione temporis to the oral stage of the administrative procedure which preceded adoption of the PVC II decision.

122 In that connection, it should be pointed out that the Commission created the office of hearing officer with effect from 1 September 1982 in accordance with the Notice on procedures for applying the competition rules of the EEC and the ECSC Treaties (Articles 85 and 86 (EEC) and 65 and 66 (ECSC))' published in the Official Journal of the European Communities of 25 September 1982 (OJ 1982 C 251, p. 2).

123 In the notice cited above, it defined the office as follows:

The Hearing Officer shall ensure that the hearing is properly conducted and thus contribute to the objectivity of the hearing itself and of any decision taken subsequently. He shall seek to ensure in particular that in the preparation of draft Commission decisions in competition cases due account is taken of all the relevant facts, whether favourable or unfavourable to the parties concerned.

In performing his duties he shall see to it that the rights of the defence are respected, while taking account of the need for effective application of the competition rules in accordance with the regulations in force and the principles laid down by the Court of Justice.'

124 The functions of the hearing officer were set out in a text published as an annex to the XIIIth Report on Competition Policy, relating to 1983. The wording of Article 2 of that report was identical to that of the initial definition. The text was itself replaced by the decision of 24 November 1990 and the terms of Article 2 of that decision were likewise identical to those of the initial definition.

125 It follows from what was actually involved in the task entrusted to the Hearing Officer who intervened in the procedure prior to adoption of the PVC I decision that the intervention in question was necessarily linked to the hearing of the undertakings with a view to the possible adoption of a decision.

126 Accordingly, having correctly held that a new hearing was not necessary following the annulment of the PVC I decision, the Court of First Instance was right to conclude, in paragraph 253 of the contested judgment, that a fresh intervention by the Hearing Officer in the circumstances provided for in the decision of 24 November 1990, which had meanwhile become applicable, was no longer required.

127 It follows that the complaint concerning the absence of any fresh intervention by the Hearing Officer must be rejected.

(e) The composition of the file submitted to the college of Commissioners for deliberation

128 ICI considers that, as a result of defects in the administrative procedure prior to adoption of the PVC I decision, the college of Commissioners was unable to consider all the relevant documents, particularly a fresh report by the Hearing Officer and a fresh report on the outcome of consultation of the Advisory Committee. The college of Commissioners, the composition of which was different from that of the college which adopted the PVC I decision, thus had at its disposal only the submissions of the parties lodged six years earlier, the report of the Hearing Officer drawn up around that time and the opinion of the Advisory Committee, also dating from 1988.

129 It complains that the Court of First Instance dismissed this plea in paragraph 316 of the contested judgment.

130 It should be noted in that regard that, in paragraph 315 of the contested judgment, the Court of First Instance correctly pointed out that, after the annulment of the PVC I decision, the Commission did not commit any error in law by not carrying out a fresh hearing of the undertakings concerned before adopting the PVC II decision.

131 Furthermore, it follows from paragraphs 122 to 127 and 114 to 119 of this judgment that neither a fresh intervention by the Hearing Officer nor a fresh consultation of the Advisory Committee was required.

132 Accordingly, contrary to what ICI maintains, the file submitted to the college of Commissioners did not have to contain, inter alia, a new report by the Hearing Officer or a fresh report on the consultation of the Advisory Committee.

133 The Court of First Instance was therefore right to rule, in paragraph 316 of the contested judgment, that ICI's argument concerning the composition of the file was based on a false premiss and that its plea was accordingly without legal foundation.

134 It therefore follows from all the above considerations that these pleas must be rejected.

6. The plea raised by LVM, DSM, Montedison and ICI alleging expiry of the limitation period for penalising infringements

135 LVM, DSM, Montedison and ICI complain that, in paragraph 1089 et seq. of the contested judgment, the Court of First Instance misapplied Regulation No 2988/74. It wrongly ruled that the five-year limitation period applying to the right to penalise infringements had been suspended for the duration of the judicial proceedings against the PVC I decision pursuant to Article 3 of Regulation No 2988/74, which provides that the limitation period in proceedings is to be suspended for as long as the decision of the Commission' is the subject of proceedings pending before the Community judicature.

136 According to the appellants, that provision is not applicable to the Commission's final decision on an infringement and the imposition of a fine. From its adoption, such a decision is covered by the rules on the limitation period for the enforcement of sanctions laid down in Articles 5 and 6 of Regulation No 2988/74. Therefore, an action brought against such a decision does not suspend the limitation period for penalising infringements. Article 3 of Regulation No 2988/74 applies only to actions brought against the measures interrupting the limitation period which are listed in Article 2 of the Regulation. More precisely, according to LVM and DSM, it applies only to actions against measures of the Commission which, taking the form of a decision, are open to challenge. LVM and DSM claim that the final decision does not interrupt the limitation period, since it does not appear in the exhaustive list contained in Article 2 of Regulation 2988/74. They conclude that an action brought against that decision cannot suspend the limitation period. ICI submits that no act subsequent to notification of the statement of objections, which is the last of the interruptive acts listed in Article 2 of Regulation No 2988/74, can have the effect of suspending the limitation period.

137 It should be observed that, according to Article 4(2) of Regulation No 2988/74, the limitation period for the enforcement of sanctions begins to run only on the day on which the decision becomes final', that is to say, either from expiry of the period for bringing an action against the decision on the infringement and the fine, where no action has been brought, or from the decision of the Community judicature giving a final ruling on an action which has been brought, where that action is dismissed, since it is clear that the question of the limitation period for enforcement is devoid of purpose where the decision is annulled.

138 Consequently, the rules relating to the interruption and suspension of the limitation period for the enforcement of sanctions, as laid down in Articles 5 and 6 of Regulation No 2988/74, no longer apply once the Commission has adopted the final decision.

139 For as long as that decision is not final, the limitation period in proceedings is governed by the rules on proceedings laid down in Articles 1 to 3 of that regulation.

140 In accordance with Articles 1(1)(b) and (2) and 2(3) of Regulation No 2988/74, the limitation period in proceedings expires if the Commission has not imposed a fine or a penalty within five years from the date on which it began to run where, during that time, no interruptive action is taken or, at the latest, within ten years from the date on which it began to run where interruptive action has been taken. Nevertheless, pursuant to Article 2(3), the limitation period thus defined is extended by the time for which limitation is suspended pursuant to Article 3.

141 Contrary to the appellants' assertion, it cannot in any way be inferred from the wording of Articles 2 and 3 of Regulation No 2988/74 that the decision of the Commission' referred to in Article 3 which is the subject of judicial proceedings before the Community judicature suspending the limitation period can only be one of the acts referred to in Article 2 as interrupting that limitation period or that the list of those acts is exhaustive. In that regard, the Court of First Instance rightly pointed out, in paragraph 1097 of the contested judgment, that some of the measures listed in Article 2(1), in particular written requests for information, inspection authorisations and statements of objections, are preparatory measures and not decisions. Furthermore, the list contained in that article is prefaced by the adverb in particular' and is in no way exhaustive.

158 Montedison further contests the finding by the Court of First Instance, in paragraph 1092 of the contested judgment, that the investigations carried out by the Commission at the premises of ICI, Shell and DSM on 21, 22 and 23 November and 6 December 1983 interrupted the limitation period in the proceedings brought against it. It submits that those investigations could not have had that effect in relation to it, inasmuch as it had terminated its activities on the PVC market 10 months beforehand.

159 However, it should be noted that, under Article 2(2) of Regulation No 2988/74, the interruption of the limitation period applies in relation to all of the undertakings which participated in the infringement.

160 Moreover, the sole fact that an undertaking has terminated a particular economic activity cannot release it from the liability which it may incur as a result of an infringement committed in connection with that activity before its termination.

161 Montedison further asserts that the interruption of the limitation period presupposed the existence of some notification measure or written authorisation to carry out investigations. It claims that the existence of such measures prior to notification of the statement of objections was not established.

162 In that respect, it is sufficient to observe that Article 2(1) of Regulation No 2988/74 provides that the limitation period in proceedings is interrupted by any action taken by the Commission ... for the purpose of the preliminary investigation or proceedings in respect of an infringement'. That provision does not therefore make the interruption of the limitation period dependent on a notified measure or a written authorisation to carry out investigations.

163 It therefore follows from all of the above considerations that this plea must be rejected.

7. The plea raised by LVM, DSM, Degussa and ICI alleging infringement of the principle that decisions are to be adopted within a reasonable time

164 In paragraphs 120 to 136 of the contested judgment, the Court of First Instance rejected the plea alleging infringement of the principle that decisions are to be adopted within a reasonable time, which had been raised independently of the plea alleging expiry of the limitation period. It had been submitted before it that there had been a failure to act within a reasonable time with respect to the adoption of the PVC I decision and, a fortiori, with respect to that of the PVC II decision.

165 LVM, DSM, Degussa and ICI allege various errors of law committed by the Court of First Instance in its consideration of that plea. In short, they consider that the period to be taken into consideration under the principle of reasonable time covers, in addition to the administrative procedure, all judicial proceedings brought in the present case.

(a) The complaints based on Article 6 of the ECHR

166 LVM and DSM complain that the Court of First Instance failed to respond in a reasoned manner to their argument that Article 6 of the ECHR is as such applicable to proceedings in competition matters, and that it restricted itself to referring to paragraph 56 of its judgment in Joined Cases T-213/95 and T-18/96 SCK and FNK v Commission [1997] ECR II-1739. Thus, they also complain that, in paragraph 121 of the contested judgment, the Court of First Instance reclassified as a general principle of Community law the fundamental principle that decisions are to be adopted within a reasonable time but then failed to apply Article 6 of the ECHR. In its judgment in Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraphs 26 to 44, the Court of Justice, without stating the nature of the principle in detail, ruled that Article 6 of the ECHR is directly applicable and that, in that case, the length of the proceedings before the Court of First Instance was not justified.

- in accordance with settled case-law, fundamental rights form an integral part of the general principles of Community law whose observance is ensured by the Community judicature (see, in particular, Opinion 2/94 of the Court of Justice [1996] ECR I-1759, paragraph 33, and Case C-299/95 Kremzow [1997] ECR I-2629, paragraph 14);

- for that purpose, the Court of Justice and the Court of First Instance draw inspiration from the constitutional traditions common to the Member States and the guidelines supplied by international treaties and conventions on the protection of human rights on which the Member States have collaborated or to which they are signatories;

- the ECHR has special significance in that respect (Case 222/84 Johnston [1986] ECR 1651, paragraph 18, and Kremzow, cited above, paragraph 14);

- furthermore, Article F.2 of the Treaty on European Union (now, after amendment, Article 6(2) EU) provides that [t]he Union shall respect fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, as general principles of Community law'.

- it is a general principle of Community law that the Commission must act within a reasonable time in adopting decisions following administrative proceedings relating to competition policy;

- it is therefore unnecessary to rule on the question whether Article 6(1) of the ECHR is, as such, applicable to administrative proceedings before the Commission relating to competition policy,

the Court of First Instance responded implicitly but necessarily to the plea based on the direct applicability of Article 6 of the ECHR.

172 It follows that the complaints based on Article 6 of the ECHR must be rejected.

(b) The complaints relating to the penalty for infringement of the principle that decisions are to be adopted within a reasonable time

- infringement of the principle that the Commission must act within a reasonable time, if established, would justify annulment of the PVC II decision only in so far as it also constituted an infringement of the rights of defence of the undertakings concerned;

- where it has not been established that the undue delay has adversely affected the ability of the undertakings concerned to defend themselves effectively, failure to comply with the principle that the Commission must act within a reasonable time cannot affect the validity of the administrative procedure and can therefore be regarded only as a cause of damage capable of being relied on before the Community judicature in the context of an action based on Article 178 and the second paragraph of Article 215 of the EC Treaty (now Article 235 EC and the second paragraph of Article 288 EC).

(c) The complaints relating to observance of the principle that action must be taken within a reasonable period

(i) Complaints regarding the administrative procedure conducted by the Commission

- Division of the administrative procedure into two stages

- Failure to consider the duration of the administrative procedure in the light of all the criteria for assessing what constitutes a reasonable period

- Infringement of the principle that decisions are to be adopted within a reasonable time on account of the duration of the administrative procedure

128 The facts which had to be elucidated by the Commission were highly complex owing to the type of conduct in question and its range across the geographical market concerned, covering the whole area of activity in the common market of the principal PVC producers.

129 Another factor contributing to the difficulty in establishing the facts was the confused mass of documents collected by the Commission. The documents obtained from its investigations at the premises of various petrochemical product manufacturers during the period concerned and the replies of the latter to the questions put by the Commission under Article 11 of Regulation No 17 constituted a particularly bulky file. Moreover, amongst the myriad documents obtained during the administrative procedure, the Commission had to distinguish between those belonging to the PVC file and those belonging to the file investigated in parallel in the neighbouring PEBD [low density polyethylene] sector, itself the subject, like other thermoplastic products at the same period, of an investigation and a procedure for determining infringements imputed to undertakings amongst which many are also parties to this case. It should also be noted that the file of the case which led to the [PVC II] Decision contained, on a first administrative numbering, a series of documents comprising 1072 pages, and, on another numbering, more than 5000 pages, excluding internal Commission documents.

130 Finally, the complexity of the facts to be elucidated arose from the difficulty of establishing proof of the participation of undertakings in the alleged concerted practice and from the number of undertakings involved. On that point, the [PVC II] Decision states that "17 undertakings took part in the infringement during the period covered ..." (point 2, second subparagraph, of the Decision) and that 14 undertakings had been addressees of the original decision.'

133 ... That is not sufficient to justify a complaint of undue delay. The objections were notified to the undertakings concerned at the beginning of April 1988. The undertakings replied to the statement of objections in June 1988. Apart from Shell, which did not so request, the undertakings to which the statement of objections was addressed were heard between 5 and 8 September 1988 and on 19 September 1988. The Advisory Committee on Restrictive Practices and Dominant Positions delivered its opinion on the preliminary draft Commission decision on 1 December 1988, and the Commission adopted its original decision 20 days later. The [PVC II] Decision itself was adopted 42 days after delivery of the judgment of 15 June 1994.'

(ii) The complaint that the Court of First Instance failed to consider the judicial proceedings prior to adoption of the PVC II decision from the standpoint of the principle that action must be taken within a reasonable time

123 In this case, the administrative procedure before the Commission lasted for a total of some 62 months. The period during which the Community judicature examined the legality of the [PVC I] decision and the validity of the judgment of the Court of First Instance [of 27 February 1992] cannot be taken into account in determining the duration of the procedure before the Commission.'

- did not allege that the duration of the judicial proceedings leading to the annulment of the PVC I decision had been excessive;

- neither attempted to show nor even pleaded any specific delay in those proceedings which was attributable either to the Community judicature or to the Commission itself on account of its conduct during those proceedings.

(iii) The complaint of infringement by the Court of Justice of the principle that action is to be taken within a reasonable time on account of the length of the judicial proceedings culminating in the contested judgment

206 Degussa maintains that the length of the judicial proceedings leading to the contested judgment is, in itself, contrary to the general principle that action must be taken within a reasonable time. It complains that the Court of First Instance divided the proceedings before it into two distinct stages, each comprising separate written and oral procedures. That division by the Court of First Instance, which was in no way justified, caused the proceedings to last four and a half years. Thus, the Court of First Instance itself infringed the principle that action is to be taken within a reasonable time.

208 The Court of Justice must therefore examine, at the appeal stage, Degussa's complaint directed specifically against the duration of the proceedings before the Court of First Instance which culminated in the contested judgment.

209 Those proceedings began with the lodging between 5 and 14 October 1994 of the applications for annulment of the PVC II decision and ended on 20 April 1999, the date on which the contested judgment was delivered. Thus, they lasted approximately four and half years.

211 In the present case, it should be borne in mind that the actions before the Court of First Instance were brought by 13 undertakings in five different languages.

212 On 6 April 1995 the Court of First Instance held a meeting with the parties pursuant to Article 64 of its Rules of Procedure. In view of the complexity of the procedural situation, linked, in particular, to the prior stages already completed and to the number and the importance of the pleas raised, it was decided, with the parties' agreement, that the written procedure should be suspended and that the oral procedure should be limited to examination of procedural submissions.

213 By order of 25 April 1995, the cases were joined for the purposes of that oral procedure.

214 The oral procedure took place on 13 and 14 June 1995, but did not ultimately enable the hoped-for procedural solution to be implemented.

215 By order of 14 July 1995, it was therefore ordered that the written procedure should be resumed and that the cases be disjoined.

216 The written procedure followed the normal course, ending on 20 February 1996. It was then made subject to the rules governing languages provided for in Article 35 of the Rules of Procedure of the Court of First Instance.

217 On 7 May 1997, in view of the pleas for annulment based on the undertakings' having been given insufficient access to the Commission's file on which the PVC II decision was founded, the Court of First Instance granted the appellants, in the context of measures of organisation of procedure, access to that file, save for internal Commission documents and documents containing business secrets or other confidential information.

218 Having consulted the file in June and July 1997, all the appellants except for Wacker-Chemie and Hoechst lodged observations at the Registry of the Court of First Instance in July and September 1997. The Commission lodged its observations in reply in December 1997.

219 By order of 22 January 1998, after the parties had been heard, the cases were rejoined for the purposes of the oral procedure, which took place between 9 and 12 February 1998.

220 The contested judgment was delivered on 20 April 1999, ruling on all of the numerous procedural and substantive pleas after a statement of grounds comprising 1269 paragraphs.

221 It follows from the findings set out above that the duration of the judicial proceedings leading to the contested judgment was justified in the light of the particular complexity of the case.

222 Consequently, this complaint must be rejected.

(iv) The complaint of infringement of the principle that decisions are to be adopted within a reasonable time on account of the total duration of the administrative and judicial proceedings in the present case

Arguments of the parties

224 Degussa maintains that, in view of the probable duration of the present appeal proceedings, the procedure is unlikely to be finally closed until after approximately 20 years. The absolute limit of what still constitutes an acceptable length of procedure will thus be exceeded.

225 The Commission considers that the idea of a uniform procedure for all cases is incompatible with the guarantee of judicial independence as it emanates, according to the Court's case-law, from the general principle of Community law, inspired by Article 6 of the ECHR, under which every person has the right to a fair trial. That right also comprises the right to a tribunal that is independent of the executive power in particular (Joined Cases C-174/98 P et C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1, paragraph 17).

226 It would run counter to the principle of the procedural independence of the courts if the duration of the administrative procedure were to determine that of the judicial proceedings, which would be the case if the permissible duration of the judicial proceedings were to depend on the time already taken by the administrative authorities.

227 The necessary distinction between administrative and judicial proceedings in accordance with the separation of powers also stems from Article 2(3) of Regulation No 2988/74, which does not include the duration of any judicial proceedings in the limitation period.

228 The Commission submits that Regulation 2988/74, adopted to give effect to a principle laid down by the Court in Case 45/69 Boehringer Mannheim v Commission [1970] ECR 769, paragraph 6, introduced an exhaustive set of rules governing the passage of time in the competition cases with which it deals and complying with the principles of legal certainty and the right to a fair hearing. It is therefore unnecessary to introduce a new set of rules based on undue delay'.

Findings of the Court

8. The plea raised by DSM alleging a failure to observe the principle of the inviolability of the home

236 Before the Court of First Instance, DSM pleaded the illegality of all the investigations carried out in this case on the basis of written authorisations under Article 14(2) of Regulation No 17 or decisions under Article 14(3).

237 It alleged, in that respect, that there had been a failure to observe the principle of the inviolability of the home within the meaning of Article 8 of the ECHR concerning the right to respect for private and family life, home and correspondence, as interpreted by the European Court of Human Rights (judgment of 16 December 1992 in Niemietz, Series A No 251-B, paragraph 31).

238 It also disputed the validity of the way in which all of the investigations had been conducted, submitting that they infringed professional secrecy in view of the nature and volume of the documents actually examined for that purpose.

240 As regards the substance, the Court of First Instance considered, in paragraph 417 of the contested judgment, that the plea must be understood as alleging infringement of the general principle of Community law ensuring protection against intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, which are disproportionate or arbitrary (Hoechst, cited above, paragraph 19; Case 85/87 Dow Benelux v Commission [1989] ECR 3137, paragraph 30; Joined Cases 97/87, 98/87 and 99/87 Dow Chemical Ibérica and Others v Commission [1989] ECR 3165, paragraph 16).

241 In paragraph 419 of the contested judgment, it observed that the decisions to investigate sent by the Commission to certain undertakings in 1987 were identical or similar to that which it sent to Hoechst in the same year in the case leading to the judgment in Hoechst, in which the application for annulment was dismissed. The Court of First Instance concluded therefrom that, in so far as the pleas and arguments put forward by LVM and DSM were identical or similar to those put forward at that time by Hoechst, there was no reason to depart from the case-law of the Court of Justice. It therefore rejected the complaint against the decisions at issue in this case.

242 In paragraphs 421 and 422 of the contested judgment, it also rejected the complaint made against the investigations carried out pursuant to simple authorisations and, in paragraphs 424 to 426 of that judgment, the complaint raised against the manner in which those investigations were carried out.

243 Accordingly, in paragraph 427 of the contested judgment, the Court of First Instance rejected the plea in its entirety.

244 DSM objects to the finding of the Court of First Instance in paragraph 420 of the contested judgment that the development of the case-law of the European Court of Human Rights concerning Article 8 of the ECHR had no direct impact on the merits of the solutions adopted in Hoechst, Dow Benelux and Dow Chemical Ibérica, cited above.

245 On the contrary, according to DSM, the result of the judgment in Niemietz, cited above, was that, in the context of investigations under Article 14 of Regulation No 17, the Commission must exercise its powers in compliance with the guarantees provided for by Article 8 of the ECHR and with the interpretation given thereto by the European Court of Human Rights.

246 DSM states that its complaint in that respect was based on a twofold infringement of Article 8 of the ECHR, as interpreted in the Niemietz judgment. First, the authorisation pursuant to which an investigation of its premises was carried out on 6 December 1983 was drafted in general terms. Second, that investigation infringed professional secrecy to a disproportionate degree.

247 The application of the criteria of Article 8 of the ECHR for the purposes of assessing the necessity and the proportionality of the authorisation of the investigation and the manner in which it was conducted was therefore at issue before the Court of First Instance.

248 DSM maintains that, had the Court of First Instance applied Article 8 of the ECHR, it would have concluded that the Commission could not use as evidence the documents found on the appellant's premises, in particular annexes P 5, P 6, P 9, P 11, P 13, P 14, P 18, P 21, P 24, P 29, P 39, P 41 and P 71.

249 In that respect, it should be observed that:

- the case-law of the European Court of Human Rights relating to the interferences by the public authorities referred to in Article 8(2) of the ECHR, on which the appellant relied, concerns measures taken by those authorities against the will of a suspect by way of coercion;

- the judgments in Hoechst, Dow Benelux and Dow Chemical Ibérica, which DSM considers to have been superseded by that case-law, examined generally the nature and scope of the powers of investigation conferred by Article 14 of Regulation No 17 before ruling on the validity of decisions to investigate under Article 14(3), which, in the circumstances described in Article 14(6), permit recourse to coercive measures in the event of opposition from an undertaking to an investigation ordered by a decision.

250 However, it is clear from the wording of the appeal (paragraphs 7.8 to 7.12) that it is directed solely against the examination by the Court of First Instance of the investigation carried out on the premises of DSM on 6 December 1983 pursuant to an authorisation dated 29 November 1983. It therefore relates only to the application of Article 14(2) of Regulation No 17, which does not permit recourse to coercive action in the event of a refusal by an undertaking to submit to such an investigation, as the Court of First Instance rightly observed in paragraph 421 of the contested judgment.

251 Accordingly, the complaint made by DSM against paragraph 420 of the contested judgment must be rejected as irrelevant without its being necessary to rule on the merits of the statement in that paragraph that the development of the case-law of the European Court of Human Rights relating to Article 8 of the ECHR has no direct impact on the merits of the solutions adopted in Hoechst, Dow Benelux and Dow Chemical Ibérica. The ground of judgment challenged relates only to the examination by the Court of First Instance, in paragraph 419 of the contested judgment, of the decisions to investigate sent by the Commission pursuant to Article 14(3) of Regulation No 17, which are not mentioned in the appeal.

252 With respect to the authorised investigations, the Court of First Instance, analysing, in paragraph 417 of the contested judgment, the plea for annulment taken as a whole, rightly held first of all, on the basis of the judgments in Hoechst (paragraph 19), Dow Benelux (paragraph 30) and Dow Chemical Ibérica (paragraph 16), that that plea must be understood as alleging infringement of the general principle of Community law ensuring protection against intervention by the public authorities in the sphere of private activities of any person, whether natural or legal.

253 In paragraph 421 of the contested judgment, it specifically stated that investigations carried out on a simple authorisation are based on the voluntary cooperation of the undertakings (Hoechst, paragraph 31; Dow Benelux, paragraph 42; Dow Chemical Ibérica, paragraph 28). In that respect, it rightly held that the penalty provided for in Article 15(1)(c) of Regulation No 17 applies only if, having agreed to cooperate in the investigation, the undertaking fails to produce the books or other business documents requested in full.

254 Next, having regard to the authorisation of 29 November 1983, which, admittedly, was drafted in terms which would have benefited from greater precision but which contained the essential information - the subject-matter and purpose of the investigation - required by Article 14(2) of Regulation No 17, namely, in the present case, the gathering of information on the agreements suspected of being contrary to Article 85 of the Treaty, concerning producers of thermoplastics, including PVC, and relating to pricing and to the distribution of market shares amongst the participants, the Court of First Instance was entitled to hold in paragraph 422 of the contested judgment, in its assessment of the facts, that the plea alleging undue interference by the public authority was unfounded, in the absence of any evidence that the Commission went beyond the cooperation offered by the undertaking.

255 Finally, with respect to the complaint concerning the manner in which the investigations were carried out, the Court of First Instance was able to hold, in paragraph 425 of the contested judgment, without distorting the facts, that the allegedly excessive volume of documents of which the Commission obtained copies - which is, moreover, not otherwise defined by DSM - could not in itself constitute a defect in the conduct of the investigation, particularly when the Commission was carrying out an inquiry into an alleged agreement between all the European producers in a given sector.

256 It therefore did not err in law by rejecting the appellant's plea in so far as it challenged the validity of the authorised investigation carried out on its premises on 6 December 1983 and the measures taken in conducting that investigation.

257 It follows that this plea raised in the appeal must itself be rejected.

9. The plea raised by LVM and DSM alleging infringement of the privilege against self-incrimination

258 Before the Court of First Instance, LVM and DSM disputed the legality, in particular under Article 6 of the ECHR, of all the information obtained from the undertakings by the Commission pursuant to Article 11(2) or (5) of Regulation No 17 irrespective of the addressees of the requests for information or decisions requiring information.

259 They submitted that Article 6 of the ECHR, as interpreted by the European Court of Human Rights (judgment of 25 February 1993 in Funke, Series A No 256 A, paragraph 44; see also the opinion of the European Commission of Human Rights of 10 May 1994 in Saunders v United Kingdom, Reports of Judgments and Decisions 1996-VI, p. 2095, paragraphs 69, 71 and 76), lays down a right to remain silent and in no way to contribute to one's own incrimination, without any distinction being made according to the type of information requested. That right precludes the situation in which an undertaking is itself required to provide evidence of infringements which it has committed in any form, including documentary form.

260 None of the undertakings' responses was provided voluntarily. All of them were given under threat of the penalties provided for in Article 15(1)(b) of Regulation No 17.

261 LVM and DSM therefore submitted that none of the undertakings' responses could be adduced as evidence. All of the responses should have been excluded from consideration. They requested that the PVC II decision be annulled inasmuch as it was based on evidence obtained in breach of the privilege against self-incrimination.

262 In their appeals, LVM and DSM claim that the Court of First Instance erred in law when examining their plea alleging breach of the privilege against self-incrimination resulting from Article 6 of the ECHR. They state that their plea for annulment of the contested judgment is directed against paragraphs 439 to 459 thereof.

263 First of all, they complain that, in paragraphs 447 to 449 of the contested judgment, the Court of First Instance, on the issue of the scope of the right asserted by them, ruled to the same effect as the judgment in Case 374/87 Orkem v Commission [1989] ECR 3283, paragraphs 34 and 35, thereby affording lesser protection to that right than results from recent developments in the case-law of the European Court of Human Rights.

264 They complain further that, in paragraph 453 of the contested judgment, the Court of First Instance, having regard to Orkem, cited above, held that the illegality of the questions challenged by LVM and DSM, established in paragraph 451 of that judgment, did not affect the legality of the PVC II decision because the undertakings had either refused to answer those questions or denied the facts on which they were being questioned.

265 LVM and DSM submit that, contrary to the finding of the Court of First Instance, their plea related not only to those questions posed by the Commission in the decisions requiring information referred to in paragraphs 451 to 453 of the contested judgment, which remained unanswered, but also to the answers of certain undertakings which the Commission used as evidence. In that respect, they rely on six answers, namely two given by ICI and four given by BASF, Elf Atochem, Solvay and Shell respectively, to which they specifically referred in the replies lodged by them in the proceedings before the Court of First Instance.

266 They maintain that application of the legal criteria resulting from the case-law of the European Court of Human Rights should have led to those six answers being excluded from use as evidence.

267 It should be pointed out that, in paragraphs 441 and 442 of the contested judgment, to which the appellants raised no reasoned objection, the Court of First Instance declared the plea inadmissible, in so far as it sought to have the decisions requiring information which were addressed to each of them declared illegal, on the ground that the undertakings in question did not bring actions for annulment of those decisions within two months of their notification.

268 Accordingly, in paragraphs 443 to 459 of the contested judgment, the merits of the plea were considered only to the extent that it alleged infringement of the privilege against self-incrimination by virtue of:

- either the requests for information made under Article 11(2) of Regulation No 17, irrespective of the addressees, inasmuch as such measures could not be challenged by way of a direct action for annulment;

- or those decisions requiring information which were addressed, under Article 11(5) of Regulation No 17, to undertakings other than the appellants and against which the appellants were unable to bring an action for annulment.

269 The complaint made against the requests for information and against the decisions requiring information addressed to other undertakings implicitly consists of two aspects, namely the criticism (a) that the Commission obtained information incriminating those undertakings in their responses and (b) that it obtained information incriminating LVM and DSM in those same responses.

270 It should be observed that the Court of First Instance, which was not asked to examine the question whether the appellants had standing to raise the first aspect of that complaint, considered the merits of their plea as a whole, as defined and analysed in the preceding two paragraphs of this judgment.

271 In so doing, it did not follow the finding in paragraph 30 of the Orkem judgment that neither the wording of Article 6 of the ECHR nor the decisions of the European Court of Human Rights indicate that that article recognises any right not to give evidence against oneself.

272 On the contrary, in paragraphs 444 to 449 of the contested judgment, it in fact upheld the principles laid down in paragraphs 27, 28 and 32 to 35 of the Orkem judgment, in accordance with which, in particular:

- Regulation No 17 does not give an undertaking under investigation any right to evade the investigation on the ground that the results thereof might provide evidence of an infringement by it of the competition rules;

- on the contrary, it imposes on the undertaking an obligation to cooperate actively, which implies that it must make available to the Commission all information relating to the subject-matter of the investigation;

- in the absence of any right to remain silent expressly embodied in Regulation No 17, certain limitations on the Commission's powers of investigation during the preliminary inquiry are nevertheless implied by the need to safeguard the rights of the defence, which is a fundamental principle of Community law;

- in that connection, whilst, in order to ensure the effectiveness of Article 11(2) and (5) of Regulation No 17, the Commission is entitled to compel an undertaking to provide all necessary information concerning such facts as may be known to it and to disclose to it, if necessary, such documents relating thereto as are in its possession, even if the latter may be used to establish, against it or another undertaking, the existence of anti-competitive conduct, the Commission may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent on the Commission to prove.

276 Examined in the light of that finding and the specific circumstances of the present case, the ground of appeal alleging infringement of the privilege against self-incrimination does not permit annulment of the contested judgment on the basis of the developments in the case-law of the European Court of Human Rights.

277 First, the requests for information under Article 11(2) of Regulation No 17 were examined in paragraphs 455 to 457 of the contested judgment.

278 In that regard, the appellants have raised no express arguments against the grounds set out in therein, on the basis of which the Court of First Instance rejected the complaint made by them.

280 The complaint against the requests for information must therefore be rejected.

281 Second, the decisions requiring information adopted under Article 11(5) of Regulation No 17 were considered in paragraphs 451 to 454 of the contested judgment.

282 The Court of First Instance stated that it was undisputed that the questions contained in the decisions and challenged by the appellants were the same as those annulled by the Court of Justice in Orkem and that they were therefore vitiated by the same illegality. However, it found that the undertakings had either refused to answer those questions or denied the facts on which they were questioned. It concluded that the illegality of the questions at issue did not affect the legality of the PVC II decision and stated that the appellants had neither identified any answer given specifically to those questions nor indicated the use made of those answers by the Commission in the PVC II decision.

283 In thus ruling on the decisions adopted under Article 11(5) of Regulation No 17, it implicitly rejected, as a matter of law, the appellants' complaint concerning those questions posed in that legal context which did not involve answers of the undertakings which led them to admit the existence of the infringement with which the investigation was concerned. According to the Court of First Instance, those questions were therefore not illegal in terms of the Orkem judgment.

284 With respect to the questions in those decisions which it held to be illegal, the Court of First Instance found essentially, without referring exclusively to those which remained unanswered, that they did not lead to answers constituting admissions or incriminations of third parties since they were countered either by refusals to answer or by denials.

285 It then proceeded to carry out an appraisal of the facts which does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice (see, in particular, Joined Cases C-280/99 P to C-282/99 P Moccia Irme and Others v Commission [2001] ECR I-4717, paragraph 78, and the order of 13 November 2001 in Case C-430/00 P Dürbeck v Commission [2001] ECR I-8547, paragraph 24).

286 In their appeals, in support of their assertion that the answers of some undertakings contributed to the gathering of evidence, LVM and DSM merely refer, without providing any specific explanations, to the six answers given by other undertakings on which they relied in the replies lodged by them in the proceedings before the Court of First Instance.

287 They do not state whether those answers were given in response to the requests for information, that is to say, without any compulsion, or in pursuance of the decisions requiring information, that is to say, under a legal obligation.

288 To the extent that the answers in question were given in response to the requests for information, their use could not be considered unlawful by the Court of First Instance, for the reasons set out in paragraph 456 of the contested judgment (see paragraph 279 of this judgment).

289 To the extent that they were given in pursuance of the decisions requiring information, LVM and DSM do not indicate any aspects of those answers which were in fact used to incriminate the addressees themselves or the appellants, even on the assumption that the appellants' complaint relates to the plea based on the right not to incriminate oneself.

290 The appellants thus make it impossible for the Court of Justice to determine whether the Court of First Instance distorted the facts in its assessment of the answers given to the questions contained in the decisions which it ruled to be illegal.

291 Nor do they show that the answers given to the other questions contained in the decisions which it did not consider to be illegal were used for the purposes of incrimination.

292 It follows that the complaint against the decisions requiring information must likewise be rejected without its being necessary to rule on the question whether the Court of First Instance erred in law in holding, in paragraphs 446 to 449 of the contested judgment and by reference to the Orkem judgment, that such decisions are illegal only in so far as a question obliges an undertaking to supply answers leading it to admit that there has been an infringement.

293 It follows from the above that this plea must be rejected in its entirety.

10. The plea in law raised by DSM and ICI alleging failure to comply with the obligation of professional secrecy and infringement of the rights of the defence

294 Before the Court of First Instance, DSM and ICI pleaded infringement of the obligation of professional secrecy as provided for in Article 20 of Regulation No 17, which provision is also intended to protect the rights of the defence. They complained that, in the context of the procedure relating to the PVC sector, during the authorised investigation carried out at the premises of ICI in November 1983, the Commission obtained from ICI fresh copies of documents - namely planning documents', a document called Sharing the Pain' and ICI's note of 15 April 1981 - of which it had knowledge and of which it had obtained copies during a previous authorised investigation carried out at the same premises on 13 and 14 October 1983 in the context of a different procedure relating to the polypropylene sector.

295 DSM put forward the same complaint with regard to the monthly and quarterly reports on all polymers produced and sold at that time, that is to say, polypropylene, PEDB and PVC. Those documents, contained in annexes P 5, P 6, P 9, P 11, P 13, P 14, P 18, P 21, P 24, P 29, P 39, P 41 and P 71, were likewise obtained by the Commission on 13 and 14 October 1983 in the context of the procedure concerning polypropylene and then requested once again from ICI and DSM during the authorised investigations carried out in the context of the procedure relating to the PVC sector at the premises of those two undertakings on 21 to 23 November 1983 and 6 December 1983 respectively.

296 DSM argued that the conduct complained of also infringed Article 6 of the ECHR, which, although it contains no specific rules governing the obtainment and use of evidence, does not preclude a review of whether a proceeding as a whole, including the way in which the evidence is presented, is fair (judgments of the European Court of Human Rights of 20 November 1989 in Kostovski, Series A No 166, paragraph 39; of 22 April 1992 in Vidal, Series A No 235 B, paragraph 33; and of 16 December 1992 in Edwards, Series A No 247 B, paragraph 34).

297 DSM and ICI complain that the Court of First Instance rejected their arguments in accepting the legality of the use of the documents in issue in the form of fresh copies of those documents obtained in the context of the procedure relating to the PVC sector. They claim that that conclusion is inconsistent with the case-law established in Dow Benelux, in Case C-67/91 Asociación Española de Banca Privada and Others [1992] ECR I-4785 and in Case C-36/92 P SEP v Commission [1994] ECR I-1911).

298 In that connection, it should be observed that, under Articles 20(1) and 14(2) and (3) of Regulation No 17, information obtained during investigations must not be used for purposes other than those indicated in the order or decision pursuant to which the investigation is carried out (Dow Benelux, paragraph 17).

299 That requirement is intended to protect, in addition to the professional secrecy expressly referred to in Article 20(1) of Regulation No 17, the undertakings' defence rights (see Dow Benelux, paragraph 18), which not only form part of the fundamental principles of Community law but are also enshrined in Article 6 of the ECHR.

300 Those rights would be seriously endangered if the Commission were able to rely on evidence against undertakings which was obtained during an investigation but was not related to the subject-matter or purpose thereof (Dow Benelux, paragraph 18).

301 On the other hand, it cannot be concluded that the Commission is precluded from initiating an inquiry in order to verify or supplement information which it happened to obtain during a previous investigation if that information indicates the existence of conduct contrary to the competition rules in the Treaty (Dow Benelux, paragraph 19).

302 In this case, after rightly referring to the principles laid down by the Court of Justice in Dow Benelux, which are supported by the cases relied on by DSM, namely Asociación Española de Banca Privada (paragraph 43) and SEP (paragraph 29), the Court of First Instance held in paragraph 474 of the contested judgment that the Commission did not introduce into this case of its own motion documents which it had obtained in another case, but obtained those documents again in the context of authorisations to investigate which primarily concerned PVC.

303 Based on that finding of fact, the Court of First Instance then correctly examined the plea as posing the question whether the Commission, having obtained documents in one matter and used them as evidence to open another proceeding, was entitled, on the basis of authorisations or decisions concerning that second proceeding, to request fresh copies of those documents and then use them as evidence in the second matter.

304 As regards that question, it rightly took the view, in paragraph 476 of the contested judgment, that, since the Commission had obtained those documents anew on the specific basis of authorisations to investigate directed primarily at PVC, in accordance with Article 14(2) of Regulation No 17, and had used them for the purpose indicated in those authorisations, it had observed the rights of defence afforded to undertakings under that provision.

305 Undertakings are in no way deprived of the protection afforded by Article 20 of Regulation No 17 if the Commission makes a new request for a document. From the point of view of the defence of their rights, they are in the same position as where the Commission no longer has the document, since it is forbidden to make direct use as evidence in a second proceeding of a document obtained in a previous proceeding.

306 It is necessary to point out, as the Court of First Instance did in paragraph 477 of the contested judgment, that the fact that the Commission has obtained documents in a given matter for the first time does not confer such absolute protection that those documents cannot be requested under statutory powers in another matter and used as evidence.

307 It follows that the Court of First Instance did not err in law by concluding that there was no infringement of Article 20 of Regulation No 17 or of the fundamental principle of observance of the rights of the defence.

308 Accordingly, this plea must be rejected.

11. The plea raised by LVM, DSM, Elf Atochem, Degussa and Enichem alleging infringement of the rights of the defence as a result of insufficient access to the Commission's file

309 LVM, DSM, Elf Atochem, Degussa and Enichem argue that the Court of First Instance erred in law by rejecting the plea raised before it by which they alleged infringement of the fundamental principle of observance of the rights of the defence as a result of the insufficient access granted by the Commission to its file during the administrative procedure.

310 They observe that the Court of First Instance held that the Commission did not grant them proper access to its file during the administrative procedure.

311 They nevertheless complain that it made annulment of the PVC II decision conditional on its being established that the non-disclosure of documents could have influenced the course of the procedure and the content of that decision to the detriment of the undertaking concerned.

312 According to the appellants, for the purposes of annulment, it is not necessary for the non-disclosure actually to have influenced the procedure. In the view of LVM and DSM, having regard to the right of equal access to the file emanating from Article 6 of the ECHR (judgment in Edwards, cited above, paragraph 36; decision of the European Commission of Human Rights of 6 October 1977 in Lynas v Switzerland, application No 7317/75, Yearbook of the European Convention on Human Rights, p. 413), the mere establishment of incomplete access to the file must lead to annulment of the Commission's decision. To the same effect, Enichem submits that the failure to disclose all documents in the file, apart from confidential or internal documents, constitutes in itself an infringement of the rights of the defence. According to Degussa, it is sufficient for the Commission to fail to make available documents which may be relevant to the undertakings' defence.

313 LVM, DSM, Elf Atochem, Degussa and Enichem complain that the Court of First Instance then itself examined the documents which had not been accessible during the administrative procedure in order to determine whether their non-disclosure could have influenced the course of the procedure and the content of the PVC II decision to the detriment of the undertaking concerned.

314 LVM and DSM claim that such an approach contradicts the Court of First Instance's own finding that an infringement of the rights of the defence at the stage of the administrative procedure cannot be remedied in the judicial proceedings. Like Degussa and Enichem, they consider that, in examining the documents in question, the Court of First Instance acted as investigator, instead of the Commission, and remedied the procedure a posteriori.

317 Infringement of the right of access to the Commission's file during the procedure prior to adoption of the decision can, in principle, cause the decision to be annulled if the rights of defence of the undertaking concerned have been infringed (Hercules Chemicals, paragraph 77).

319 In the present case, it is common ground that during the administrative procedure the Commission granted access to only part of its administrative file, as the Court of First Instance stated in paragraph 1010 of the contested judgment before going on to find, in paragraph 1019, that the Commission had not therefore given the applicants proper access to the file.

320 The parties also agree that, by letter of 7 May 1997, the Court of First Instance, in the context of measures of organisation of procedure, granted each of the appellants access to the Commission's file apart from internal documents of the Commission and documents containing business secrets or other confidential information. It invited the appellants to submit their comments for the purpose of showing how, in their view, the failure to disclose certain documents could have affected their defence. The appellants submitted such comments to it.

322 It did not err in law by going on to rule, in paragraph 1020 of the contested judgment, that the fact that the Commission had not granted proper access to its file could not of itself warrant annulment of the PVC II decision. It merely expressed in different terms the notion that that fact is, in principle, capable of leading to such annulment (see paragraph 317 of this judgment).

323 Similarly, in pointing out in paragraph 1021 of the contested judgment that it was necessary to consider whether the appellants' ability to defend themselves had been affected by the conditions in which they had had access to the Commission's administrative file, it laid down the criterion that the rights of defence of the undertaking concerned must have been infringed (see also paragraph 317 of this judgment).

324 Finally, in ruling in the same paragraph of the contested judgment that it is sufficient for a finding of infringement of the rights of the defence for it to be established that the non-disclosure of the documents in question might have influenced' the course of the procedure and the content of the decision to the detriment of an applicant, it merely laid down the condition that the applicant concerned must show only that it could have used the documents in question for its defence (see paragraph 318 of this judgment).

325 Thus, far from remedying the procedure a posteriori, it rightly restricted its review to the sole question whether the documents at issue could have been relied on by an undertaking in its defence.

326 It correctly concluded, in paragraph 1022 of the contested judgment, that the decision would have to be annulled if its review showed that that had been the case.

327 By explaining at that point that the infringement of the rights of the defence committed at the stage of the administrative procedure could not be remedied during the proceedings before the Court of First Instance, whose judicial review cannot be a substitute for a thorough investigation of the case in the course of the administrative procedure, it merely confirmed, without any contradiction, that the scope of its power of review was limited. It confirmed that limitation again, in particular in paragraph 1035 of the contested judgment, by stating that the purpose of its review was to determine whether the failure to disclose documents or extracts could have affected the appellants' ability to conduct their defence.

328 It follows that the complaints raised by the appellants against the framework of the Court of First Instance's analysis are unfounded.

329 Degussa further maintains that the documents not disclosed during the administrative procedure, which were considered in paragraph 1060 et seq. of the contested judgement, should indeed have been regarded as relevant to the defence. Those documents demonstrate, in particular, fierce competition, aggressive conduct of PVC producers with regard to prices, poor functioning of the compensation mechanism between producers and only limited success of the price initiatives, which were regarded in some cases as having been failures. It was therefore by no means inconceivable that the Commission would take those circumstances into account in favour of the appellant. In accordance with the Commission's practice, proof that implementation of a prohibited agreement has been a failure generally leads to a reduction in the amount of the fine.

332 The disputed paragraphs of the contested judgment, considered in the light of Degussa's objections and the statement of reasons in the PVC II decision, do not reveal any distortion of the facts.

333 In paragraph 1061 of the contested judgment, the Court of First Instance states that the documents relied upon are not intended directly to cast doubt on others supplied by the Commission in support of its conclusions but to demonstrate the existence of fierce competition incompatible with those conclusions.

334 However, it goes on to state as follows in paragraphs 1062 and 1063 of the contested judgment:

1062 The [PVC II] decision shows, however, that those circumstances were fully taken into account. Thus the [Commission] does not claim that prices increased consistently during the infringement period, or even that they remained stable during that period. On the contrary, the tables annexed to the [PVC II] decision show that prices did not cease to fluctuate, reaching their lowest level during the first three months of 1982. The Commission thus expressly recognised that the price initiatives had met with limited success and were occasionally regarded as failures ([PVC II] decision, points 22 and 36 to 38). It also indicated some of the reasons for those results: in addition to factors outside producers' control (anticipated purchases by consumers, imports from non-member countries, fall in demand, especially in 1981 and 1982, special discounts ...), it found that certain producers sometimes gave preference to their sales volumes to the detriment of their prices ([PVC II] decision, points 22 and 38) and that, given the characteristics of the market, it would have been futile to attempt concerted price initiatives unless conditions were favourable to an increase ([PVC II] decision, point 38). Nor did the Commission ignore the existence of "aggressive" conduct on the part of some undertakings ([PVC II] decision, point 22). Likewise, it acknowledged that the "sharing the pain", Alcudia and DSM documents, whilst evidencing the existence of a compensation mechanism between producers, also supported the conclusion that those mechanisms did not function correctly ([PVC II] decision, point 11). It was in the light of those considerations as a whole that the Commission determined the amount of the fine to be imposed on the applicants.

1063 Moreover, both Appendices P1 to P70 and the documents sent by the Commission to the parties in May 1988 already supplied a plentiful documentary basis enabling the applicants to argue, as indeed they have done, the existence of the circumstances which they allege today.'

335 Having regard to that reasoning in the contested judgment, which is confirmed by a reading of the cited points of the PVC II decision, it appears that Degussa has not only failed to establish any distortion of the facts but is also raising an irrelevant complaint, inasmuch as:

- the Commission took into account the circumstances which, according to Degussa, could have been useful to its defence;

- Degussa was able to rely on those circumstances during the administrative procedure, and indeed did so, as a result of the numerous documents containing passages showing that the PVC producers did not pursue a uniform pricing policy and found themselves in relatively fierce competition with each other, which documents it expressly acknowledges receiving from the Commission on 3 May 1988 as documents capable of being used in defence'.

336 Accordingly, Degussa's complaint against the appraisal by the Court of First Instance must be rejected.

337 Finally, Enichem contests the examination by the Court of First Instance of the documents selected by it from amongst those made available during the judicial proceedings and which led the Court of First Instance to conclude that the rights of the defence had not been infringed.

338 It complains that the Court of First Instance excluded a great many of those documents without even examining them on the ground that they were dated prior to or after the investigation period. It concedes that that assessment relates to findings of fact made by the Court of First Instance and that such findings cannot be contested in the context of an appeal. However, it criticises the method used by the Court of First Instance to exclude the documents in question. The Court of First Instance applied a formalistic temporal criterion which was unrelated to the substance. According to the appellant, such a criterion is unacceptable. It submits that some documents contained information relevant to the assessment of the conduct of the producers, especially its own, in particular during the period and in respect of the facts which were the subject of the investigation. It adds that information in that regard could also be gleaned from documents not dating from the investigation period, for example, where they make reference to that period or permit a comparison between the preceding period and the subsequent period.

339 In that regard, it should be recalled that, in paragraph 1040 of the contested judgment, the Court of First Instance excluded the documents and extracts of documents concerning a period prior to the origin of the cartel or after the date of the end of the infringement used by the Commission in calculating the amount of the fine. For that purpose, it stated that it is not the date of the document which is important but the relevance of the extract relied upon by the applicant concerned with regard to the period of the infringement.

340 Enichem, under the guise of a challenge to a criterion of assessment applied to the documents in question, is in fact attempting to challenge the assessment of each of those documents carried out by the Court of First Instance with regard to their content, even though that assessment cannot be reviewed on appeal unless there has been distortion of the evidence (see paragraph 285 of this judgment).

341 However, it does not state precisely which passages of the documents expressly identified confirm its submission that it could have used them for its defence irrespective of their dates or the period which they cover.

342 Thus, it does not enable the Court of Justice to review whether the Court of First Instance distorted the facts in its assessment.

343 It follows that the complaint must be rejected.

344 Consequently, this plea must be rejected in its entirety.

12. The plea raised by Montedison alleging infringement of the right to a fair hearing, of Articles 48(2) and 64 of the Rules of Procedure of the Court of First Instance and of the principle of personal liability as a result of the organisation of the oral procedure

345 Montedison submits that the invitation to submit a common oral defence at the hearing, insisted upon by the Court of First Instance, was incompatible with the right to a fair hearing laid down in Article 6 of the ECHR, and that no provision is made by Article 64 et seq. of the Rules of Procedure of the Court of First Instance for a common defence. Such a defence requires, where necessary, the exclusion of arguments, evidence and submissions which are not shared by all of the applicants. Moreover, the insistence on the presentation of such a defence is tantamount to a presumption of those parties' guilt.

346 As a result of the organisation of a common defence, the Court of First Instance completely ignored two of Montedison's principal arguments. Furthermore, the Court of First Instance did not consider it necessary to examine the evidence put forward in Montedison's application even though, in the appellant's view, it was apparent from that evidence that none of the documents gathered by the Commission showed that it had participated in the infringements discovered. In the end, the Court of First Instance admitted only one piece of evidence against Montedison and considered only one argument submitted by that appellant with respect to the evidence favourable to it and, when doing so, also erred in law as to the content of that argument.

347 In that regard, it should be observed that, in its pleading, Montedison relies on Article 48(2) of the Rules of Procedure of the Court of First Instance, which relates to new pleas in law introduced in the course of proceedings. However, that provision is irrelevant to the complaint submitted.

348 In accordance with Article 64(2) of the Rules of Procedure of the Court of First Instance, the purpose of measures of organisation of procedure is, inter alia, to ensure efficient conduct of the oral procedure.

349 In compliance with the principle of hearing both parties and the rights of the defence, which are also enshrined in Article 6 of the ECHR, the Court of First Instance may thus invite the parties to submit collectively their common pleas in law, in order to avoid repetition of identical arguments, with each party continuing to have the opportunity to submit its own arguments in a complementary manner.

350 In this case, the cases were joined for the purposes of the oral procedure by order of 22 January 1998.

351 In its appeal, Montedison neither establishes nor even claims that the invitation to submit a common oral defence insisted upon by the Court of First Instance' was coupled with any prohibition precluding it from presenting individually the arguments which it did not share with the other parties. Contrary to its assertion, the sole fact that identical pleas in law are submitted collectively in no way implies a presumption of guilt on the part of the undertakings concerned.

352 Accordingly, the complaint in respect of the conduct of the oral procedure cannot be accepted.

353 It is therefore unnecessary to consider further Montedison's allegation that the Court of First Instance did not consider the evidence put forward in its application and based its decision on just one piece of evidence relating to Montedison, since the appellant formulates its complaint not as a separate plea in law but solely for the purpose of establishing an injury to its rights of defence resulting from an alleged defect in the conduct of the oral procedure and thus justifying annulment of the contested judgment. That complaint is based on a premiss which, although essential for the plea to succeed, is erroneous.

354 It follows that this plea must be rejected.

13. The plea raised by Montedison alleging infringement of the right to a fair hearing and of Article 48(2) of the Rules of Procedure of the Court of First Instance during the consideration of the evidence

355 Montedison complains that the Court of First Instance infringed both its right to a fair hearing and Article 48(2) of the Rules of Procedure of the Court of First Instance when considering the evidence.

356 First, it observes that, in paragraphs 903 and 904 of the contested judgment, the Court of First Instance established the existence of a quota or compensation mechanism on the basis of a document making only indirect reference to Montedison, and that it stressed that ICI had demanded an increase in quotas. In that connection, it did not take into consideration the explanation provided by Montedison on pages 46 and 47 of its application.

357 It should be noted that, in paragraph 896 of the contested judgment, the Court of First Instance accurately summarised the arguments contained in Montedison's application, on which it relies in its appeal. It observed that the appellant disputed the probative value of a document entitled Alcudia' and maintained that no Italian undertaking had adhered individually to a compensation system, adding that, even if such a mechanism had in fact been put into operation, it would only have been one of those rationalisation measures taken under bilateral agreements which the Commission had itself advocated as a replacement for the crisis cartel. Next, in paragraphs 903 and 904 of that judgment, it expressly responded to that argument and held, on the basis of two documents, one of which was the Alcudia document, that Montedison had participated in the part of the infringement in question.

358 The complaint is thus clearly unfounded. Moreover, it effectively challenges the very assessment of the facts carried out by the Court of First Instance, which falls outside the ambit of the powers of review of the Court of Justice save where the evidence has been distorted (see paragraph 285 of this judgment), which has not in any way been established in this case.

359 This complaint must therefore be rejected.

360 Second, Montedison claims that the Court of First Instance failed to take into account 23 documents, referred to on pages 24 to 31 of its application, which allegedly show that there was aggressive competition which was incompatible with a cartel in respect of prices and market quotas.

361 However, examination of the application submitted by the appellant to the Court of First Instance reveals no reference to the 23 documents relied on, which are in any case identified only by their number. Moreover, Montedison does not specify which part of the contested judgment it is challenging.

362 In those circumstances, its complaint must be rejected.

363 Third, Montedison complains that, in paragraph 906 of the contested judgment, the Court of First Instance excluded the table produced by it, in which it compared the target prices alleged by the Commission and those actually charged by it in order to show that it could not have participated in the price initiatives. It disputes that the Court of First Instance was entitled to do so on the ground that it had stated neither the source of the figures which it claimed constituted the prices actually charged by it nor the precise date on which those prices were determined. It submits that the source could only have been the compulsory accounts showing all the sales of Montedipe, the subsidiary to which Montedison transferred its PVC production activities with effect from 1 January 1981, and that the prices were the average sale prices charged during the periods in question.

364 However, it must be reiterated that, since Article 48(2) of the Rules of Procedure of the Court of First Instance is irrelevant to the complaint considered here, Montedison is in fact, under the guise of its plea alleging infringement of its right to a fair hearing, seeking to challenge the appraisal of an item of evidence carried out by the Court of First Instance.

365 Since such an appraisal is not open to review by the Court of Justice, unless the evidence in question has been distorted (see paragraph 285 of this judgment), which has not in any way been established in the present case, the appellant's complaint must be rejected.

366 Fourthly and finally, Montedison complains that, in paragraphs 1009 to 1028 of the contested judgment, the Court of First Instance refused to allow it to put forward in its favour four new documents of which it had become aware in the context of the measure of organisation of procedure adopted by the Court of First Instance with respect to access to the Commission's file. In its view, the Court of First Instance was wrong to hold that, since it had not raised any pleas concerning access to the Commission's file, there was no need to take account of the observations submitted by it in pursuance of that measure of organisation of procedure.

367 The appellant submits that those four documents illustrate the disastrous fall in prices in Italy, the aggressiveness of the competition and the fact that the foreign undertakings were not informed of the situation on the Italian market.

368 The appellant maintains that, under Article 48(2) of the Rules of Procedure of the Court of First Instance, an undertaking which, in the course of proceedings, identifies documents relevant to its defence may raise a new plea in law on the basis thereof to the extent that they deal with matters of law or fact coming to light in the course of the procedure.

14. The plea raised by Enichem alleging infringement of Article 44(1)(c) of the Rules of Procedure of the Court of First Instance

380 Enichem points out that in 1995 the parties, at the request of the Court of First Instance, suspended their written pleadings contesting the PVC II decision in view of the organisation of a hearing relating exclusively to the infringements of procedural rules alleged against the Commission. It adds that the Court of First Instance stated that the arguments submitted in the name of all the parties would be taken into account only in favour of those parties which had raised those complaints in their own application.

381 Enichem explains that, upon resumption of the written procedure after that hearing, rather than restating in its reply all the submissions made in its name also, it chose to refer thereto and to attach the texts of the joint submissions.

382 It complains that, in paragraphs 42 and 43 of the contested judgment, the Court of First Instance ruled in essence that, to the extent that it referred to the joint submissions, its reply did not satisfy the requirements of Article 44(1)(c) of the Rules of Procedure of the Court of First Instance and could not therefore be considered because, even though the other submissions were annexed, the general reference to those submissions could not remedy the failure to state in the reply the material matters of law and fact relied on.

383 It submits that the Court of First Instance thus misapplied Article 44(1)(c) of its Rules of Procedure, inasmuch as:

- the procedural complaints raised in the joint submissions had already been included in its application;

- the arguments put forward at the hearing were part of the procedure and the Court of First Instance was aware of them since they had been pleaded before it;

- the rebuttals submitted by the applicants, in particular Enichem, to the arguments put forward by the Commission in its defence had already been set out in the joint submissions;

- the reference in the reply to the texts of the joint submissions necessarily meant that the appellant adopted the entire content thereof as its own so that the Court of First Instance did not need to seek and identify in the annexes the pleas on which the application or the reply were based.

384 According to Enichem, the result of the conclusion reached by the Court of First Instance was that the part of its reply relating to procedural defects was not taken into account for the purposes of the judgment or that it was curtailed to exclude all of the arguments contained in the joint submissions.

385 It should be stated in that regard that a complete restatement or even a summary, in a written pleading, of arguments previously submitted in an oral procedure in relation to pleas contained in the application is not a precondition for the examination of those arguments by the Court of First Instance. From the oral procedure onwards, those arguments are included in the case submissions and are known to the court before which the case has been brought. They must therefore be examined by that court since, being relevant and relating to pleas already raised, they do not constitute a new plea for the purposes of Article 48(2) of the Rules of Procedure of the Court of First Instance.

386 Thus, it is clear that the general reference, made by Enichem in its reply, to the content of the joint submissions presented on 13 and 14 June 1995 was superfluous.

387 Therefore, by excluding that reply, in paragraph 43 of the contested judgment, to the extent that reference is made therein to the joint submissions', the Court of First Instance formally misapplied Article 44(1)(c) of its Rules of Procedure to elements of the oral procedure, inasmuch as it was obliged in any event to examine the arguments properly submitted in that procedure.

388 However, in accordance with Article 51 of the EC Statute of the Court of Justice, a breach of procedure before the Court of First Instance cannot lead to annulment unless it is shown to have adversely affected the interests of the appellant.

389 Enichem restricts itself to asserting in essence, and without further explanation, that the arguments properly submitted in its name in the oral procedure were not taken into account in the contested judgment.

390 It identifies no precise argument of any relevance which was not subjected, in the contested judgment - either as an element of the oral procedure known to the Court of First Instance or expressly restated in a reply submitted by another appellant and not declared inadmissible - to an examination relating to all the parties presenting the joint submissions, including Enichem, and which, had it been examined, could have affected the outcome of the dispute.

391 In those circumstances, this plea must be rejected.

15. The plea raised by Wacker-Chemie and Hoechst alleging incomplete appraisal of the facts

16. The plea raised by Wacker-Chemie and Hoechst alleging distortion of the evidence

407 Wacker-Chemie and Hoechst complain that, in paragraph 609 et seq. of the contested judgment, the Court of First Instance distorted the evidence resulting from the figures supplied to the Commission by Hoechst, in particular that contained in the auditors' certificate referred to in connection with the preceding plea. In the western European countries, the results of audits certified by qualified accountants generally have a certain probative value as evidence and enjoy, at the very least, a presumption of accuracy and completeness.

408 As has already been pointed out in paragraph 285 of this judgment, the appraisal of the facts by the Court of First Instance does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice.

409 In order to establish that the total sales of the German producers shown in the Atochem table (198 226 tonnes) could not have been obtained without an exchange of data between the producers, the Court of First Instance, in paragraph 609 of the contested judgment, stated that the difference between that total and the total resulting from the first set of figures voluntarily declared by Hoechst and from the data provided by BASF, Wacker-Chemie and Hüls (198 353 tonnes) was negligible.

410 In the following paragraph of the contested judgment, in order to exclude the second set of figures provided, without any supporting documentation, to the Commission by Hoechst at its hearing, the Court of First Instance stated that those figures were not reliable because they would have involved Hoechst loading its plant at over 105% whilst the other producers achieved only 70% occupation rates. In particular, it noted that Hoechst had itself subsequently acknowledged that those new figures were wrong.

411 As regards the auditors' certificate on which Wacker-Chemie and Hoechst principally base their complaint of distortion of evidence, the Court of First Instance stated, in paragraph 611 of the contested judgment, that, by comparison with the figures originally provided, those appearing in the auditors' certificate contained only a negligible amendment which merely confirmed the accuracy of the figures in the Atochem table. It added that the difference, as compared to the figures in that table, resulted from the simple addition, as sales to consumers', of Hoechst's own consumption for its plant at Kalle.

412 The Court of First Instance did not therefore distort the auditors' certificate relied upon by admitting, in paragraph 611 of the contested judgment, the figures initially provided by Hoechst and observing that the certificate did not call those figures into question.

413 Accordingly, this plea must be rejected.

17. The pleas raised by Montedison, Elf Atochem, Degussa, Wacker-Chemie and Hoechst alleging failure to respond to certain pleas as well as contradictory and insufficient grounds of the contested judgment

414 Montedison complains that the Court of First Instance did not deal with its plea alleging a definitive transfer to the Community judicature of the power to impose penalties after the Commission had adopted the PVC I decision, which transfer subsisted following the annulment of that decision. Elf Atochem submits that the Court of First Instance did not respond to its plea alleging differences between the PVC I and PVC II decisions. Degussa complains that the contested judgment failed to respond to its plea based on the absence of any re-intervention by the Hearing Officer prior to the PVC II decision. Lastly, Wacker-Chemie and Hoechst plead that the grounds of the judgment were contradictory and insufficient as regards the examination of the evidence.

415 It is necessary to consider each of those pleas in turn.

(a) The plea raised by Montedison alleging failure to deal with its plea alleging a definitive transfer to the Community judicature of the power to impose penalties following the Commission's decision

416 Montedison complains that the Court of First Instance did not examine the first plea raised by it, alleging infringement of Article 172 of the EC Treaty (now Article 229 EC) and Article 17 of Regulation No 17, read in conjunction with Article 87(2)(d) of the EC Treaty (now, after amendment, Article 83(2)(d) EC).

417 It observes that Article 172 of the Treaty and Article 17 of Regulation No 17 confer on the Community judicature unlimited review jurisdiction, that is to say an unlimited power to assess the facts. Since Article 17 of Regulation No 17 confers on the Community judicature, in particular, the power to cancel, reduce or increase the fine, the Commission loses that power once its decision has been contested. The power of assessment is in fact definitively transferred to the Community judicature.

418 The Commission submits that, in the appeal, no passage or part of the contested judgment is cited as being specifically challenged by the complaint. It therefore questions whether the complaint is admissible.

419 In opposition to the appellants' arguments, it maintains that, in paragraphs 65 to 85 of the contested judgment, the Court of First Instance considered - albeit without linking it expressly to Montedison - the plea alleging that it was not possible for the Commission to adopt the PVC II decision on account of the authority of res judicata attaching to the Court's judgment of 15 June 1994. It also observes that, in paragraphs 86 to 99 of the contested judgment, the Court of First Instance, referring expressly to Montedison, ruled on the plea alleging infringement of the principle of non bis in idem and thus on the question of readoption of the annulled first decision of the Commission.

420 It adds that the obligation to clarify the arguments is incumbent on each applicant from the first-instance proceedings onwards. Consequently, where the Court of First Instance is not placed in a position enabling it to consider a plea because the applicant did not explain it sufficiently, the contested judgment cannot be challenged in that respect, particularly on the ground of failure to consider the plea in question or of failure to state adequately the grounds for its rejection.

421 Finally, it contends that the appeal merely restates the pleas already raised at first instance. Those pleas, which have already been considered and rejected by the Court of First Instance for appropriate reasons, are inadmissible because they are simply aimed at securing a re-examination of the application submitted to that court (Baustahlgewebe, paragraphs 113 to 115).

422 In that respect, it should be observed that Montedison did raise before the Court of First Instance a plea alleging a definitive transfer to the Community judicature of the power to impose fines as a result of the action brought against the PVC I decision. That plea was expressly based on infringement of Articles 172 of the Treaty and 17 of Regulation No 17, in conjunction with Article 87(2)(d) of the Treaty.

424 In the present case, the Commission maintains that the Court of First Instance dealt with the plea in question in paragraphs 65 to 85 and 86 to 99 of the contested judgment.

425 However, the plea raised by Montedison in its application does not correspond to the two pleas considered in those parts of the contested judgment, which allege infringement of the principles of, respectively, res judicata and non bis in idem. Montedison's plea was founded on a different legal basis, which is clearly explained.

426 The Commission cannot argue that Montedison did not sufficiently explain its plea and that, consequently, it cannot raise any challenge to the contested judgment. Montedison's application contained a long line of argument leading to the conclusion that the effect of the provisions relied upon was to bring about a definitive transfer to the Community judicature of the power to impose penalties.

427 It is therefore apparent that Montedison is justified in alleging a failure to respond to a plea.

(b) The plea raised by Elf Atochem alleging a failure to respond to its plea that there were differences between the PVC I and PVC II decisions

429 Elf Atochem complains that the Court of First Instance did not rule on its plea alleging that the PVC II decision was different in substance from the PVC I decision, in support of which it and other appellants presented lengthy argument before the Court of First Instance, as is apparent from paragraph 222 of the contested judgment. That fact is sufficient, it maintains, to justify annulment of the contested judgment.

430 It should be observed in that regard that, in paragraph 222 of the contested judgment, the Court of First Instance pointed out that Elf Atochem and certain other appellants had argued, in support of their plea based on the right of the undertakings to be heard again, that, compared with the PVC I decision, the wording of the PVC II decision differed on essential points, such as the assessment of the rules on limitation, the removal of two sentences concerning the effects of the agreement, the addition of a section relating to the procedure since 1988 and the omission of Solvay and Norsk Hydro.

431 In holding, in paragraph 252 of the contested judgment, that the text of the PVC II decision did not contain any new objection compared with the text of the PVC I decision, and in stating in that regard that the fact that the PVC II decision was adopted in different factual and legal circumstances does not in any sense mean that it contained new objections, the Court of First Instance implicitly ruled that the differences between the two decisions did not relate to essential points. In paragraph 257 of the contested judgment, it then expressly confirmed that assessment by stating that the PVC II decision contained only editorial amendments not affecting the objections'.

432 It thus responded to the argument advanced by Elf Atochem in support of the plea raised before it.

433 This ground of appeal must therefore be rejected.

(c) The plea raised by Degussa alleging a failure to respond to its complaint concerning non-intervention by the Hearing Officer prior to adoption of the PVC II decision

434 Degussa complains that, in paragraph 270 of the contested judgment, the Court of First Instance rejected its plea that new administrative procedural measures were needed following the annulment of the PVC I decision, without considering its complaint of lack of intervention by the Hearing Officer.

435 It is sufficient in that regard to note that, in paragraph 253 of the contested judgment, the Court of First Instance, having established that a new hearing of the undertakings was not necessary following the annulment of the PVC I decision, concluded in essence that a fresh intervention by the Hearing Officer in the circumstances provided for in the decision of 24 November 1990, which had meanwhile become applicable, was not required (see paragraph 126 of this judgment).

436 It did therefore respond to the plea submitted by the appellant.

437 Consequently, this ground of appeal must be rejected.

(d) The plea raised by Wacker-Chemie and Hoechst alleging that the grounds of the contested judgment are contradictory and insufficient as regards consideration of the documentary evidence

438 In parallel with their pleas alleging incomplete assessment of the facts and distortion of the evidence, considered respectively in paragraphs 392 to 405 and 407 to 413 of this judgment, Wacker-Chemie and Hoechst complain that, in paragraphs 610 and 611 of the contested judgment, the Court of First Instance gave contradictory and insufficient reasons in its consideration of the evidence concerning the existence of a quota system.

439 They claim that the Court of First Instance did not give the parties the opportunity to correct, with the help of the auditors' certificate referred to in their two other pleas mentioned above, the incorrect information which had been provided by mistake. Furthermore, it did not take into account the documents in the procedural file, which would have shown that the figures initially provided by Hoechst were in conformity with those contained in the auditors' certificate. Finally, it failed to recognise the causal link by disregarding the fact that Hoechst had corrected its own sales figures following an amendment by the Commission of the basis of its requests for information and of its measures for taking evidence.

440 It is sufficient to state in that regard that, under the guise of the plea in question, Wacker-Chemie and Hoechst are in fact seeking to challenge the appraisal of the evidence carried out by the Court of First Instance.

441 As is pointed out in paragraph 285 of this judgment, such an appraisal cannot be reviewed by the Court of Justice, unless the evidence has been distorted. However, it has already been stated in paragraph 412 of this judgment, with respect to the consideration of the appellants' plea alleging distortion of the evidence at issue in the present plea, that the complaint of distortion is unfounded, particularly as regards the auditors' certificate.

442 Consequently, this ground of appeal must be rejected.

18. The plea raised by LVM, DSM, Enichem and ICI alleging insufficient or erroneous grounds for the rejection of a plea alleging infringement by the Commission of Article 190 of the Treaty in choosing to adopt the PVC II decision following annulment of the PVC I decision

443 LVM, DSM, Enichem and ICI complain that, in paragraphs 386 to 391 of the contested judgment, the Court of First Instance rejected their plea alleging infringement by the Commission of Article 190 of the Treaty resulting from the provision of an insufficient statement of reasons for its choosing to adopt the PVC II decision following annulment of the PVC I decision.

444 LVM, DSM and ICI consider, in particular, that the Commission should have stated reasons with respect to the obstacles listed in the plea raised before the Court of First Instance and referred to in paragraph 382 of the contested judgment, namely the absence of a fresh statement of objections and hearing of the parties, the use of documents discovered in the course of a separate investigation and evidence obtained in breach of the right not to give evidence against oneself, failure to grant access to the file in accordance with the case-law, the imposition of a fine based on an error of fact and the conclusion that the PVC I decision remained valid against Solvay and Norsk Hydro.

445 Moreover, they consider that the Court of First Instance incorrectly ruled, in paragraph 389 of the contested judgment, that the arguments relating to those alleged obstacles were essentially concerned only with challenging the validity of the Commission's assessment concerning those various points. According to LVM and DSM, the question of the validity of arguments is completely separate from that of the reasoning on which their rejection is based. The Commission therefore infringed its obligation to state reasons regardless of whether or not the arguments raised were ill-founded.

446 ICI argues that the Commission was under no obligation to take a new decision. Its decision to do so without serving a new statement of objections, and with neither a fresh hearing of the undertakings nor fresh consultation of the Advisory Committee, was not only unusual but wholly unprecedented. In those circumstances, the undertakings were entitled to an explanation concerning those matters. On that point, ICI relies on Case 73/74 Groupement des fabricants de papiers peints de Belgique and Others v Commission [1975] ECR 1491, paragraph 31 and Case C-350/88 Delacre and Others v Commission [1990] ECR I-395, paragraph 15, in accordance with which the Commission may not provide only a summary of reasons where it deviates from a consistent line of decisions.

449 In paragraph 387 of the contested judgment, the Court of First Instance rightly pointed out that, as the first recital in the preamble to the PVC II decision refers to the Treaty establishing the European Community', that decision impliedly but necessarily contains a formal reference to the task assigned to the Commission. It was thus entitled to hold that that reference alone constituted sufficient reasoning for the Commission's interest in finding an infringement and penalising the undertakings concerned. In that context, it rightly held that, since the Commission has a discretionary power in implementing the prerogatives conferred upon it by the Treaty in the area of competition law, it was not required to explain further the grounds which had led it to choose that course.

450 Having correctly stated the limits to the Commission's obligation to state reasons for the adoption of a new decision, the Court of First Instance correctly went on to hold, in paragraph 389 of the contested judgment, that the fact that the Commission gave no explanation for the matters listed in paragraph 382 of the contested judgment and restated in paragraph 444 of this judgment did not constitute insufficient reasoning for the PVC II decision, irrespective of its further observation that the arguments raised in relation to those matters were intended only to challenge the validity of the Commission's assessment.

451 Contrary to what ICI maintains, the Commission did not deviate from a consistent line of decisions in deciding to record the infringements found by it in a new decision following the annulment of the PVC I decision. It simply confirmed its initial decision to penalise those infringements, which did not run counter to Article 176 of the Treaty, since that provision required it only to take measures to comply with the Court's judgment of 15 June 1994, namely to remedy the sole illegality established in that judgment.

452 In any event, the Commission's obligation to state reasons with respect, not to the adoption of the decision, but to the content of the decision adopted is limited to the requirement that it must give a sufficient account of the nature of the infringement alleged against the addressee, of the reasons for the Commission's finding that the conditions of an infringement are fulfilled and of the obligations or penalties which it intends to impose on the undertaking concerned.

453 In this case, it should be observed that:

- no complaint has been raised as to that second limb of the obligation to state reasons;

- the matters in respect of which the appellants allege a failure to state reasons do not include that limb either, since the Commission is not obliged to foresee all issues which might be raised in a subsequent dispute and to respond thereto in advance in its decision;

- the issues relating to those matters may, if necessary, be the subject of a subsequent judicial review.

454 It follows that this plea must be rejected.

19. The plea raised by Montedison, Degussa and Enichem alleging a failure to have regard to the scope of the Commission's obligation to state the reasons for the method of calculating the fine

Arguments of the appellants

455 Montedison, Degussa and Enichem allege in essence that, in paragraphs 1172 to 1184 of the contested judgment, the Court of First Instance disregarded the scope of the Commission's obligation under Article 190 of the Treaty to state the reasons for the method of calculating the fines imposed on them.

456 Montedison argues that the Court of First Instance should have found that the statement of reasons for the PVC II decision was defective as regards the method of calculation used. In its view, the Commission is required to state in its decision the specific factors which it has taken into account in order to enable the undertakings better to assess, first, whether the Commission has made any error in determining the amount of each fine, and second, whether the amount of each individual fine is justified by the general criteria applied. In order to determine the amount of a fine, it is necessary to establish the gravity of the infringement by reference to numerous factors such as the particular circumstances of the case, its context and the dissuasive effect of fines (order of 25 March 1996 in Case C-137/95 P SPO and Others v Commission [1996] ECR I-1611, paragraph 54).

457 Degussa complains that the Court of First Instance rejected its plea alleging a lack of accuracy on the Commission's part in calculating the fine on the erroneous ground that indications regarding the calculation of the fine do not form part of the reasoning. Moreover, the Court of First Instance disregarded the terms of Article 190 of the Treaty by concluding, in paragraph 1183 of the contested judgment, that the Commission had done all that it needed to do by producing information as to the method of calculation during the judicial proceedings concerning the PVC I decision. Finally, the Court of First Instance contradicted itself in stating, in paragraph 1180 of the contested judgment, that it was desirable for undertakings to be able to determine the method of calculation of the fine without being obliged to bring court proceedings.

458 Enichem argues that, in rejecting its plea alleging insufficient reasoning, the Court of First Instance wrongly held, in paragraph 1179 of the contested judgment, that points 51 to 54 of the account of the facts set out in the PVC II decision contained a sufficient and relevant indication of the factors taken into account, including, in point 53, the respective importance [of the undertakings] in the PVC market'. The importance of a producer may equally well be inferred from its market share as from its turnover. It is therefore not possible to state categorically that the method of calculation of the fine was indicated in an unambiguous manner in the PVC II decision.

459 In that connection, Enichem points out that the Court of First Instance held, in particular in paragraph 1191 of the contested judgment, which relates to a different plea, that the apportionment of the total fine between the various undertakings was carried out on the basis of their respective market shares. Consequently, that decisive criterion should have been mentioned in the statement of reasons for the PVC II decision.

460 Like Degussa, Enichem observes that the Court of First Instance stated that it would be desirable for undertakings to be able to determine the method of calculation of the fine without their being obliged, in order to so, to bring court proceedings against the decision.

461 In its view, the Commission was in fact obliged to set out its calculations in the body of the decision in order to avoid the undertakings and the Community judicature being forced to guess how the general criteria indicated were translated into figures and to enable the parties to submit observations and to facilitate judicial review by the Community judicature.

Findings of the Court

462 In the context of the application of Article 85(1) of the Treaty, the scope of the obligation to state reasons for the method of calculating the fine, which is imposed on the Commission by Article 190 of the Treaty, must be determined in the light of the second subparagraph of Article 15(2) of Regulation No 17, which provides that regard shall be had both to the gravity and to the duration of the infringement'.

466 In the present case, the Court of First Instance observed, in paragraph 1174 of the contested judgment, that the Commission had set out, in points 51 to 54 of the account of the facts contained in the PVC II decision, the general and individual factors which it had taken into account in determining the fine.

467 In paragraphs 1175 and 1178 of the contested judgment, it found that the PVC II decision made reference to the following assessment criteria:

- the importance of the industrial product in question;

- the value of the sales relating thereto in western Europe;

- the number of undertakings involved;

- the level of participation of, and the role played by, each of the undertakings;

- the respective importance of the undertakings on the PVC market;

- the duration of the participation of each undertaking in the infringement.

468 In paragraph 1176 of the contested judgment, it also observed that the Commission had stated that it had taken into account as mitigating circumstances the fact that: