1. 

BPB Industries Pic (‘BPB’) and British Gypsum Ltd (‘BG’) have lodged an appeal against the judgment of the Court of First Instance of 1 April 1993 in the case which they had brought against the Commission, which was supported by the Kingdom of Spain and Iberian Trading (UK) Ltd (‘Iberian’).

2. 

That judgment was given in the following circumstances.

3. 

BPB is the largest producer of plasterboard in the world outside the United States of America. ( 1 ) It is present in many countries, including several Member States of the Community.

4. 

BPB, as a holding company, controls the plasterboard market in the United Kingdom and Ireland through two wholly-owned subsidiaries, BG and Gypsum Industries Ltd (‘GIL’). BG is the principal supplier in Great Britain and Northern Ireland, with a market share estimated at over 90%. GIL controls to a similar extent the market in Ireland.

5. 

Starting in 1982, plasterboard was imported from France by Lafarge UK Ltd (‘Lafarge’) and, starting in 1984, from Spain by Iberian.

6. 

In 1986, those two importers had a market share of 4% between them. ( 2 )

7. 

On 17 June 1986, Iberian lodged a complaint with the Commission, alleging that BPB had acted in a manner contrary to Article 86 of the EEC Treaty.

8. 

By decision of 5 December 1988, ( 3 ) the Commission ordered BPB and BG to pay-certain fines. The operative part of that decision reads as follows:

‘Article 1

Between July 1985 and August 1986 British Gypsum Ltd infringed Article 86 of the EEC Treaty by abusing its dominant position in the supply of plasterboard in Great Britain through a scheme of payments to builders' merchants who agreed to purchase plasterboard exclusively from British Gypsum Ltd.

Article 2

In July and August 1985 British Gypsum Ltd infringed Article 86 of the EEC Treaty by implementing a policy of favouring customers who were not trading in imported plasterboard in the provision of priority orders for the supply of building plasters at a time of extended delivery for that product which constituted an abuse of its dominant position in the supply of plasterboard in Great Britain.

Article 3

BPB Industries plc, through its subsidiary British Gypsum Ltd, infringed Article 86 of the EEC Treaty by abusing its dominant position in the supply of plasterboard in Ireland and Northern Ireland:

Article 4

The following fines are imposed:

...’. ( 4 )

9. 

The action brought by BPB and BG for the annulment of that decision was decided by the judgment of the Court of First Instance of 1 April 1993 in BPB Industries and British Gypsum v Commission, ( 5 ) in the operative part of which it:

...’

10. 

The appeal brought by BPB and BG against that judgment is limited to certain very precise points. Neither the existence of a dominant position nor the effect on trade between Member States are disputed. The appeal alleges four errors of law, ( 6 ) in that:

11. 

BPB and BG therefore ask the Court to:

12. 

I shall examine each of the four pleas in law in turn.

13.

Article 3 of the Decision states that BPB, through its subsidiary BG, abused its dominant position on the market in Northern Ireland by applying pressure on a consortium of importers so that they would renounce importing plasterboard into Northern Ireland and by allowing rebates in exchange for agreements not to handle any imported plasterboard.

14.

In upholding the decision to impose a fine on BPB for BG's practices in Northern Ireland, the Court of First Instance points to the specific characteristics of that market: the group's products are sold by BG which, to a limited extent, markets its own production and, for the main part, imports from Ireland products manufactured by GIL.

15.

It follows, in the view of the Court of First Instance that, ‘by contrast with the position in the British market, neither the dominant position nor the abuse thereof in the market of the whole island of Ireland can be specifically attributed to either of the subsidiaries of BPB, particularly when the entire BPB group profited from BG's practices in Northern Ireland, in that its subsidiary, GIL, increased deliveries of plasterboard to the other subsidiary, BG, to an extent which varied directly according to the effectiveness of the abuses committed by the latter in Northern Ireland’. ( 8 )

16.

In the island of Ireland, therefore, BPB operates through its two subsidiaries without either of these having, alone, a dominant position on that market. BPB is, in any event, the end beneficiary of the operation.

17.

The appellants argue that BPB cannot be held responsible for the infringement of Article 86 in Northern Ireland.

18.

In their view, the Court of First Instance was wrong in considering that it would have been superfluous to investigate the degree of influence of the parent company over its wholly-owned subsidiary and that control by the parent over the subsidiary could be assumed. BG defines its own commercial policy independently and there was no proof that BPB gave it any instructions.

19.

In addition, they claim that the Commission gave no reasons in the Decision itself regarding the attributability of the abuse. That failure to state reasons cannot be cured during the course of the proceedings before the Court. Moreover, when it decides to impose a fine on a parent company for an infringement committed by one of its subsidiaries, the Commission always states detailed reasons for that decision, especially since an attribution of the infringement to the parent company may lead to an increased fine if it is calculated according to turnover.

20.

With regard to that first plea in law, two questions must be considered:

21.

22.

It follows that a decision must be self-sufficient, especially when it is intended to be published, and that the reasons on which it is based may not be stated in written or oral explanations given by the Commission in the course of an action brought against the decision in question. ( 10 )

23.

That is particularly true where it must be determined whether a parent company or a subsidiary is responsible for an abuse of a dominant position. As the appellants have pointed out, ( 11 ) if the parent company is held liable for an infringement, the amount of the fine may be higher if it is calculated according to turnover.

24.

In the present case, I consider that the Decision itself states the reasons on which the attribution of responsibility for the abuse found in Article 3 is based. Admittedly, the judgment finds that certain facts were ‘confirmed by the clarifications given at the hearing’ ( 12 ) and that the Commission gave ‘details, in the course of the procedure, and in particular in reply to the questions put to it orally and in writing by the Court, of the information on which the reasoning adopted in the Decision is based.’ ( 13 ) Is it not the very purpose of both the written and the oral procedure to ‘confirm’ or to ‘clarify’ certain information? If a point is ‘clarified’, that clearly presupposes that it was already contained in the Decision and such is indeed the case here.

25.

In attributing the abuse found in Article 3 of the Decision to BPB, the Commission relied on the characteristics of the Irish market which it sets out carefully at point 86 of its Decision. It mentions BPB's market share and specifies that that share derives from the activities of its two subsidiaries GIL and BG. Nowhere is it stated that either of those subsidiaries would, considered separately, enjoy a dominant position on that market. Adopting the Commission's point of view, the Court of First Instance considers, quite unambiguously, that

‘by contrast with the position in the British market, neither the dominant position nor the abuse thereof in the market of the whole island of Ireland can be specifically attributed to either of the subsidiaries of BPB, particularly when the entire BPB group profited from BG's practices in Northern Ireland ...’ ( 14 )

26.

The first limb of the first plea in law, alleging an inadequate statement of reasons, should therefore be dismissed.

27.

‘The fact that a subsidiary has separate legal personality is not sufficient to exclude the possibility of imputing its conduct to the parent company.

Such may be the case in particular where the subsidiary, although having separate legal personality, does not decide independently upon its own conduct on the market, but carries out, in all material respects, the instructions given to it by the parent company.

Where a subsidiary does not enjoy real autonomy in determining its course of action in the market, the prohibitions set out in Article 85(1) may be considered inapplicable in the relationship between it and the parent company with which it forms one economic unit.’ ( 17 )

28.

In just that way, the Court of First Instance was able to infer from the structure of the relationship between the subsidiary BG and the parent company BPB and from the unified commercial policy which they followed that they constituted a single economic entity on the Irish market. ( 18 ) The Court also noted that it was apparent from the Commission's findings of fact that the Executive Committee of BPB was not uninvolved in the strategy adopted in Northern Ireland. ( 19 )

29.

I therefore conclude that the Court of First Instance was in a position to establish, by findings of fact against which no appeal can lie, that BG had followed instructions from its parent company. There is thus nothing to be gained from considering whether a parent company must be presumed to influence the conduct of a wholly-owned subsidiary, since specific findings of fact were made to establish that point in the present case. The last sentence of paragraph 149 of the judgment under appeal was therefore superfluous.

30.

Finally, in contrast to the market in Great Britain, where only the subsidiary BG was present, the dominant position on the market on the island of Ireland derives from the presence of two subsidiaries, without it being possible to attribute the dominant position and the abuse specifically to either of them.

31.

The abuse of a dominant position which the Commission found to have taken place on that market was therefore properly attributable to BPB.

32.

The Court of First Instance was able to establish that from 1985 BG implemented a marketing strategy involving the making of promotional payments to its clients in exchange for agreements to purchase plaster-board exclusively from BG ( 20 ) in order to ‘recover the market share lost by BG to its competitors.’ ( 21 )

33.

The Court of First Instance points out that in a normal competitive market situation such commercial cooperation is not prohibited in principle and that the appraisal of its effects depends on the characteristics of the market concerned. ( 22 )

34.

However, an exclusive contract concluded by an undertaking in a dominant position may constitute an abuse of that position within the meaning of Article 86. ( 23 ) That is undoubtedly the case when the aim of that conduct is to strengthen the dominant position.

35.

The Court of First Instance states that the concept of abuse is an objective one not requiring proof of any fault.

36.

In its view, such an abuse cannot be justified by the need to ensure regular supplies, by the prices charged by Iberian, by competitors' supply difficulties or by the fact that customers were free to discontinue their contractual relations with BG at any time.

37.

Finally, an exemption under Article 85(3), even if it can be established, does not prevent the application of Article 86.

38.

The appellants claim, first, that there has been no demonstration that BG exploited its dominant position in order to obtain advantages which it would not have succeeded in obtaining if there had been effective competition. In other words, the causal connection between the dominant position on the market and the conclusion of exclusive supply agreements by BG has not been established. ( 24 ) Those agreements were, moreover, concluded at the request of the merchants.

39.

Secondly, they argue, the agreements did not have the effect of excluding BG's competitors from the market. Unlike those examined in Hoffmann-La Roche v Commission, ( 25 ) they did not include any conditions as to their duration and did not bind customers for the future. Customers were free to terminate them at any time and would not have been dissuaded from purchasing from any competitors who might have offered the same advantages.

40.

BPB and BG also rely on Article 85(3) of the EEC Treaty. They claim that the promotional agreements met the conditions for exemption without there being any need for notification since they were entered into between parties established in the same State and did not concern imports or exports between Member States. They further consider that the Court of First Instance misconstrued the judgment in Tetra Pak v Commission ( 26 ) and that it is clear from Hoffmann-La Roche ( 27 ) that the fact that a loyalty rebate system constitutes an abuse does not mean that it may not be considered under Article 85(3).

41.

Finally, on the same point, the appellants consider that the Commission should have been prompted by the principle of legal certainty not to impose a fine on BG in respect of the promotional payments system, since, as the Court's case-law stood, BG was entitled to believe that it was not infringing Community law.

42.

I consider that the reasoning followed by the Court of First Instance in that regard should be upheld.

43.

It is clear from Delimitis ( 28 ) that an exclusive purchasing agreement (in that case a contract for the supply of beer) entered into in a market on which no supplier occupies a dominant position may be contrary to Article 85 of the EEC Treaty only if an economic analysis of the way in which that market operates, taking into account any cumulative effect from the existence of other exclusive agreements, shows that by reason of such contracts access to the market has become difficult or impossible for competitors.

44.

That is not the case for an exclusive purchasing agreement entered into by an undertaking in a dominant position.

45.

Such a contract operates, ex hypothesi, on a market where, as a consequence of the presence of an undertaking occupying a dominant position, the degree of competition has already been weakened. ( 29 )

46.

The exclusive supply agreement causes ‘additional interference’ with the structure of competition on that market. ( 30 )

47.

Consequently, ‘the concept of abuse ... in principle includes any obligation to obtain supplies exclusively from an undertalting in a dominant position which benefits that undertaking’. ( 31 )

48.

The Court of First Instance, as final judge of the facts, found that the agreements in the present case formed part of a plan aimed at eliminating competition. ( 32 )

49.

Admittedly, as this Court has pointed out in United Brands v Commission, ( 33 )

‘Although it is true ... that the fact that an undertaking is in a dominant position cannot disentitle it from protecting its own commercial interests if they are attacked, and that such an undertaking must be conceded the right to take such reasonable steps as it deems appropriate to protect its said interests, such behaviour cannot be countenanced if its actual purpose is to strengthen this dominant position and abuse it.’ ( 34 )

50.

Thus the Community law of competition in no way precludes a supplier from rewarding loyal customers or offering quantity rebates. Reserving more favourable treatment for traditional customers than for occasional purchasers does not constitute an abuse, as the Court observed in BP v Commission. ( 35 )

51.

In Hoffmann-La Roche, this Court demonstrated that a fidelity rebate could not be treated in the same way as a quantity rebate:

‘The fidelity rebate, unlike quantity rebates exclusively linked with the volume of purchases from the producer concerned, is designed through the grant of a financial advantage to prevent customers from obtaining their supplies from competing producers.

Furthermore the effect of fidelity rebates is to apply dissimilar conditions to equivalent transactions with other trading parties in that two purchasers pay a different price for the same quantity of the same product depending on whether they obtain their supplies exclusively from the undertaking in a dominant position or have several sources of supply.’ ( 36 )

52.

By making the promotional payments strictly dependent on the ‘loyalty’ of its customers, BG applied dissimilar conditions to equivalent transactions and different prices for the same quantities of products depending on whether or not its trading partners agreed not to purchase imported products. ( 37 ) The fact that the undertakings receiving those payments were under an obligation to spend them on publicity has no bearing on the matter. BG gave them an advantage which it did not give to their competitors which refused exclusive supply arrangements.

53.

By thus dissuading its customers from buying imported products, BG was clearly intent on eliminating its competitors present on the market.

54.

Can the fact that BG's contracts were entered into with, or even at the request of, powerful merchants change that conclusion?

55.

Such an argument has already been dealt with in Hoffmann-La Roche:

‘An undertalung which is in a dominant position on a market and ties purchasers — even if it does so at their request — by an obligation or promise ... to obtain all or most of their requirements exclusively from the said undertaking abuses its dominant position ...’ ( 38 )

to which the Court added:

‘The fact that Roche's contracting partner is itself a powerful undertaking and that the contract is clearly not the outcome of pressure brought to bear by Roche on its partner does not preclude the existence of an abuse of a dominant position, such an abuse consisting in this case of the additional interference, due to the obligation to obtain supplies exclusively from Roche, with the structure of competition in a market in which in consequence of the presence there of an undertaking occupying a dominant position the degree of competition has already been weakened.’ ( 39 )

56.

Admittedly, BG's contracting partners were not tied by long-term exclusive supply contracts, which would have been particularly detrimental to the interests of BG's competitors. ( 40 )

57.

Customers were entitled to terminate their exclusive supply agreements without notice and were thus free at any time to accept a more attractive offer from one of BG's competitors. Is it possible, in such circumstances, to speak of an abuse?

58.

Of the supply contracts examined in Hoffmann-La Roche, some included a firm undertaking to obtain supplies exclusively from Roche, while others only provided for loyalty rebates.

59.

The Court considered that the latter type involved ‘a strong incentive to purchasers to let Roche alone supply ... their requirements’. ( 41 )

60.

The Court added that

‘even if ... the purchaser's non-compliance with his undertaking to obtain his requirements exclusively from Roche did not make him liable to be sued for breach of contract but only caused him to lose the benefit of the promised rebates, such contracts nevertheless contain a sufficient incentive to reserve to Roche the sole right to supply the purchaser for them to be, for this reason alone, an abuse of a dominant position’. ( 42 )

61.

In the same way, the fact that BG's customers could readily withdraw from their contractual obligations at the cost of losing the loyalty rebates does not mean that such contracts entered into in such circumstances no longer constitute an abuse of a dominant position.

62.

I conclude that BG's conduct helped to keep other producers out of the market and protect BG's production from the hazards of competition.

63.

Could Article 85(3) be applied here?

64.

It is clear from Hoffmann-La Roche that exclusive supply agreements, whether or not they include a rebate arrangement, which can be held to constitute an abuse of a dominant position ‘could only possibly be admissible in the context of, and subject to the conditions laid down in, Article 85(3) of the Treaty’. ( 43 )

65.

The appellants are not justified in relying on Bilger v Jehle ( 44 ) in support of their submission that the promotional agreements in issue meet the conditions of Article 85(3) without there being any need for notification.

66.

It cannot be maintained that those agreements do not concern imports or exports between Member States within the meaning of Article 4(2)(1) of Regulation No 17 ( 45 ) when they formed, as the Court of First Instance found in its capacity as sole judge of the facts, part of a strategy of hindering imports. In that connection, it may be noted that the appellants no longer dispute before this Court the considerations in the judgment of the Court of First Instance relating to the effect on trade between Member States.

67.

Furthermore, in Tetra Pak, cited above, ( 46 ) the Court of First Instance demonstrated that the grant of an exemption under Article 85(3) cannot in any event confer a similar exemption from the prohibition set out in Article 86, since the two are independent provisions regulating ‘distinct situations by different rules’. A exemption under Article 85(3) does not operate as a ‘concurrent exemption from the prohibition of abuse of a dominant position’. ( 47 )

68.

Lastly, Article 85(3) makes it a condition for exemption that the agreement does not afford the ‘possibility of eliminating competition in respect of a substantial part of the products in question’. That cannot be the case where the very purpose of an agreement is to eliminate such competition and where it therefore constitutes a restriction to competition which is not indispensable.

69.

I cannot see how, when they entered upon the abuse found in Article 1 of the Decision, BG and BPB could have been entitled to believe that their conduct was permissible, when they were contravening principles of Community competition law based on the long-standing and consistent case-law of this Court, of which they should consequently have been aware. Their appeal to the principle of legal certainty is thus to no avail.

70.

According to the Commission's Decision, BG committed an abuse of a dominant position by adopting a general policy of extending delivery periods for plaster but offering priority deliveries of that product to ‘loyal’ plasterboard customers, that is to say customers who did not handle imported plasterboard. In the Commission's view, the damage caused by that practice was aggravated by the fact that plaster is a product for which it is difficult to change supply sources. The only purpose of the discriminatory criterion for selecting those merchants who were to benefit from priority deliveries was to encourage them to sell only B G plasterboard and to exclude imported plasterboard from the market.

71.

The Court of First Instance upheld the Commission's Decision on that point, holding that ‘a criterion, which results in the provision of equivalent services on unequal terms, is in itself anti-competitive by reason of the discriminatory purpose which it pursues and the exclusionary effect which may result from it’, ( 48 ) particularly on a market where the undertaking is in a dominant position and competition has thus ‘already been weakened’, ( 49 ) given that, on the market for plaster, customers are in a dependent position vis-à-vis their suppliers.

72.

The appellants submit that the Court of First Instance condemned an abuse on a market (the market for plaster) on which they were not dominant because it had effects on the market (the market for plasterboard) where they were dominant.

73.

However, they say, the Commission could not infer from practices on the market for plaster, on which there was no dominant position, an abuse of a dominant position on the quite separate market for plasterboard.

74.

They claim that such conduct on the market for plaster did not in any event penalize customers who could easily, the market being open to competition, switch from one supplier of plaster to another.

75.

The appellants therefore consider that the statement that the possibilities of substitution in that product are limited on account of its well-known characteristics and that purchasers of plaster are dependent on their suppliers has not been substantiated.

76.

The question of the priority deliveries of plaster calls for a close reading both of the Commission's Decision and of the judgment of the Court of First Instance.

77.

In neither is it stated at any point that BPB and BG were in a dominant position on the market for plaster and the reasoning of the Court of First Instance has satisfied me that that question was irrelevant to the resolution of the case.

78.

It is established — and such factual considerations (which have not been shown to be distorted) cannot be called into question before this Court — that

79.

As a result, the priority given to ‘loyal’ customers who refused to handle imported plasterboard could have a real dissuasive effect and lead BG's customers to renounce buying imported board in order to be able to obtain deliveries of plaster in good time.

80.

It can be seen that the criterion adopted as regards the priority deliveries was not an objective one: by penalizing those of its purchasers who were not ‘loyal’ in the plasterboard market, BG's policy was clearly to exclude imported plasterboard from the market in Great Britain by dissuading its trading partners from handling it, thus affecting the functioning of the market for plasterboard.

81.

The Court of First Instance thus correctly applied subparagraph (c) of the second paragraph of Article 86 of the EEC Treaty by demonstrating that ‘dissimilar conditions’ were applied to ‘equivalent transactions’.

82.

Were the Commission and the Court of First Instance entitled to take account of an abuse on a market other than that on which the dominant position was identified?

83.

That question is a familiar one for this Court. It has been answered in the affirmative whenever there is a connecting link between the two markets. I would refer here to the Court's judgments in Commercial Solvents, ( 52 )CBEM v CLT and IPB, ( 53 )AKZO 77, ( 54 )Merci Convenzionali Porto di Genova; ( 55 ) and GB-Inno-BM. ( 56 )

84.

AKZO, for example, adopted abusive behaviour on the market for flour additives in order to preserve its dominant position on the — separate — market for organic peroxides. ( 57 ) The Court accepted that such a set of circumstances could constitute an abuse of a dominant position. ( 58 )

85.

In the present case, the close links between the markets for plasterboard and for plaster enabled BG, through an abuse (in the form of extended delivery times) committed on the plaster market, to strengthen its dominant position on the market for plasterboard.

86.

Finally, I note that the Court of First Instance took the limited nature of the abuse (the extension of delivery times seems not to have exceeded one day) into account by not imposing a fine on that count.

87.

Referring to its previous judgments in Hercules Chemicals v Commission ( 59 ) and Cimenteries CBR v Commission, ( 60 ) the Court of First Instance pointed out that undertakings involved in a procedure are permitted to inspect the file on the case and that the Commission has an obligation to make available to them all documents, whether in their favour or otherwise, which it has obtained during the course of the investigation, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved. ( 61 ) The Court of First Instance noted that the Statement of Objections was accompanied by an annex containing a list summarizing all the 2095 documents which make up the Commission's file and indicating, for each document or group of documents, whether it was accessible to the applicants or not, and identified six categories of documents access to which was totally or partially refused: ( 62 )

88.

The Court of First Instance classed those six categories into two groups: internal documents, correspondence with Member States and published items on the one hand, a part of the complaint and information provided by third-party undertakings which had requested that it remain confidential on the other hand.

89.

With regard to the latter, the Court of First Instance decided that the Commission was right in acceding to the request for confidentiality and refusing to make the documents available on the ground that the undertaking against which the procedure was directed, whose dominant position was not contested, might ‘for that very reason, adopt retaliatory measures against a competing undertaking, a supplier or a customer, who has collaborated in the investigation carried out by the Commission’. ( 63 )

90.

BPB and BG base their argument that the rights of the defence were infringed on the following points:

91.

This last plea involves a key question of Community law: what is the scope of the right of an undertaking under investigation to have access to the Commission's file during the adversary stage (after issue of the Statement of Objections) of an administrative procedure under Article 85 or 86 of the Treaty?

92.

The appellants do not challenge the right of access to documents, whether incriminating or exculpatory, as stated by the Court of First Instance. They consider that some documents classed as confidential should have been made available to them.

93.

This Court cannot, it seems to me, give an answer on the last point without taking a stance on the whole of the reasoning of the Court of First Instance relating to the right of access to the file. That question also calls for an assessment of the position adopted by the Court of First Instance in Hercules Chemicals and, especially, Cimenteries CBR. ( 64 )

94.

A remark made by O. Due in an article published in 1987, ( 65 ) is still just as relevant today:

‘The case-law of the Court of Justice has not as yet provided a clear and satisfactory answer to the question of parties' access to the administrative file and it would be a delicate task for the Court to devise that answer.’ ( 66 )

95.

Unlike Council Regulation (EEC) No 4064/89 on the control of concentrations between undertakings, ( 67 ) neither Regulation No 17 nor Regulation No 99/63/EEC ( 68 ) provides for access to the complete file by undertakings investigated by the Commission for an infringement under Article 85 or 86 of the Treaty.

96.

As regards access to the file during the course of the administrative procedure, the case-law of this Court may be outlined in the following principles:

97.

It may thus be seen from this Court's case-law that the right of access to the file is inseparable from and dependent on the principle of the protection of the rights of the defence.

98.

It has been said that ‘that right of access is not an end in itself but a means of implementing the right to the protection of the rights of the defence in specific proceedings’. ( 81 )

99.

Is there now a general principle of Community law requiring the Commission to allow the undertaking under investigation access to all the documents in the file, whether or not they relate to an infringement, whether they are incriminating or exculpatory, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved?

100.

The judgment of the Court of First Instance in Hercules Chemicals ( 82 ) might suggest that there is such a principle when it states that:

‘... the Commission has an obligation to make available to the undertakings involved in Article 85(1) proceedings all documents, whether in their favour or otherwise, which it has obtained during the course of the investigation, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved.’ ( 83 )

101.

In my opinion, however, that judgment follows the previous case-law which it takes, indeed, as its basis when it notes that ‘there are no provisions requiring the Commission to divulge the contents of its files to the parties concerned’. ( 84 )

102.

The judgment observes that, in the absence of any mandatory provision of Community law and ‘exceeding the requirements laid down by the Court of Justice’, ( 85 ) the Commission itself has undertaken, in its Twelfth Report on Competition Policy, to disclose to undertakings the documents in the file concerning them, whether incriminating or exculpatory: ‘the Commission ... permits the undertakings involved in a procedure to inspect the file on the case’. ( 86 ) In other words, the Court of First Instance does not state that the procedure announced in the Twelfth Report was necessary in order to ensure that the rights of the defence were properly observed but rather points out that the Commission must honour its commitments. ( 87 )

103.

The legal basis of the position adopted by the Commission in its Twelfth Report is, however, insecure. As Lenz and Grill ( 88 ) have pointed out, an authority which imposes rules upon itself may at any moment change those rules. ( 89 )

104.

All this amounts to is that the obligation to make the whole file available is left to the discretion of the Commission, which has imposed that obligation upon itself for as long as it does not revise its position as adopted in the Twelfth Report.

105.

Even though such a revision might be incompatible with the principle of the protection of the legitimate expectations on which, in my view, undertakings would be entitled to rely as against the Commission, I do not think that an announcement made by the Commission in its reports on competition policy can provide a satisfactory legal basis for a right of access to the file.

106.

I seem to detect a development in the case-law of the Court of First Instance in Cimenteries CBR. ( 90 ) That judgment, unlike Hercules Chemicals, no longer refers to the principle set out in paragraph 25 of VBVB and VBBB and no longer bases its recognition of the right of undertakings involved in a procedure pursuant to Article 85(1) of the EEC Treaty to have access to the documents in the file, whether incriminating or exculpatory, solely on the Commission's self-imposed obligation ( 91 ) in the Twelfth Report on Competition Policy. Cimenteries CBR lays down the principle that:

‘Access to the file is ... one of the procedural safeguards intended to protect the rights of the defence and to ensure, in particular, that the right to be heard, provided for in Article 19(1) and (2) of Regulation No 17 and Article 2 of Regulation No 99/63 can be exercised effectively. It follows that the right of access to the file compiled by the Commission is justified by the need to ensure that the undertakings in question are able properly to defend themselves against the objections made against them in the Statement of Objections.’ ( 92 )

107.

Those words are repeated verbatim in the judgment under appeal. ( 93 )

108.

Should such a development be endorsed?

109.

Those unwilling to see such a step taken are at no loss for argument: ( 94 ) it is difficult to imagine the Commission concealing documents exculpating the undertaking under investigation and such documents will in most cases be in the undertaking's possession in any event. Some items in the file may have only a remote connection with the decision adopted.

110.

I consider that the position adopted by the Court of First Instance in Cimenteries CBR and BPB should be endorsed.

111.

Access to incriminating and exculpatory documents makes it possible to verify not merely that the Commission has not disregarded exculpating documents (which is improbable) but above all that it has assessed them correctly.

112.

To invest the right of access to the file at the adversary stage of a procedure under Article 85 or 86 of the Treaty with the authority of a fundamental principle of Community law is in fact merely to fall in step with a process which is already fully under way.

113.

In the first place, is it not paradoxical that such a right should be institutionalized, recognized and applied in the field of mergers where, the investigation being carried out prior to the operation, the question of confidentiality is particularly sensitive? Detailed explanations of future strategy and detailed figures on the present and future situation of an undertaking appear to me to be information just as deserving of protection as that produced during the course of a judicial review, subsequent to the event, of an agreement or a dominant position — such as the turnover of the undertaking in question four years previously.

114.

Secondly, is it possible to disregard the fact that the competition law of several Member States enshrines such a principle? ( 95 ) Here again, I may point to a paradox. Can the right of access to the file remain limited when the scope is European and the penalty incurred calculated in millions of ecus but be total for purely national cases of limited financial implication?

115.

Thirdly, I see even less reason not to elevate this rule to the status of a fundamental principle of Community law in that it is one which the Commission is quite willing to impose upon itself. In its Twenty-Third Report on Competition Policy of 5 May 1994, ( 96 ) the Commission took a firm step towards ensuring transparency:

‘With the Statement of Objections the Commission sends a copy of all the documents on which it is relying to establish the existence of an infringement. It also sends any documents that, on the basis of a careful examination of the file, appear to go against or contradict the Commission's case (known as “exculpatory” documents). If an undertaking thereafter makes a reasoned request that the Commission re-examine its file to determine whether it has any further documents which concern a specified matter that the undertaking considers useful to its defence, the Commission will do so, and forward any such documents’. ( 97 )

116.

I would therefore suggest that this Court should complete the step forward taken by the Court of First Instance in Cimenteries CBR and in BPB and confirm, beyond the actual terms of Regulation No 17 and as a corollary to the principle of the protection of the rights of the defence, the fundamental principle that an undertaking under investigation is entitled to have access to the whole file, save where the business secrets of other undertakings, the internal documents of the Commission ( 98 ) or other confidential information are involved.

117.

That fundamental principle of right of access to the file must be carefully circumscribed. ( 99 ) It presupposes that the Commission may rely on a confidentiality exception to enable it to combine effective action with protection of the rights of the defence and the rights of third parties. The basis for that exception is to be found in Article 20(2) of Regulation No 17 and Article 214 of the EC Treaty. The Commission has all the more incentive to make careful use of that exception in that a breach of confidentiality may give rise to actions for damages with particularly serious consequences. The judgment in Adams v Commission ( 100 ) is particularly significant in that regard.

118.

Use of that exception must be subject to review by the Community judicature, the only authority competent to judge whether a document classed as confidential by the Commission could indeed be so classed, when the validity of the Commission's final decision is raised before it. ( 101 ) I would agree with Professor Vandersanden when he says:

‘Because of its role as investigator and prosecutor, the Commission cannot be allowed the sole right to decide whether certain documents should be withheld on the grounds of their confidentiality, the business secrets they contain or their purely internal nature.’ ( 102 )

119.

Here, the undertaking under investigation cannot be required to provide either detailed arguments or a consistent body of evidence as to the effects on the decision adopted of a document which, ex hypothesi, has never been disclosed to it, of the contents of which it is unaware and of which it knows only the number and the title — a sort of probatio diabolica. If an individual were required to prove that had he had access to a document which was not disclosed he might have been able to adapt his arguments and perhaps influence the decision, a point which should not lie outside the scope of judicial review could not be examined by the courts: the Community judicature must be able to ascertain whether the right of access to the file, taken independently as a fundamental right, has been respected, ( 103 ) regardless of the effects which an infringement of that right might have had on the final decision.

120.

It must not be possible, however, for the undertaking concerned to challenge offhand the failure to disclose any document at all. The documents involved must be identified ( 104 ) and there must be some likelihood — limited though it may be — that they will assist the applicant and be ‘relevant to its right to be heard.’ ( 105 )

121.

I consider that when, in the context of an action before the Court of First Instance seeking the annulment of the Commission's final decision, the undertaking involved challenges the classification of a document as confidential or the Commission's refusal to disclose a document in the file, it is for that Court to require production of the document and to examine it. That cannot, however, be the case when the documents concerned are, by their very nature, not of a kind of which disclosure could be required.

122.

It is to be noted, finally, that disputes relating to access to the file may not give rise to dilatory manoeuvring. Decisions of the Commission refusing access to the file may be challenged only with the decision on the substance, once the administrative procedure has been completed. ( 106 )

123.

I therefore suggest that this Court should examine the fourth plea in law in this appeal in the light of the principles I have identified above.

124.

It is established that the Commission disclosed to the undertaking under investigation all the incriminating and exculpatory documents with the exception of six categories: (i) documents for purely internal Commission purposes; (ii) certain correspondence with third-party undertakings; (iii) certain correspondence with the Member States; (iv) certain published information and studies; (v) certain reports of verifications; and (vi) a reply to a request for information made under Article 11 of Regulation No 17. ( 107 )

125.

Obviously, BG does not complain that an incriminating document was not disclosed but rather that the documents which were not disclosed might have been helpful to its case. ( 108 )

126.

But it is manifest that the documents not disclosed fell within the categories of documents which the Commission may properly refuse to make available.

127.

Documents for internal Commission purposes, such as draft decisions or correspondence with Member States, do not constitute evidence.

128.

Published information and studies are, by definition, no longer confidential and BG could have had access to them.

129.

Furthermore, I cannot see how, if an abuse of a dominant position is postulated, correspondence between the Commission and other undertakings such as BG's competitors, suppliers or customers could constitute documents of which disclosure could be required.

130.

By its very nature, an undertaking in a dominant position is able to exert economic or commercial pressure on its competitors. As has been appositely observed, ‘... the need to preserve public order in the economic sphere ... means that outside undertakings which submit documents during the course of a Commission investigation and have reason to believe that that submission might lead to retaliatory measures being taken against them should be able to do so in the knowledge that their request for confidential treatment will be taken into consideration. Were that not so, it might be feared that such undertakings would consider that the safeguards available to them were inadequate and would refrain from submitting such documents to the Commission on their own initiative.’ ( 109 )

131.

The Court of First Instance was thus right, in my view, exceptionally in this case without examining the documents in question, to hold that the refusal to disclose them was justified by the fact that an undertaking which occupies a dominant position in the market may adopt retaliatory measures against a competing undertaking, a supplier or a customer which has collaborated in the investigation carried out by the Commission. ( 110 )

132.

As regards the reports of verifications, it is clear from the appellants' own pleadings that they concern inspections carried out in other undertakings. ( 111 ) Such documents obviously cannot be disclosed to an undertalcing under investigation. A document which might reveal that infringements unconnected with the case had been committed by third parties is of no use to the appellants. ( 112 )

133.

Finally, the Commission may, ‘where an undertaking makes a justified request to consult a document which is not accessible’, ( 113 ) make a non-confidential summary available. It was not open to the appellants to complain that the Commission did not draw up such summaries when it is not established that a request to that effect was either made or would have been justified.

134.

It is significant that the Court of First Instance stated that the applicants' allegations of an infringement of the rights of the defence were merely ‘uncertain and hypothetical’. ( 114 )

135.

I therefore recommend that the fourth plea be dismissed.

136.

In the alternative, BPB and BG seek a reduction of the fines imposed. ( 115 ) They do not, however, point to any new factor not taken into account by the Court of First Instance in its assessment of the validity of the Decision in that regard.

137.

The decision of the Court of First Instance as regards the amount of the fines is accurately reasoned and free from any error in law and must thus also be upheld.

138.

In conclusion, I propose that the Court should dismiss the appeal, confirm the fines imposed and order the appellants to pay all the costs, including those of the interveners.