«(Appeal – Competition – Cement market – Article 85(1) of the EC Treaty (now Article 81(1) EC) – Jurisdiction of the Court of First Instance – Rights of the defence – Access to the file – Single and continuous infringement – Liability for an infringement – Evidence of participation in the general agreement and measures of implementation – Fine – Determination of the amount)»

1.. Appeals – Pleas in law – Incorrect assessment of the facts – Inadmissible – Review by the Court of Justice of assessment of the evidence – Excluded unless the sense of the evidence has been distorted (Art. 225 EC; EC Statute of the Court of Justice, Art. 51)

2.. Appeals – Pleas in law – Plea alleging distortion of evidence – Plea reproducing verbatim the arguments put forward before the Court of First Instance – Inadmissible (Art. 225 EC; EC Statute of the Court of Justice, Art. 51; Rules of Procedure of the Court of Justice, Art. 112(1)(c))

3.. Competition – Community rules – Infringements – Liability – Criterion known as the economic continuity of the undertaking – Liability of a newly-formed company for an infringement by another company which has not ceased to exist – Admissible in view of the links between the capital of the two companies (EC Treaty, Art. 85(1) (now Art. 81(1) EC))

4.. Competition – Administrative procedure – Observance of the rights of the defence – Request for information addressed to an undertaking – Right to refuse to provide an answer which might involve an admission of infringement – Request addressed to an association of undertakings – Right to refuse to testify against its members – None (Council Regulation No 17, Art. 11)

5.. Competition – Administrative procedure – Statement of objections – Provisional nature – Dropping of objections which prove to be unfounded – Obligation for the Commission to inform those concerned by means of a supplementary statement of objections – None (Council Regulation No 17, Art. 19; Commission Regulation No 99/63, Art. 2)

6.. Competition – Administrative procedure – Inapplicability of Article 6 of the European Convention on Human Rights – Observance by the Commission of procedural guarantees – Adversarial principle – Scope – Limits – Right of the undertaking to question the authors of the incriminating documents – None

7.. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Scope – Refusal to communicate a document – Consequences – Need at the level of the burden of proof borne by the undertaking concerned to draw a distinction between incriminating documents and exculpatory documents

8.. Competition – Agreements, decisions and concerted practices – Participation by an undertaking in an anti-competitive initiative – Tacit approval by an undertaking without publicly distancing itself or reporting to the competent authorities sufficient to render it liable (EC Treaty, Art. 85(1) (now Art. 81(1) EC))

9.. Competition – Fines – Amount – Determination – Criteria – Gravity and duration of the infringement – Infringement by a number of undertakings – Relative gravity of the participation of each of them (Council Regulation No 17, Art. 15(2))

10.. Competition – Administrative procedure – Breach of the rights of the defence – Lack of proper access to the file – Access ensured during the judicial procedure – Remedy – None

11.. Appeals – Pleas in law – Plea challenging the assessment by the Court of First Instance of the existence of a breach of the rights of the defence during a procedure in application of the competition rules – Admissible (Art. 225 EC; EC Statute of the Court of Justice, Art. 51)

12.. Competition – Administrative procedure – Observance of the rights of the defence – Access to the file – Determination by the Commission alone of the documents of use to the defence – Not permissible – Exclusion from the case-file of the documents with no objective connection to the allegations in the statement of objections – Permissible

13.. Competition – Agreements, decisions and concerted practices – Prohibition – Infringements – Agreements and concerted practices capable of being approached as constituting a single infringement – Imputation of liability to an undertaking owing to its participation in the infringement considered as a whole notwithstanding its limited role – Permissible (EC Treaty, Art. 85(1) (now Art. 81(1) EC))

14.. Competition – Administrative procedure – Commission decision finding an infringement adopted after the decision of a national competition authority concerning the same undertaking – No identity between the infringements giving rise to the two decisions – Breach of the principle ne bis in idem – None

15.. Appeal – Pleas in law – Insufficient reasoning – Recourse by the Court of First Instance to implicit reasoning – Permissible – Conditions (Art. 225 EC; EC Statute of the Court of Justice, Art. 51)

JUDGMENT OF THE COURT (Fifth Chamber) 7 January 2004 (1)

((Appeal – Competition – Cement market – Article 85(1) of the EC Treaty (now Article 81(1) EC) – Jurisdiction of the Court of First Instance – Rights of the defence – Access to the file – Single and continuous infringement – Liability for an infringement – Evidence of participation in the general agreement and measures of implementation – Fine – Determination of the amount))

In Joined Cases C-204/00 P, C-205/00 P, C-211/00 P, C-213/00 P, C-217/00 P and C-219/00 P,

appellants,

APPEAL against the judgment of the Court of First Instance of the European Communities in Joined Cases T-25/95, T-26/95, T-30/95 to T-32/95, T-34/95 to T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95, T-68/95 to T-71/95, T-87/95, T-88/95, T-103/95 and T-104/95

the other party to the proceedings being:

THE COURT (Fifth Chamber),,

composed of: P. Jann, acting for the President of the Fifth Chamber, D.A.O. Edward (Rapporteur) and A. La Pergola, Judges,

Advocate General: D. Ruiz-Jarabo Colomer,

having regard to the Report for the Hearing, after hearing oral argument from the parties at the hearing on 4 July 2002, when Aalborg Portland A/S was represented by K. Dyekjær-Hansen, Irish Cement Ltd by P. Sreenan SC, Ciments français SA by A. Winckler and by F. Brunet, avocat, Italcementi ─ Fabbriche Riunite Cemento SpA by M. Siragusa, C. Lanciani and F.M. Moretti, Buzzi Unicem SpA by C. Osti, Cementir ─ Cementerie del Tirreno SpA by G.M. Roberti and by G. Bellitti, avvocato, and the Commission, in Case C-204/00 P, by R. Lyal and H.P. Hartvig and, in the other cases, by R. Lyal, and also by N. Coutrelis (C-211/00 P) and by A. Dal Ferro (C-213/00 P, C-217/00 P C-219/00 P)

after hearing the Opinion of the Advocate General at the sitting on 11 February 2003,

gives the following

The Statement of Objections

The Cement Decision

The role of the Court in an appeal

The legal and factual context of the review of anti-competitive practices and agreements

The right of access to the file

Establishment of the liability of the undertakings

The criteria material to the setting of the fine

1. Pleas concerning the role of the Court of First Instance in the organisation of the procedure

Arguments of the parties

Findings of the Court

2. Pleas concerning the Court of First Instance's assessment of the usefulness of the documents in the defence of the undertakings concerned

Arguments of the parties

─ The objective link criterion

─ The criterion relating to the impact of the non-disclosure of documents

─ The relevance of direct documentary evidence

Findings of the Court

3. The various pleas relating to the application by the Court of First Instance to the facts of the present case of the criteria concerning the probative value of the documents that were not disclosed

Arguments of the parties

Findings of the Court

─ The evidence relating to the existence of the Cembureau Agreement

─ The evidence relating to the price information exchanges

─ The evidence relating to the meeting of 9 September 1986

─ The evidence relating to the agreements with Calcestruzzi

─ The evidence relating to the agreements between Italian cement producers

4. Pleas alleging breach of the rights of defence as regards the decision to drop the national objections

Arguments of Italcementi

Findings of the Court

5. The plea relating to the right to cross-examine the authors of the documents relied on by the Commission

Arguments of Irish Cement

Findings of the Court

6. The plea alleging breach of the right not to give self-incriminating evidence

Arguments of Buzzi Unicem

Findings of the Court

Arguments of the parties

─ The legal characterisation of the evidence as [direct] documentary evidence

─ The statement of Mr Kalogeropoulos

─ The Blue Circle memoranda

─ The admission by Cembureau

─ The letters convening the meeting of 14 January 1983

─ The Chairman's draft introductory statement for the meeting of 14 January 1983

─ The meetings of 19 March and 7 November 1984

─ Other exculpatory evidence

Findings of the Court

2. Pleas relating to alleged errors of law, flawed reasoning and distortion of evidence as regards the single and continuous nature of the Cembureau Agreement

Arguments of the parties

Findings of the Court

3. Pleas alleging errors of law, flawed reasoning and infringement of the rights of the defence as regards the exchanges of price information

Arguments of the parties

─ The anti-competitive object of the exchanges of price information

─ The error in the Italian version of the judgment under appeal

─ The alleged unequal treatment

─ The characterisation of the exchanges as an implementing measure

─ The duration of the exchanges

Findings of the Court

4. Pleas alleging errors of law, flawed reasoning, distortion of evidence and breach of the rights of the defence as regards the activities within the framework of the ETF and the agreements and practices intended to protect the Italian market

Arguments of the parties

─ Participation in the setting-up of the ETF

─ The characterisation of the setting-up of the ETF as a single agreement relating to the ETF and as a measure taken to implement the Cembureau Agreement

─ Duration of the infringement relating to the setting-up of the ETF

─ Participation in the infringement relating to the setting-up of the ETF

─ The characterisation of the agreements with Calcestruzzi as a single agreement relating to the ETF and as measures taken to implement the Cembureau Agreement

─ The alleged error in the legal analysis of the unlawful nature of the agreements with Calcestruzzi

─ The plea relating to the principle ne bis in idem

─ The alleged distortion of the evidence

─ The duration of the infringement referred to in Article 4(3)(b) of the Cement Decision

Findings of the Court

Arguments of the parties

Findings of the Court

1. The determination of the fines in the Cement Decision

2. Pleas relating to the criteria for setting the fines and also to the principles of equality and proportionality

Arguments of the parties

Findings of the Court

3. The part of Cementir's sixth plea concerning the calculation of turnover

Arguments of Cementir

Findings of the Court

4. The second plea of Ciments français, concerning its Belgian subsidiary

Arguments of the parties

Findings of the Court

5. Other pleas

On those grounds,

THE COURT (Fifth Chamber),

hereby:

Jann

Edward

La Pergola

Delivered in open court in Luxembourg on 7 January 2004.

R. Grass

V. Skouris

Registrar

President