OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 14 April 2011 (1)

Case C‑110/10 P

Solvay SA

v

European Commission

(Appeal – Competition – Agreements, decisions and concerted practices (Article 81 EC) – Rights of the defence – Access to the file – Loss of documents in the administrative procedure – Right to a hearing – Right to have a matter adjudicated upon within a reasonable time – Excessive length of the proceedings – European market for soda ash)

Table of contents

I –  Introduction

II –  Background to the dispute

III –  Procedure before the Court of Justice

IV –  Claim that the judgment under appeal should be set aside

A – Rights of the defence (second and third pleas in law)

1. Right of access to the file (second plea in law)

a) Admissibility of the second plea in law

b) b) Merits of the second plea in law

2. Right to a hearing (third plea in law)

a) First part of the third plea in law

b) b) Second part of the third plea in law

c) c) Interim conclusion

B – Right to have a matter adjudicated upon within a reasonable time (first plea in law)

1. Requirements attaching to an assessment of the length of the proceedings (first and second parts of the first plea in law)

a) The preliminary question of whether Solvay’s complaints are ineffective

b) b) Need for an overall assessment of the length of the proceedings (first part of the first plea in law)

c) c) Alleged failure to state reasons (second part of the first plea in law)

2. 2. Legal consequences of excessively long proceedings (third to fifth parts of the first plea in law)

a) Requirement that the rights of the defence must be infringed (third part of the first plea in law)

b) b) Impact of the length of the proceedings on Solvay’s ability to defend itself in this case (fourth part of the first plea in law)

i) Alleged failure to state reasons

ii) Alleged error of substantive law

iii) Some additional complaints

iv) Interim conclusion

c) c) Alleged waiving by Solvay of a reduction of the fine (fifth part of the first plea in law)

3. 3. Interim conclusion

C – Setting-aside of the judgment under appeal

D – Decision on the action at first instance

1. Right of access to the file

2. Right to a hearing

3. Right to have a matter adjudicated upon within a reasonable time

4. Interim conclusion

V –  Application for a reduction of the fine

A – Preliminary remark

B – Reduction of the fine

1. Excessive length of the administrative and judicial proceedings

2. Extent of the reduction of the fine

VI –  Costs

VII –  Conclusion

I –  Introduction

1.        This is the second time that the Court has had to deal with the Solvay/CFK case in its appellate jurisdiction. (2)

2.        This case is closely connected with the concurrently pending Case C‑109/10 P Solvay v Commission. Both trace their beginnings back to events on the European soda ash market in the 1980s which led to antitrust proceedings being brought by the European Commission in 1989/90. (3)

3.        However, the background to the present dispute is not abuse of a dominant position but a cartel agreement which, according to the European Commission’s findings in the period from 1987 to 1990, resulted in the market being shared between the Belgian undertaking Solvay (4) and the German undertaking CFK. (5) Accordingly, the Commission made two attempts (in 1990 and 2000) to impose a fine on Solvay, against which Solvay has so far managed to defend itself before the courts.

4.        The dispute between the parties to the proceedings now centres essentially on two points of law which are of fundamental significance, one of which concerns the right of access to the file – in particular, the consequences of the disappearance of some of the documents in the file – and the other the principle that proceedings must take place within a reasonable time.

5.        In parallel to the present appeal proceedings, Solvay has also raised the complaint as to the excessive length of the proceedings in an application to the European Court of Human Rights (‘ECtHR’) which is directed against all 27 Member States of the European Union and is based on an alleged infringement of Article 6(1) of the ECHR. (6) (7)

II –  Background to the dispute

6.        As the General Court has established, (8) in April 1989, the European Commission carried out unannounced searches (investigations), provided for in Article 14 of Regulation No 17, (9) at the premises of a number of undertakings operating in the soda ash market, (10) including the Belgian undertaking Solvay. (11) It subsequently obtained additional information from the undertakings concerned.

7.        Following the conclusion of its inquiries, the Commission accused Solvay, on the one hand, of participating in cartels and, on the other hand, of abusing its dominant position on the soda ash market.

8.        The present proceedings are concerned only with one of the cartels brought to light by the Commission. (12) According to the Commission’s findings, Solvay and CFK concluded an agreement under which the two undertakings shared the market in soda ash ‘from about 1987 until at least the end of 1990’. Solvay guaranteed to CFK a minimum annual sales tonnage of soda ash in Germany calculated by reference to CFK’s achieved sales in 1986, and compensated CFK for any shortfall by purchasing from it the tonnages required to bring its sales to the guaranteed minimum. (13)

9.        For their participation in that cartel, in 1990, in an initial decision pursuant to Article 85 of the EEC Treaty in conjunction with Regulation No 17 (Decision 91/298/EEC (14)), the Commission imposed fines on both undertakings, Solvay being required to pay the equivalent of EUR 3 million and CFK the equivalent of EUR 1 million. (15) However, as that decision was vitiated by a procedural defect relating to its authentication, it had to be annulled. (16) Thereafter, in 2000, the Commission, without taking any further procedural steps (17) – in particular, without hearing Solvay again – adopted a second decision, this time on the basis of Article 81 EC in conjunction with Regulation No 17, in which it again imposed on Solvay (18) a fine in the same amount (Decision 2003/5/EC). (19) The latter decision constitutes the starting point for these judicial proceedings.

10.      At first instance, Solvay had only partial success with its action for annulment against Decision 2003/5. It is true that, by judgment of 17 December 2009, the General Court reduced the amount of the fine by 25% to EUR 2.25 million. However, it dismissed the remainder of Solvay’s action as unfounded. (20) By the present appeal, Solvay (21) is now contesting that judgment at first instance, which took no less than eight years and nine months to deliver.

11.      Chronologically, the most important stages in the dispute so far may be summarised as follows:

–        Administrative proceedings up to the adoption of the first decision imposing a fine

April 1989:          Investigations by the Commission

March 1990:          Notification of the statement of objections

December 1990: Commission Decision 91/298 imposing a fine

–        Judicial proceedings relating to the annulment of the first decision imposing a fine

May 1991: Action for annulment brought by Solvay before the General Court (T‑31/91)

June 1995:          Annulment of Decision 91/298

August 1995:          Appeal by the Commission (C‑287/95 P)

April 2000:          Dismissal of the appeal

–        Administrative proceedings up to the adoption of the second decision imposing a fine

December 2000: Commission Decision 2003/5 imposing a fine

–        Judicial proceedings since the adoption of the second decision imposing a fine

March 2001: Action for annulment brought by Solvay before the General Court (T‑58/01)

December 2009:  Judgment of the General Court under appeal (T‑58/01)

March 2010:        Present appeal by Solvay (C‑110/10 P)

III –  Procedure before the Court of Justice

12.      In the present appeal, Solvay claims that the Court should:

–        set aside the judgment under appeal of 17 December 2009;

–        re-examine the action in respect of the points raised and annul the Commission decision of 13 December 2000, in its entirety or in part, in accordance with the pleas submitted;

–        cancel the fine of EUR 2.25 million or, failing that, reduce that fine by a very substantial amount in order to compensate the appellant for the serious damage it has suffered on account of the extraordinary length of the proceedings;

–        order the Commission to pay the costs of the appeal proceedings and the costs of the proceedings before the General Court.

13.      The Commission, for its part, contends that the Court should:

–        dismiss the appeal; and

–        order the appellant to bear the costs.

14.      The appeal was examined before the Court of Justice by way of the presentation, first, of written pleadings and then, on 18 January 2011, oral argument. The hearing related to both Case C‑109/10 P and Case C‑110/10 P.

IV –  Claim that the judgment under appeal should be set aside

15.      In its principal claim, Solvay seeks to have the judgment under appeal set aside on the basis of three pleas in law. I shall examine those pleas in law in a different order: the procedural issues relating to access to the file and the right to be heard will be discussed first (see Section A below), and those relating to the right to have a matter adjudicated upon within a reasonable time will be addressed at the end of the legal assessment (see Section B below).

16.      Although the old regulation on antitrust proceedings, in the version of Regulation No 17, was applicable to this case, the points of law raised are no less relevant now that the law on antitrust proceedings has been modernised by Regulation (EC) No 1/2003. (22)

17.      Unlike in Case C‑109/10 P, (23) the present case raises no issues of substantive law in connection with the application of Articles 81 EC and 82 EC (now Articles 101 TFEU and 102 TFEU).

A –    Rights of the defence (second and third pleas in law)

18.      By its second and third pleas in law, Solvay complains in essence that there has been an infringement of its rights of defence.

19.      In all proceedings which may lead to the imposition of penalties, in particular fines or penalty payments, protection of the rights of the defence is a fundamental principle of European Union (‘EU’) law which has been repeatedly affirmed in the case-law of the Court of Justice. (24) It has also since been codified in Article 41(2)(a) and Article 48(2) of the Charter of Fundamental Rights. (25)

20.      The complaints raised by Solvay under its second and third pleas in law are of fundamental importance and give the Court of Justice an opportunity to clarify its case-law on the rights of the defence during the administrative procedure in an antitrust case.

21.      The procedural background to these pleas in law is as follows:

–        Before it adopted its first decision imposing a fine in this case, in 1990 (Decision 91/298), the Commission gave Solvay the opportunity to submit observations on its statement of objections. (26) However, Solvay was not given proper access to the file; it was merely provided with copies of the inculpatory documents on which the Commission based its objections at that time. (27) This was in order to ‘simplify the procedure’. (28)

–        In 2000, that is to say before the second decision imposing a fine at issue here was adopted (Decision 2003/5), Solvay was not given a further hearing; (29) nor was it allowed access to the file. (30)

–        Not until the second set of proceedings before the General Court (T‑58/01) did the Commission submit some of the documents from the administrative procedure, which the General Court had repeatedly asked it to do by way of measures of organisation of procedure. (31) Solvay was able to consult numerous documents to which it had not previously had access in the Court Registry. The undertaking was also given the opportunity to submit to the General Court its observations on the usefulness of those documents for its defence. (32)

–        The Commission was forced to concede before the General Court that it could no longer find the remaining documents – more specifically, five binders. (33) The Commission could not even submit an enumerative list of the missing documents to the Court. (34)

22.      In the light of the foregoing, Solvay claims, on the one hand, that there has been an infringement of its right of access to the file (second plea in law; see in this regard Section 1 below) and, on the other hand, that there has been an infringement of its right to be heard (third plea in law; see in this regard Section 2 below).

1.      Right of access to the file (second plea in law)

23.      A corollary of the principle of protection of the rights of the defence, the right of access to the file means that the Commission must give the undertaking concerned the opportunity to examine all the documents in the investigation file which may be relevant for its defence. Those documents include both incriminating and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved. (35)

24.      It is common ground that, in the administrative procedure, Solvay was made aware only of those documents in the file which the Commission used against that undertaking in the contested decision. Numerous other documents from the file which Solvay would also have been entitled to inspect by virtue of its rights of defence were withheld from it. The Commission thus infringed a fundamental rule of procedure, (36) which is a corollary of the right to good administration. (37) Such a procedural infringement cannot be remedied after the decision has been adopted, in particular not by submitting individual documents during subsequent judicial proceedings. (38)

25.      At the present stage, the parties to the proceedings are concerned only with the question whether the General Court should have annulled the contested decision in the light of the aforementioned procedural error committed by the Commission. It is settled case-law that procedural defects in connection with access to the file in the course of the administrative procedure cause the Commission’s decision to be annulled if the rights of defence of the undertaking concerned have been infringed. (39)

26.      Unlike in Case C‑109/10 P, this case is concerned only with a possible infringement of the rights of the defence in relation to the missing parts of the file. (40)

27.      Solvay, unlike the Commission and the General Court, considers that its rights of defence have been infringed and puts forward numerous arguments to support that view. In so doing, the appellant relies in essence on the general legal principles, recognised in EU law, of respect for the rights of the defence, presumption of innocence and allocation of the burden of proof. In addition, Solvay alleges infringement of the obligation to state reasons under Article 36 in conjunction with the first paragraph of Article 53 of the Statute of the Court of Justice as well as infringements of the second paragraph of Article 47, Article 48 and Article 52(3) of the Charter of Fundamental Rights, Article 6 of the ECHR and Article 6(1) TEU.

28.      However, Solvay puts forward detailed submissions only in respect of the rights of the defence, as well as, incidentally, in connection with the presumption of innocence. Its specific references to the Charter of Fundamental Rights, to Article 6 of the ECHR and to Article 6(1) TEU raise no new points and do not therefore require detailed discussion. With regard to Article 6(1) TEU, it is sufficient to point out that that provision itself does not contain any guarantees in relation to fundamental rights. Article 6 of the ECHR is not directly applicable to the EU institutions before the EU’s accession to the ECHR, (41) but is to be taken into consideration in the interpretation and application of the general legal principles and fundamental rights of EU law which have been relied on. (42)

a)      Admissibility of the second plea in law

29.      The Commission disputes the admissibility of large parts of the second plea in law. It contends that the evaluation of the usefulness of specific documents to an undertaking’s defence forms part of the assessment of the facts and evidence, which is the responsibility of the General Court alone and cannot in principle be reviewed on appeal.

30.      I am not convinced by that approach. In this case, the Court of Justice is not asked to substitute its own assessment of individual documents from the file for that of the General Court. (43) Rather, it is asked to examine whether the General Court applied the correct criteria and standards in its assessment of the facts and evidence. This is a question of law amenable to review by the Court of Justice in its appellate jurisdiction. (44)

b)      b) Merits of the second plea in law

31.      The second plea in law is essentially directed against paragraphs 257 to 264 of the judgment under appeal, in which the General Court examines the question whether the absence of five binders gave rise to an infringement of Solvay’s rights of defence (45) and answers it in the negative. (46)

32.      The appellant directs various criticisms against the part of the judgment in question and these form the subject-matter of the five parts of this second plea in law. However, they overlap in many respects. In essence, they all raise the same question: was the General Court entitled to rule out the possibility that the missing documents might have been useful for Solvay’s defence? (47)

33.      The starting point for these considerations should be that an undertaking which has been unlawfully refused access to the file during the administrative procedure has to demonstrate before the General Court only that it would have been able to use the documents in question in its defence. (48) It is sufficient for the undertaking to show that there is even a small chance that the documents which were not accessible in the administrative procedure could have been useful for its defence. (49)

34.      It is true that, in this case, the General Court’s task of examining the usefulness of those elements of the file not inspected by Solvay was made more difficult by the fact that the documents concerned could not be found.

35.      It would of course be inappropriate always to assume that parts of a file which have gone missing could have been useful to the defence of the undertaking concerned. Where, for example, it can reasonably be concluded, on the basis of a detailed index, that the parts of the file in question contained only documents which would not have been accessible in any event (this may be assumed to be true in particular of draft decisions and internal memoranda of the Commission, but may also apply to other confidential documents), (50) an infringement of the rights of the defence may be ruled out from the outset.

36.      In this case, however, it was not possible even to begin to reassemble the content of the missing parts of the file. (51) As far as I can tell, the question of who should bear the responsibility for that fact has not yet been clarified in case-law, the judgments delivered to date having concerned documents from the administrative procedure the content of which was established and amenable to review by the Court. (52)

37.      In principle, it is for the undertaking concerned to present the facts and adduce the evidence to prove that it could have used in its defence parts of the file to which it was unlawfully denied access during the administrative procedure. (53) However, this is feasible only in so far as the undertaking can at least give a useful indication of the authors and nature and content of the documents which have been withheld from it.

38.      Responsibility for the fact that parts of the file cannot be found, on the other hand, lies with the Commission. For, in accordance with the principle of good administration, the Commission has an obligation to ensure the file’s proper management and safe storage. Proper management of the file includes not least the production of a meaningful index to be used for the purposes of granting access to the file at a later date.

39.      Where – as here – the content of the missing parts of the file cannot be reassembled with any certainty because no such index exists, there is only one conclusion to be drawn in respect of the rights of the defence: it cannot be ruled out that the undertaking concerned might have been able to use the missing documents in its defence.

40.      The judgment under appeal none the less assumes the exact opposite. In the view of the General Court, there is no reason to presume that Solvay might have discovered in the missing ‘sub-files’ documents casting doubt on the Commission’s findings. (54)

41.      The General Court bases its view inter alia on the fact that Solvay did not dispute the existence of the cartel agreement which it had concluded with CFK in its application in the proceedings at first instance. (55) The assessment of the usefulness of the missing parts of the file for Solvay’s defence is therefore linked to its arguments against the Commission’s findings on the existence of an anti-competitive agreement. (56) In other words, the General Court seems to assume that anyone already playing with a bad hand would not have found any trump cards in the remaining parts of the file.

42.      That approach is erroneous in law. It goes without saying that the question whether the rights of the defence have been infringed must be examined by reference to the specific circumstances of each particular case. Such an examination must, however, be conducted in the light of what the Commission is accusing the undertaking of having done, that is to say in the light of the complaints which it raises as against the undertaking. (57) After all, the undertaking has to defend itself against those ‘objections’ from the Commission. It is on the other hand entirely irrelevant what substantive objections the undertaking has previously raised to the contested decision and whether those complaints are successful.

43.      The General Court wrongly makes the usefulness of the missing documents to Solvay dependent on whether Solvay has contested certain findings made by the Commission – that is to say those concerning the existence of the cartel agreement with CFK – and whether it would have been able to put forward certain arguments even without full access to the file. (58)

44.      The correct approach would have been to ask only whether the missing parts of the file might have contained information which would have enabled Solvay to provide better corroboration for the arguments it had previously directed against the contested decision or to put forward new arguments altogether, (59) be it on the existence, meaning and purpose or the effects of its agreement with CFK.

45.      It should be recalled in this connection that Solvay made an attempt (unsuccessful in the absence of any evidence to support it) to justify its contested agreement with CFK by reference to plans for a possible merger of the two undertakings. (60) During the administrative procedure, Solvay had thus argued that, in 1988, its German subsidiary, DSW, (61) sought to maintain CFK as a going concern during negotiations on the acquisition of CFK’s business; to that end, it sought to enable CFK, temporarily, to sell a certain minimum tonnage on the German market in order to guarantee its survival and maintain it as an attractive target for acquisition. (62)

46.      Moreover, observations submitted by CFK might have provided useful information to corroborate the contacts between Solvay and CFK. It cannot be ruled out that the missing documents contained such observations. (63) They might at least have been relevant to the assessment of the gravity and duration of the infringement and to the determination of the level of the fine imposed by the Commission. (64)

47.      Contrary to the view which the General Court appears to take, it was not incumbent upon Solvay to show to precisely what extent the missing parts of the file might contain evidence in its favour. It was impossible to reassemble the content of those documents before the Court and nobody can be asked to do the impossible. Nor was it appropriate to expect Solvay to bear the consequences of that impossibility, since responsibility for the disappearance of the documents in question lay with the Commission. (65)

48.      In summary, therefore, the General Court applied the wrong criteria when examining whether the missing documents from the file might be useful to Solvay’s defence. It misconstrued the requirements resulting from the rights of the defence in this regard. The second plea in law must therefore be upheld.

49.      The further allegation made by Solvay in this connection, of infringement of the presumption of innocence, does not in itself raise any points additional to those covered by the questions, already discussed, relating to the obligation to present the facts and the burden of proof in the context of the rights of the defence. It is therefore unnecessary to examine it separately.

2.      Right to a hearing (third plea in law)

50.      Solvay’s third plea in law is directed against paragraphs 165 to 174 of the judgment under appeal, in which the General Court concludes that the Commission was not required to hear the undertaking again before adopting the contested decision. (66) In Solvay’s view, however, a hearing should have taken place during the administrative procedure in 2000 because the first decision imposing a fine (Decision 91/298) – which was annulled by the General Court – had not only been incorrectly authenticated but had also been adopted without the necessary access having been given to the file.

a)      First part of the third plea in law

51.      In the first part of the third plea in law, Solvay complains that there has been an infringement of the obligation to state reasons under Article 36 in conjunction with the first paragraph of Article 53 of the Statute of the Court of Justice. It submits that the judgment under appeal does not examine the question whether the procedural defects relating to access to the file which had vitiated the first administrative procedure necessitated a further hearing. The General Court, Solvay contends, does not therefore address a complaint which it raised in the proceedings at first instance.

52.      That argument must be rejected. The General Court did, albeit in only one sentence, examine the need for a new hearing on account of the previous procedural defects connected with access to the file. It referred by way of answer to that question to its findings concerning access to the file. (67) From the point of view of the General Court, this was the logical and consistent thing to do, since it assumed that the Commission had not infringed the rights of the defence by failing to grant access to the file. (68) In accordance with the thinking adopted in the judgment under appeal, there was therefore no need to hear Solvay again.

53.      Consequently, the General Court’s findings concerning the right to a hearing are sufficiently reasoned. Whether, from the point of view of their substance, they are also free from any error of law is the subject-matter of the second part of the third plea in law, to which I shall turn now.

b)      b) Second part of the third plea in law

54.      In the second part of the third plea in law, Solvay examines from a substantive point of view the question whether the procedural defects relating to access to the file which occurred in 1990 made it necessary later – before the second decision imposing a fine at issue here (Decision 2003/5) was adopted in 2000 – for the undertaking to be heard again.

55.      Solvay claims in essence that there has been an infringement of its right to a hearing and its rights of defence in general. The appellant also alleges infringements of Article 47(2), Article 48 and Article 52(3) of the Charter of Fundamental Rights, Article 6 of the ECHR and Article 6(1) TEU, as well as of the principle of good administration and Article 266 TFEU (formerly Article 233 EC). Common to all those complaints is the criticism that the General Court failed to take into account the need for the Commission to hear Solvay again.

56.      The right to a hearing is one of the rights of the defence which must be observed during the administrative procedure in an antitrust case. The right to a hearing requires that the undertaking under investigation must be afforded the opportunity, during the administrative procedure, to make known its views on the truth and relevance of the facts alleged and on the documents used by the Commission in support of its claim. (69) In secondary law, that principle was laid down in Article 19(1) of Regulation No 17 at the time when the contested decision was adopted. (70)

57.      In this case, it is common ground that Solvay was heard by the Commission, on the basis of a statement of objections, in 1990 – prior to the adoption of the first decision imposing a fine (Decision 91/298). The point at issue is simply whether the measures to be adopted by the Commission under Article 233 EC (now Article 266 TFEU) following the annulment of that first decision included a new hearing.

58.      Article 233 EC does not necessarily require the Commission, during the administrative procedure in an antitrust case under Regulation No 17, to start the entire process again. Rather, the Commission may resume the procedure from the point at which the EU Courts found there to have been a procedural error. In so far as the procedural steps taken before the procedural error were lawful, they do not need to be repeated.

59.      In PVC, in which an initial Commission decision was annulled because of a procedural defect arising at the final stage of adoption by the College of Commissioners, the Court of Justice allowed the Commission to adopt a second, essentially similar, decision without giving the undertaking concerned a new hearing. (71) The General Court relied on that case-law in the judgment under appeal in order to support the proposition that there was no need to grant Solvay a further hearing in this case either. (72)

60.      At first sight, the PVC case and this case do indeed appear to be similar. In this case, too, the first Commission decision imposing a fine (Decision 91/298) was annulled because of a procedural error at the end of the administrative procedure – more specifically, as regards authentication of the decision.

61.      On closer inspection, however, a crucial difference comes to light. Unlike in the PVC case, the administrative procedure in the present case was further vitiated by another serious defect which occurred well before the stage of the final adoption and authentication of the decision imposing a fine: the undertaking concerned, Solvay, was not granted sufficient access to the file to satisfy the legal requirements. (73)

62.      It is true that, in their judgments on the first decision imposing a fine (Decision 91/298), (74) the EU Courts did not examine the right of access to the file and the rights of the defence, but rather confined themselves exclusively to considering the issue of the decision’s authentication. However, it cannot be concluded from this that the EU Courts would have confirmed that the administrative procedure was conducted properly in relation to access to the file and the rights of the defence.

63.      On the contrary, in connection with Decision 91/297, which relates to the same antitrust administrative procedure as Decision 91/298, the General Court held that the rights of the defence had been infringed because the undertaking concerned had not been granted full access to the file. (75) Moreover, the Commission had established a clear practice in relation to access to the file since 1982. (76)

64.      The Commission might be forgiven for taking the view that the various judgments delivered by the General Court on 29 June 1995 did not send out a clear signal with respect to the objectives served by granting access to the file and the extent to which such access should be granted. (77) Certainly, by the time the second decision imposing a fine at issue here was adopted in 2000, however, any doubts in this regard had long since been dispelled.(78)

65.      This means that, in this case, following the annulment of the first decision imposing a fine, the Commission should have resumed the administrative procedure at the stage immediately after notification of the statement of objections. It should have granted Solvay full access to the file in accordance with the relevant legal requirements and should have heard the undertaking again on that basis.

66.      Moreover, the fact that the second decision imposing a fine at issue here (Decision 2003/5) was not based on any new objections does nothing to alter the Commission’s obligation to conduct a new hearing after granting access to the file. (79) It is true that Solvay had already had the opportunity in 1990 to submit its observations on all the objections forming the basis of the Commission’s first and second decisions imposing a fine. However, it had to do so on the basis of an extremely fragmentary knowledge of the file, as it had only been sent inculpatory documents. (80)

67.      The right to a hearing is not limited to a right to submit observations on all the Commission’s objections. Rather, the undertaking concerned must be afforded the opportunity to express its views in the knowledge of all legally accessible parts of the file. The rights of the defence in antitrust proceedings would otherwise be divested of much of their effectiveness.

68.      The opportunity to submit observations is of an entirely different value where the undertaking concerned has been given due access to the file beforehand. In particular, it is evident that that an undertaking which has been given access not only to inculpatory but also to exculpatory documents can defend itself against the Commission’s objections more effectively than an undertaking which has been shown only inculpatory material.

69.      The General Court therefore erred in law with respect to the right to a hearing in taking the view that the Commission did not need to grant Solvay a further hearing. The errors of law vitiating the judgment under appeal in relation to the right of access to the file are effectively being perpetuated here. (81)

70.      The principle of good administration also relied on by Solvay requires no further examination here, since the arguments based on that principle raise no points which have not already been covered by the arguments put forward in connection with the rights of the defence and the right to a hearing. Nor, as has already been explained, (82) is there any need to examine Article 6 ECHR and Article 6(1) TEU.

c)      c) Interim conclusion

71.      In summary, the second part of the third plea in law is well founded.

B –    Right to have a matter adjudicated upon within a reasonable time (first plea in law)

72.      By its first plea in law, which is directed against paragraphs 100 to 123 of the judgment under appeal, Solvay claims that there has been an infringement of its right to have its case adjudicated upon within a reasonable time. That fundamental right is recognised in the case-law of the Court of Justice as a general principle of EU law in the case of both administrative proceedings before the Commission and judicial proceedings before the EU Courts. (83) That principle has in the meantime also found its way into Article 41(1) and the second paragraph of Article 47 of the Charter of Fundamental Rights.

73.      Although the EU Courts have repeatedly been faced with the issue of what constitutes a reasonable time in competition proceedings, the points of law raised by Solvay seem to me to be of special importance. First, they concern a case in which the absolute length of the proceedings, taking into account all stages of the administrative and judicial procedures, was without any doubt particularly long. Secondly, the complaints in this case arise against the background of the entry into force of the Treaty of Lisbon on 1 December 2009, at which time the Charter of Fundamental Rights of the European Union became binding in law (Article 6(1) TEU).

74.      The first plea in law is divided into a total of five parts, which are concerned in part with an assessment of the length of the proceedings (see Section 1 below) and in part with the legal consequences of excessively long proceedings (see Section 2 below).

1.      Requirements attaching to an assessment of the length of the proceedings (first and second parts of the first plea in law)

75.      The legal requirements attaching to an assessment of the length of the proceedings form the subject-matter of the first two parts of the first plea in law.

a)      The preliminary question of whether Solvay’s complaints are ineffective

76.      Contrary to the view expressed by the Commission, Solvay’s complaints concerning the length of the proceedings are not ‘largely ineffective’. It is true that any setting-aside of the judgment under appeal presupposes a further step in the thought process – consideration of the sanctions for excessively long proceedings. None the less, an examination of the length of the proceedings per se is indispensable, (84) since, without a finding to the effect that the proceedings were excessively long, the right to have a matter adjudicated upon within a reasonable time cannot by definition be regarded as having been infringed. The criteria which the General Court applied when assessing the length of the proceedings cannot be sheltered from any legal review by the Court of Justice on appeal.

77.      Solvay’s complaints concerning the length of the proceedings would be ineffective, at most, if the appellant had raised them separately from the complaints concerning the legal consequences of excessively long proceedings. That was not the case here, however. Rather, the judgment under appeal is being challenged on both counts, the third to fifth parts of the first plea in law being specifically concerned with the legal consequences.

78.      Accordingly, the objection of ineffectiveness raised by the Commission must be dismissed.

b)      b) Need for an overall assessment of the length of the proceedings (first part of the first plea in law)

79.      In the first part of the first plea in law, Solvay complains that, in assessing the length of the proceedings, the General Court confined itself to considering the individual stages of the administrative and judicial procedures in isolation, without assessing as a whole the proceedings which had been ongoing since the investigations of April 1989.

80.      The reasonableness of the length of the proceedings 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. (85) The Court of Justice has held in this regard that the list of relevant criteria is not exhaustive. (86)

81.      There is no doubt that a proper examination of the length of the proceedings requires the General Court to assess each individual stage of the proceedings separately. (87) If any stage of the proceedings was excessively long, this fact alone justifies the finding that there has been an infringement of the right to have a matter adjudicated upon within a reasonable time. (88)

82.      However, a proper examination of the length of the proceedings includes not only the aforementioned ‘piecemeal’ assessment but also an overall assessment of the length of the administrative proceedings and any judicial proceedings. (89)

83.      It is not possible to raise as against the requirement of an overall assessment the objection that administrative and judicial proceedings are different in nature and that the criteria to be satisfied by the administrative or judicial authority are laid down in different parts of the Charter of Fundamental Rights. From the point of view of the undertaking concerned, all that matters is when its ‘affair’ is finally adjudicated upon by an impartial authority. Article 41(1) and the second paragraph of Article 47 of the Charter of Fundamental Rights simply contain two expressions of one and the same principle of procedural law, namely that a person is entitled to expect a decision within a reasonable time.

84.      It is true that, as a rule, the right to have a matter adjudicated upon within a reasonable time cannot be assumed to have been infringed where no individual stage of the administrative and judicial proceedings was, in itself, excessively long. However, the more stages there are in the proceedings as a whole – consisting in one or more administrative and/or judicial procedures – the more important an assessment of their overall length becomes.

85.      In this case, the first part of the administrative proceedings (from 1989 to 1990) and the first set of judicial proceedings (from 1991 to 2000) were followed by the – albeit rudimentary – second part of the administrative proceedings (2000) and the second set of judicial proceedings (since March 2001). (90) The overall length of all these stages of the proceedings already amounted to more than 20 years at the time when the judgment under appeal was delivered; as many as 22 years have elapsed to date. Hardly any other proceedings under European competition law have lasted so long. (91)

86.      In those circumstances, the length of the proceedings could not be properly assessed without including the total length of the administrative and judicial proceedings up to the delivery of the judgment under appeal. As the General Court failed to carry out such an overall assessment, the judgment under appeal is vitiated by an error of law. The first part of the first plea in law is therefore well founded.

c)      c) Alleged failure to state reasons (second part of the first plea in law)

87.      Solvay also complains that there has been a failure to state reasons (Article 36 in conjunction with the first paragraph of Article 53 of the Statute of the Court of Justice) because the General Court did not include its own stage of the proceedings in its assessment of the length of the proceedings.

88.      Indeed, the General Court does not say a word about the length of that stage of the proceedings which it itself conducted (proceedings in Case T‑58/01). It should be borne in mind, however, that the reasoning for a judgment at first instance may also be implicit, provided that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review. (92)

89.      In this case, the General Court assumed that the contested decision could be annulled not on the basis of the length of the proceedings per se but only on the basis of an infringement (caused by the length of the proceedings) of the rights of the defence. As the General Court took the view that the rights of the defence could not be assumed to have been infringed, it was legitimate for the judgment under appeal not to contain an express assessment of the arguments concerning the length of the proceedings which Solvay had put before the General Court. There is no failure to state reasons in this regard.

90.      In those circumstances, the second part of the first plea in law is unsuccessful.

2.      2. Legal consequences of excessively long proceedings (third to fifth parts of the first plea in law)

91.      In the third to fifth parts of the first plea in law, Solvay deals with the legal consequences of any failure to adjudicate within a reasonable time in the administrative and judicial proceedings.

a)      Requirement that the rights of the defence must be infringed (third part of the first plea in law)

92.      The third part of the first plea in law raises a fundamentally important point of law. The parties are in dispute as to whether an infringement of the fundamental right to have a matter adjudicated upon within a reasonable time, if there has been one, is in itself sufficient to warrant annulment of the contested decision or whether it must also be proved that the ability of the undertaking concerned to defend itself was adversely affected. (93)

93.      In the judgment under appeal, the General Court assumed that a Commission decision may be annulled on account of excessively long proceedings only where it is established that the undue delay has adversely affected the ability of the undertakings concerned to defend themselves. (94) That approach is in line with the consistent case-law developed by the Court of Justice according to which it needs to be assessed whether the length of the proceedings may have affected their outcome. (95)

94.      However, Solvay considers that case-law to be outdated and asks the Court of Justice to reconsider it in the light of the binding force of the Charter of Fundamental Rights since the entry into force of the Treaty of Lisbon.

95.      Of particular importance in this regard are the provisions of Article 52(3) of the Charter. The first sentence of Article 52(3) contains a homogeneity clause to the effect that fundamental rights contained in the Charter which correspond to rights guaranteed by the ECHR are to have the same meaning and scope as those laid down by the ECHR.

96.      It is true that the fundamental right under EU law to have a matter adjudicated upon within a reasonable time, in accordance with Article 41(1) and the second paragraph of Article 47 of the Charter of Fundamental Rights, is modelled on Article 6(1) of the ECHR. (96) Contrary to the view taken by Solvay, however, Article 6(1) of the ECHR as currently interpreted by the ECtHR does not require that a decision imposing a fine in antitrust proceedings must be annulled and the administrative procedure discontinued on the sole ground of a failure to adjudicate within a reasonable time.

97.      As the Commission has rightly pointed out, the ECHR generally allows its Contracting States a certain margin of discretion with respect to the ways and means of eliminating any infringements of fundamental rights. (97)

98.      The case-law of the ECtHR relating to Article 6(1) of the ECHR also shows that the annulment of all penalties under criminal law and the discontinuance of the criminal proceedings concerned represent only one possible means of redress within the meaning of Article 41 of the ECHR for infringement of a fundamental right through the excessive length of the proceedings. (98) There is no question in that case-law of there being any obligation on the part of the national authorities to annul penalties and discontinue proceedings. Rather, the ECtHR also expressly recognises the reduction of a sentence imposed as an appropriate means of affording redress for excessively long proceedings. (99) In a specific case of economic crime which involved serious fraud offences and was notable in that the proceedings lasted for 17 years, the ECtHR considered the finding of an undue delay in the proceedings and a reduction of the sentence to be sufficient. (100) In my view, such a solution can also be transposed to antitrust proceedings, which are not dissimilar to proceedings relating to economic offences.

99.      It must also be borne in mind, with respect to competition law, that the ECtHR itself does not appear to regard that area of law as a traditional category of criminal law; outside the ‘hard core’ of criminal law, the ECtHR assumes that the criminal law guarantees provided for in Article 6(1) of the ECHR will not necessarily apply with their full stringency. (101)

100. Thus, as things stand, it must be assumed that the requirement of homogeneity laid down in the first sentence of Article 52(3) of the Charter of Fundamental Rights does not necessarily oblige the EU Courts, in the context of European competition law, to deal with an infringement of the fundamental right to have a matter adjudicated upon within a reasonable time by annulling the contested decision.

101. Although it is possible, in accordance with the second sentence of Article 52(3) of the Charter of Fundamental Rights, for EU law to go beyond the standard set in the ECHR, there is no reason for this to happen in the present context of competition law.

102. Where a penalty is imposed for infringement of the fundamental right to have a matter adjudicated upon within a reasonable time, due consideration must be given to both the interests of the undertaking concerned and the general interest.

103. The interest of the undertaking concerned consists in securing the fullest possible measure of redress for the consequences of infringement of the fundamental right. (102) The general interest consists in ensuring the effective implementation of the competition rules in the European internal market, which form part of the fundamental provisions of the Treaties. (103) (104)

104. The annulment of a Commission decision imposing a fine in an antitrust case on the sole ground that there had been a failure to adjudicate within a reasonable time in the administrative or judicial proceedings would cancel not only the fine imposed but also the finding of infringement of the competition rules itself. Such a solution would be contrary to the general interest in the effective implementation of the competition rules and would go beyond the legitimate interest of the undertaking concerned in securing the fullest possible measure of redress for the infringement of the fundamental right which it had suffered.

105. The undertaking must not be allowed to reopen the question of the existence of an infringement on the sole ground that there was a failure to adjudicate within a reasonable time. (105) The sanction for breach of the reasonable time requirement in the proceedings cannot in any case lead to an undertaking being allowed to continue or to resume conduct which has been held to be contrary to the EU rules. (106)

106. Accordingly, I see no reason to propose that the Court should reconsider its previous case-law on this point. Consequently, the third part of the first plea in law must be rejected.

b)      b) Impact of the length of the proceedings on Solvay’s ability to defend itself in this case (fourth part of the first plea in law)

107. The fourth part of the first plea in law is concerned with paragraphs 113 to 117 of the judgment under appeal, in which the General Court finds that Solvay’s ability to defend itself effectively was not adversely affected by any infringement of the reasonable time principle and that its rights of defence were not therefore infringed. Solvay regards this, in essence, as constituting a failure to state reasons and an infringement of the principle of preserving the rights of the defence and of the reasonable time principle. The General Court, it contends, did not sufficiently consider the difficulties connected with its defence which Solvay faces after such a long period.

i)      Alleged failure to state reasons

108. The alleged failure to state reasons within the meaning of Article 36 in conjunction with the first paragraph of Article 53 of the Statute of the Court of Justice is said to lie in the fact that the General Court did not examine the numerous arguments which Solvay raised at first instance on the subject of the difficulties it was experiencing in connection with its defence.

109. That argument is unconvincing. As has already been stated, the obligation to state reasons does not require the General Court to provide an account which follows exhaustively and one by one all the arguments put forward by the parties to the case and the reasoning may therefore be implicit on condition that it enables the persons concerned to know why the General Court has not upheld their arguments and provides the Court of Justice with sufficient material for it to exercise its power of review. (107)

110. Indeed, in the judgment under appeal, the General Court expressly examines, albeit rather briefly, Solvay’s claim that it is difficult for it to defend itself against the Commission’s charges after such a long time. It states, in essence, that the Commission did not carry out any measure of investigation after the first judicial proceedings in the present case and did not take into account any new factor requiring the exercise of a right of defence in the contested decision. (108)

111. However much Solvay may disagree with the substantive assessment of the circumstances of the case, that assessment cannot be regarded as constituting a failure to state reasons. (109)

ii)    Alleged error of substantive law

112. However, the General Court’s statement that the length of the proceedings did not adversely affect Solvay’s ability to defend itself is also criticised by the appellant from the point of view of its substance. Solvay regards that statement as constituting an infringement of the principle of preserving the rights of the defence and of the reasonable time principle.

113. It may appear at first sight that Solvay seeks to prompt the Court of Justice to substitute its own assessment of the facts for that of the General Court, which it may not do on appeal. (110)

114. On closer examination, however, Solvay is complaining not so much that the General Court incorrectly assessed the facts as that it disregarded what, in Solvay’s view, is a significant point: the General Court did not take into account the fact that the time which had elapsed since the beginning of the proceedings adversely affected Solvay’s ability to defend itself in the judicial proceedings. In its contention, the General Court wrongly confined its examination of the impact of the passage of time to Solvay’s ability to defend itself before the Commission (that is to say in the administrative proceedings).

115. That argument is well founded.

116. When examining whether the allegedly excessive length of the proceedings has adversely affected the ability of the undertaking concerned to defend itself, the General Court must not restrict its examination exclusively to the defence at a particular stage of the proceedings. Rather, it must examine in a very general way whether the length of the proceedings might have adversely affected the undertaking in its defence against the Commission’s complaints. (111)

117. It is true that that defence takes place first of all in the administrative procedure, during which the undertaking is given an opportunity to express its views on the statement of objections. However, the defence is not confined to the administrative procedure. Rather, the undertaking concerned has a right of action before the EU Courts to challenge a Commission decision imposing a fine (fourth paragraph of Article 263 TFEU, formerly the fourth paragraph of Article 230 EC). In the context of those judicial proceedings, too, the undertaking must be able to defend itself effectively against the charges brought against it – now in the form of a formal decision – by the Commission.

118. The General Court was therefore wrong to confine itself to examining whether Solvay was able to defend itself effectively in the administrative procedure (112) and whether the length of the past judicial proceedings – the proceedings in Case T‑31/91 concerning the first decision imposing a fine (Decision 91/298) – had had an adverse impact. (113) The General Court neglected to include in its considerations the undertaking’s present ability to defend itself in the second set of judicial proceedings – the proceedings in Case T‑58/01, concerning Decision 2003/5, at issue here.

119. The need to take into account Solvay’s ability to defend itself before the General Court in Case T‑58/01 should have been apparent in the present case for two reasons: first, the fact that Solvay had expressly asked the Court to take into account the length of the judicial proceedings at that time, and, secondly, the fact that Solvay had not even been granted access to the file until those judicial proceedings (more precisely, in 2005). It was therefore of decisive importance to determine whether, in 2005, Solvay was still able to defend itself effectively against the Commission’s accusations and findings.

120. The fundamental right to have a matter adjudicated upon within a reasonable time requires the Commission to adopt its decision imposing a fine at the administrative stage of antitrust proceedings in sufficient time for the undertaking concerned to be able to defend itself effectively against it before the EU Courts.

121. As the General Court did not give any consideration to that legally significant fact, the judgment under appeal is vitiated by an error of law.

iii) Some additional complaints

122. Finally, Solvay relies in this fourth part of the first plea in law on a distortion of facts and an infringement of Article 6 of the ECHR and Article 6(1) TEU.

123. These additional complaints do not require detailed discussion. No evidence to substantiate the alleged distortion of facts has been adduced (114) and I cannot find any indication of such a distortion. As for Article 6 of the ECHR and Article 6(1) TEU, the former provision is not directly applicable and the latter provision does not in itself contain any guarantees of fundamental rights. (115)

iv)    Interim conclusion

124. The fourth part of the first plea in law is in part well founded.

c)      c) Alleged waiving by Solvay of a reduction of the fine (fifth part of the first plea in law)

125. By the fifth and last part of the first plea in law, Solvay specifically attacks paragraph 122 of the judgment under appeal. In that paragraph, the General Court states that, ‘in the application, [Solvay] expressly renounced the possibility of a reduction of the fine by way of compensation for the alleged breach of its right to be tried within a reasonable time’. Solvay regards this as constituting a distortion of its submissions in the proceedings at first instance.

126. It is settled case-law that there is such distortion where, without recourse to new evidence, the assessment of the existing evidence appears to be clearly incorrect. (116) If that criterion is applied to a party’s submission at first instance, such a distortion may be assumed to exist where the party’s submission was clearly misunderstood by the General Court or reproduced by it in such a way as to misrepresent its meaning.

127. Unfortunately, in its contested assertion in the judgment under appeal, the General Court does not make clear to which part of Solvay’s application it is referring. However, on appeal, the parties agreed that paragraphs 88 and 89 of the application could constitute the starting point for the General Court’s statement criticised by Solvay. In paragraph 88 of that application, the undertaking claims in essence that, in its view, the infringement of the principle of a fair hearing can only be removed by annulling the contested decision; merely reducing the fine is not capable of removing the alleged infringement of Article 6 of the ECHR. In paragraph 89 of the application, Solvay then concludes that the clear failure to adjudicate within a reasonable time which it alleges cannot but give rise to the annulment of the contested decision. (117)

128. I cannot see any waiving of a reduction of the fine on account of the length of the proceedings in the passage taken from the application. It is certainly not possible, as the General Court assumes, to infer from Solvay’s written submissions an ‘express renunciation’ by that undertaking of a reduction of the fine on account of the excessive length of the proceedings.

129. Rather, in paragraphs 88 and 89 of its application at first instance, Solvay is simply making its legal opinion emphatically clear. It explains what it considers the legal consequence of the alleged infringement of the reasonable time principle should be: not a reduction of the fine but annulment of the contested decision.

130. There is a fundamental difference between the statement of a legal opinion and the express renunciation of the possibility of a reduction of the fine by way of compensation for an alleged infringement of a right. The General Court failed to appreciate that difference in paragraph 122 of the judgment under appeal.

131. Paragraph 122 of the judgment under appeal shows that the General Court clearly misunderstood Solvay’s submissions in the proceedings at first instance and, moreover, reproduced them in such a way as to misrepresent their meaning. This constitutes a distortion of the party’s submissions.

132. That distortion is made abundantly clear by the fact that, elsewhere in its application at first instance, Solvay actually asks the General Court to reduce the fine and, in so doing, expressly refers to its ‘submissions concerning the grounds for annulment’, in other words, to its submissions on the excessive length of the proceedings. (118)

133. Consequently, the fifth part of the first plea in law must be upheld.

3.      3. Interim conclusion

134. The first plea in law is in part successful.

C –    Setting-aside of the judgment under appeal

135. As is clear from the foregoing comments, the three pleas in law raised by Solvay are mostly well founded. The success of any one of those pleas in law is sufficient in itself to warrant the setting-aside of the judgment under appeal in its entirety.

D –    Decision on the action at first instance

136. Under the first paragraph of Article 61 of its Statute, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits.

137. That is the situation in the present case. All points of fact and law relevant to a decision on the action brought by Solvay have already been debated at first instance before the General Court, and the parties have had the opportunity to exchange their arguments in this regard. There is therefore no need to refer the case back to the General Court, the Court of Justice being able to give judgment itself on the action for annulment of the contested decision brought by Solvay. In view of the extraordinary length of the proceedings – 22 years from the Commission’s investigations in April 1989 up to the present day – the Court of Justice should make good use of that possibility.

138. I shall confine myself hereinafter to a brief analysis of the legality of the contested decision from three selected points of view: right of access to the file (Section 1 below), right to a hearing (Section 2 below) and length of the proceedings (Section 3 below).

1.      Right of access to the file

139. It is established that, before the contested decision was adopted, Solvay was not granted sufficient access to the file to meet the relevant legal requirements. (119)

140. As has already been stated, it cannot be ruled out that Solvay might have found in the missing parts of the file, the content of which is unknown, information which would have been useful for its defence. This is particularly true given that the Commission itself assumes that some of the missing binders ‘contained the correspondence relating to Article 11 of Regulation No 17’, that is to say requests for information sent by the Commission to various undertakings and their replies to those requests. (120) Such observations from third parties might have contained information useful for the assessment of the agreement between Solvay and CFK, if only in relation to the duration of the established infringement and the level of the fine imposed. As far as the duration of the infringement is concerned, the information provided by the Commission in the contested decision was incomplete and contradictory. (121)

141. There was therefore at least the possibility that, if access to the file had been duly granted, the outcome of the administrative procedure would have been different, if only in respect of the amount of the fine imposed.

142. Consequently, on the sole ground of the procedural defects that occurred in connection with access to the file (missing documents), the contested decision must be annulled in its entirety.

2.      Right to a hearing

143. It is also established that Solvay was not given a new hearing by the Commission before the contested decision was adopted in 2000, even though this was required by law. (122) That procedural error is closely connected with the failure to grant access to the file.

144. It cannot be ruled out that the outcome of the administrative procedure might have been different if the Commission had given the undertaking the opportunity in 2000 – after duly granting it access to the file – to express its views again on the complaints which it had raised. (123)

145. For that reason also, the contested decision must be annulled in its entirety.

3.      Right to have a matter adjudicated upon within a reasonable time

146. Finally, the length of the proceedings must be assessed in the light of all the circumstances of the individual case. (124)

147. In this case, it should be observed that the Commission was completely inactive in the period between the annulment of its first decision imposing a fine (Decision 91/298) and the first judgment of the Court of Justice in its appellate jurisdiction. (125) This meant that a period of four years and seven months went by unused. (126)

148. That inactivity on the part of the Commission cannot be justified by reference to the appeal which it had at that time lodged against the annulment of the first decision imposing a fine. The Commission is of course at liberty to exhaust all of the procedural remedies available to it and, in the event of its being unsuccessful at first instance, to have recourse to the Court of Justice in its appellate jurisdiction. However, this does not mean that the Commission can adjourn the administrative procedure while such appeal proceedings are taking place. (127)

149. The appeal does not have suspensory effect (first paragraph of Article 60 of the Statute of the Court of Justice). Consequently, from 29 June 1995, the day on which the judgment at first instance in Case T‑31/91 was delivered, the Commission had an obligation under the first paragraph of Article 233 EC (now the first paragraph of Article 266 TFEU) to adopt the measures arising from the judgment of annulment given by the General Court. The principle of good administration would also have required the Commission either to work swiftly towards a new substantive decision or to discontinue the administrative procedure.

150. The Commission could easily have continued the administrative procedure from July 1995 instead of waiting until April 2000. (128) It would simply have had to make clear in its new decision imposing a fine that that decision would be obsolete in the event of its being successful in the appeal proceedings.

151. In those circumstances, I conclude that, in this case, the administrative procedure was excessively long for the sole reason that the Commission was inactive for almost five years from July 1995 to April 2000. As has already been stated, (129) there is therefore no need to examine any further the length of other stages of the proceedings or to conduct an overall assessment of the length of the proceedings. (130)

152. It is true that the infringement of the reasonable time principle established above warrants annulment of the contested decision only if the ability of the undertaking concerned to defend itself was adversely affected by the length of the proceedings. (131) The burden of proving this lies with the undertaking.

153. As a rule, the Court of Justice attaches strict conditions to the furnishing of such proof. (132) The arguments put forward by the undertaking concerned must be supported by convincing evidence and must not be too abstract or imprecise. (133) Where – as here – it is alleged, for example, that the appellant’s ability to defend itself was reduced by the departure of former members of staff, these must normally be identified by name and an indication given of their position and the date on which they left, the nature and scope of the information or details which they could be expected to provide and the circumstances that made it impossible to obtain the testimony of the persons concerned. (134)

154. There is no doubt that Solvay has not provided such detailed information in the current judicial proceedings before the EU Courts.

155. In this case, however, it must be borne in mind that the period during which Solvay is accused of participating in a cartel, 1987 to 1990, was already 10 to 13 years in the past at the time when the second decision imposing a fine was adopted at the end of 2000. When Solvay finally gained access to the file before the General Court in 2005, 15 to 18 years had already elapsed since the period of the infringement established by the Commission.

156. It is obvious that the memories of an undertaking’s staff – and especially its former staff – fade after such a long time.

157. In the proceedings at first instance, Solvay none the less offered to give the General Court precise details of the management personnel employed in the ‘Carbonate’ department in the period at issue and of when they left or died.

158. In the particular circumstances of this case, nothing more could reasonably have been expected of Solvay.

159. In particular, it must not operate to the appellant’s disadvantage that it did not give details of the events and evidence on which its former staff would have provided information. After all, the undertaking does not to this day have knowledge of all the parts of the file which it should in fact have been shown. (135) Solvay cannot be expected to furnish evidence on whether and to what extent its former staff might have been able to provide information on missing parts of the file the content of which is unknown and which it has not been able to access at any point in the proceedings.

160. Generally speaking, the bar in terms of the requirements for demonstrating that an undertaking’s ability to defend itself has been adversely affected by the passage of time must not be placed so high as to make it practically impossible or excessively difficult for the undertaking concerned to furnish any evidence.

161. In the light of the irretrievable loss of a part of the file which may have contained correspondence exchanged by the Commission with third undertakings, (136) it cannot be ruled out that Solvay’s former staff might have been helpful to the undertaking’s defence if it had been possible to contact them. In particular, it cannot be ruled out that the aforementioned staff might have been able to provide background information which was not apparent from reliance on written records alone.

162. In the light of all the foregoing, there are sufficient indications that the excessive length of the proceedings adversely affected Solvay’s ability to defend itself against the Commission. For that reason alone, the contested decision must be annulled.

4.      Interim conclusion

163. It is already apparent from consideration of some of the points of law raised by the appellant at first instance in connection with access to the file, the right to a hearing and the length of the proceedings that the contested Commission decision (Decision 2003/5) must be annulled in its entirety. It is not therefore necessary to examine the other pleas in law raised by Solvay at first instance.

V –  Application for a reduction of the fine

164. In addition to the setting-aside of the judgment under appeal and the annulment of the contested decision, (137) Solvay also seeks to have the fine – reimposed by the General Court – cancelled or reduced by way of compensation for the serious damage which it claims to have sustained as a result of the extraordinary length of the proceedings.

165. Under the solution which I have proposed, to the effect that the judgment under appeal should be set aside (138) and the contested decision annulled, (139) this separate application by Solvay is rendered obsolete. I shall none the less address it below in the alternative, for the sake of completeness.

A –    Preliminary remark

166. Two different approaches to the issue of excessively long proceedings can be inferred from the previous case-law of the Court of Justice. In Baustahlgewebe, in which a fine had been imposed on the undertaking concerned in antitrust proceedings, the Court of Justice granted a reduction of the fine. (140) In Der Grüne Punkt, on the other hand, in which no such fine had been imposed, the Court was able merely to alert the undertaking concerned to the possibility of bringing a claim for damages under Article 268 TFEU in conjunction with the second paragraph of Article 340 TFEU (formerly Article 235 EC in conjunction with the second paragraph of Article 288 EC). (141)

167. At the hearing, the Commission expressed a preference for the latter approach, as illustrated by Der Grüne Punkt. It justified this by the need to implement competition law effectively. In its view, a reduction of the fine would adversely affect the effective implementation of the European competition rules.

168. That objection is unconvincing.

169. On the one hand, it is true that implementation of the European competition rules, which are essential for the functioning of the internal market, (142) is without any doubt a fundamental aim of the Treaties. (143) Effective and dissuasive penalties are indispensable to the achievement of that aim.

170. On the other hand, however, it is necessary in proceedings such as the administrative procedure in an antitrust case, the characteristics of which are similar to those of criminal law, to have special regard to the basic procedural guarantees. (144) Competition law may be implemented only by means which are irreproachable from the point of view of the rule of law. Where, therefore, a fundamental right such as the right to have a matter adjudicated upon in a reasonable time is infringed in antitrust proceedings, the undertaking concerned is entitled to an effective remedy.

171. The search for a solution in a case involving a failure to adjudicate within a reasonable time must therefore necessarily strike a balance between the requirement to implement the competition rules, on the one hand, and the requirement to provide an effective remedy for infringement of the fundamental right, on the other.

172. In the interests of procedural economy and the need to provide the undertaking concerned with an immediate and effective remedy, the Court of Justice should, where possible (in other words, in cases involving fines) continue to adopt the approach which it outlined in Baustahlgewebe. (145)

173. In such a case, competition law is effectively implemented through the establishment of the infringement and the imposition on the undertaking concerned of an obligation to bring it to an end. (146) The fine originally set by the Commission or that set by the General Court continues to have a deterrent effect on the other operators on the market. The Court of Justice does not call in question the appropriateness of the fine to the infringement committed. The ‘Baustahlgewebe method’ simply involves a form of offsetting against the original fine of the amount considered to represent appropriate compensation for the excessive length of the proceedings. (147)

B –    Reduction of the fine

174. The case-law in Baustahlgewebe (148) rests ultimately on the unlimited jurisdiction within the meaning of Article 261 TFEU (formerly Article 229 EC) which the Court of Justice has to review penalties imposed in competition proceedings, pursuant to Article 17 of Regulation No 17. (149) This enables the Court of Justice to cancel, reduce or increase fines or periodic penalty payments at its discretion.

175. Pursuant to the case-law in Baustahlgewebe, it is necessary, first, to assess the length of the proceedings (see Section 1 below) and, then, to determine the extent of any reduction of the fine applicable (see Section 2 below).

1.      Excessive length of the administrative and judicial proceedings

176. As has already been stated, (150) the reasonableness of the length of the proceedings 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.

177. In this connection, while the individual stages of the proceedings must be examined separately, it is also necessary to carry out an overall assessment of the length of the administrative and judicial proceedings. (151)

178. Of the various stages in the proceedings, two in particular are problematic from the point of view of the reasonable time principle: the period of the Commission’s complete inactivity during the first appeal proceedings (proceedings in Joined Cases C‑287/95 P and C‑288/95 P), on the one hand, and that of the second set of proceedings before the General Court (proceedings in Case T‑58/01), on the other. (152)

179. It has already been stated (153) that the Commission’s inactivity for four years and seven months from July 1995 to April 2000 – that is to say, during the first appeal proceedings – infringed Solvay’s fundamental right to have its case adjudicated upon within a reasonable time. For the purposes of the present proceedings, it may therefore be left open whether, in the same period, the Court of Justice, in its appellate jurisdiction, was also open to the charge of failure to adjudicate in reasonable time, the proceedings having lasted four years and seven months.

180. As regards the second set of proceedings before the General Court (Case T‑58/01), at eight years and nine months, they immediately appear to be intolerably long.

181. As the appellant rightly points out, the length of time taken to process the proceedings in the present case cannot be justified by reference to any kind of complexity attaching to the case. The General Court had to deal with only two parties, translation took up almost no time at all, (154) and the questions of fact and law raised by the parties to the proceedings did not present any exceptional difficulties. Although the case was connected with the parallel proceedings in Case T‑57/01, the fact that many of the heads of claim in the two cases were the same should have produced synergies when it came to processing the cases and should therefore have accelerated rather than delayed them.

182. It is true that the delay in the proceedings was due in no small measure to the need to allow Solvay to inspect the administrative file during the judicial proceedings. (155) That this took one and a half years – two years, in fact, including the time for the submission of written observations by the parties – (156) is completely unacceptable, however. This loss of time cannot operate to Solvay’s detriment. Where appropriate, the General Court should have set the Commission clear deadlines and drawn the necessary conclusions to the detriment of the Commission if it had failed to meet those deadlines.

183. There are also some periods of extensive inactivity on the part of the General Court in the proceedings at first instance. Particularly notable, for example, are the 29 months that elapsed between the Commission’s observations on the usefulness of certain documents for Solvay’s defence and the opening of the oral procedure. (157) Mention must also be made of the period of almost 18 months that elapsed between the hearing on 26 June 2008 and delivery of the judgment under appeal on 17 December 2009. (158)

184. It is self-evident that issues relating to the internal organisation of the General Court, for example those connected with the regular partial replacement of judges or with judges being prevented from attending, must not operate to the detriment of the persons concerned. (159)

185. In those circumstances, both the administrative proceedings and the judicial proceedings in this case were excessively long.

186. That impression is reinforced when account is taken of the length of all the stages of the administrative and judicial proceedings in this case considered as a whole:

–        In accordance with the case-law of the ECtHR concerning Article 6(1) of the ECHR, the starting point for calculating the length of the proceedings must be regarded as the day on which Solvay was first affected by measures taken as a result of suspicions against it. (160) In the present case, that starting point came long before the statement of objections (comparable to the bringing of formal ‘charges’): it occurred on the day when the Commission carried out its inspection at Solvay’s premises in April 1989. (161)

–        At no point since then have the proceedings been discontinued.

–        The expected end date must be regarded as the day on which the Court of Justice delivers its judgment in the present appeal proceedings. (162)

187. To date, the total length of the proceedings is 22 years. The question whether it is ever justifiable for proceedings to last so long can be left unanswered. Such justification would certainly have to be supported by exceptional circumstances, such as the particular complexity of the questions of fact and of law to be considered or the fact that the undertaking itself shared much of the responsibility for some of the delays in the proceedings. There is no question of such circumstances obtaining here.

188. I would point out merely in passing that the mere fact that the limitation period has not yet expired is not sufficient to justify the total length of the proceedings. (163) The limitation period indicates only the latest time when measures imposing a fine for infringements of the European competition rules may be adopted. Within the limitation period, the reasonable time principle requires that investigations should be carried out and decisions made promptly and that any unjustifiable periods of inactivity should be avoided. The reason for this is that the undertakings concerned are under increased pressure while the proceedings are ongoing and face constant uncertainty as to when the proceedings against them will end and what their outcome will be. In that situation, the principle that proceedings must be concluded within a reasonable time affords them an increased measure of protection which goes beyond that provided by the limitation of actions. (164)

189. Taking everything into consideration, I therefore conclude that Solvay’s fundamental right to have its case decided upon within a reasonable time was infringed.

190. Pursuant to the case-law in Baustahlgewebe, (165) the judgment under appeal would have to be set aside on the ground of the excessive length of the proceedings, at least in so far as it sets the amount of the fine at EUR 2.25 million.

2.      Extent of the reduction of the fine

191. When questioned at the hearing, the parties expressed widely differing views on the extent of any reduction to be applied to the fine in this case. Whereas, in view of the length of the proceedings, Solvay seeks to have the fine reduced to such an extent that the penalty becomes merely symbolic, the Commission adopts the diametrically opposite point of view: in its opinion, it is not the fine but the reduction which should be symbolic.

192. In Baustahlgewebe, the only example available to date, the extent of the reduction of the fine applied by the Court of Justice was marginal: a fine of ECU 3 million imposed by the General Court was reduced by ECU 50 000; (166) this amounts to a reduction of just 1.67%.

193. It is doubtful whether such a small reduction of the fine would still be appropriate today in the light of the provisions of the ECHR. Under the case-law of the ECtHR concerning Article 6(1) of the ECHR, which, in accordance with the first sentence of Article 52(3) of the Charter of Fundamental Rights, must also be taken into account in EU law, it is the extent of the failure to adjudicate within a reasonable time which determines the redress applicable. (167)

194. In the present case, the length of the individual stages of the administrative and judicial proceedings, on the one hand, and the length of all the stages of the proceedings taken together, on the other hand, both represent a substantial failure to adjudicate within a reasonable time. In the absence of any exceptional circumstances, a period of inactivity of four years and seven months in the administrative proceedings, (168) judicial proceedings at first instance lasting eight years and nine months (169) and a total duration for the proceedings to date of 22 years (170) exceed any conceivable threshold for what constitutes reasonable time.

195. In those circumstances, a relatively small reduction of the fine, such as that applied by the Court of Justice in Baustahlgewebe and that which the Commission appears to have in mind for this case too, would not be appropriate.

196. The infringement of a fundamental right through failure to adjudicate in reasonable time requires an effective sanction. In this regard, it is necessary to take into account the seriousness of the infringement committed by the undertaking, on the one hand, and the seriousness of the infringement of the fundamental right resulting from failure to adjudicate in reasonable time, on the other. (171)

197. In this case, it must be assumed that there has been a serious infringement of the fundamental right to have a matter adjudicated upon within a reasonable time. This warrants an appreciable reduction of the fine. At the same time, however, it must be borne in mind that, according to the Commission’s findings, the cartel agreement between Solvay and CFK constitutes ‘a serious infringement’ of one of the fundamental provisions of the internal market (Article 81 EC). (172) Having regard to all the circumstances of the individual case, I would therefore consider a reduction of the fine of 50% to be appropriate. The amount of the fine imposed by the General Court should be taken as the starting point for calculating that reduction.

198. Accordingly, in the event that the Court of Justice does not set aside the judgment under appeal in full and does not annul the contested decision, (173) I propose that the fine of EUR 2.25 million should at least be reduced by 50%.

VI –  Costs

199. Under the first paragraph of Article 122 of the Rules of Procedure, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs.

200. Under Article 69(2) in conjunction with Article 118 of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since Solvay has claimed that the Commission should be ordered to pay the costs of both the appeal proceedings and the proceedings at first instance, and the Commission has been unsuccessful in its claims at both instances, the Commission must be ordered to pay the costs of both sets of proceedings.

VII –  Conclusion

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

(1)      set aside the judgment of the General Court of 17 December 2009 in Case T‑58/01 Solvay v Commission;

(2)      annul Commission Decision 2003/5/EC of 13 December 2000;

(3)      order the European Commission to pay the costs of both sets of proceedings.

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1 – Original language: German.

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2 – On the first appeal proceedings, see Joined Cases C‑287/95 P and C‑288/95 P Commission v Solvay [2000] ECR I‑2391.

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3 – For further information see the introduction to my Opinion of today’s date in Case C‑109/10 P Solvay v Commission, points 1 to 6.

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4 – Solvay SA (formerly Solvay et Cie SA) is a public limited company governed by Belgian law operating in the pharmaceutical, chemical, plastic and processing sectors.

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5 – Chemische Fabrik Kalk GmbH.

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6 – European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’, signed in Rome on 4 November 1950).

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7 – Solvay’s application to the ECtHR was made on 26 February 2010 and is attached as an annex to the appeal brought by that undertaking in the present proceedings.

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8 – See in this regard and in connection with the following points paragraphs 5 to 42 of the judgment in Case T‑58/01 Solvay v Commission [2009] ECR II‑4781, also referred to as ‘the judgment under appeal’, and, in addition, paragraph 22 of the judgment in the parallel Case T‑57/01 Solvay v Commission [2009] ECR II‑4621.

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9 – 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).

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10 – Soda ash is used in the manufacture of glass (dense soda ash) as well as in the chemical industry and in metallurgy (light soda ash). A distinction must be drawn between natural (dense) soda ash and synthetic (dense and light) soda ash. Natural soda is obtained by crushing, purifying and roasting trona ore. Synthetic soda is the result of the reaction of ordinary salt and calcium in the ‘ammonia-soda’ process developed by the Solvay brothers in 1863.

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11 – In addition to Solvay, the investigations also related to the undertakings AKZO, Chemische Fabrik Kalk (CFK), Imperial Chemical Industries (ICI), Matthes & Weber and Rhône Poulenc. The basis for those investigations was the Commission decision of 5 April 1989 ordering the investigation, an extract from which is cited in the judgment in Case T‑57/01 Solvay v Commission (cited in footnote 8, paragraph 19).

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12 – With regard to the Commission’s finding that Solvay was abusing its dominant position, I refer to my Opinion of today’s date in the parallel proceedings in Case C‑109/10 P Solvay v Commission, pending before the Court.

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13 – See in particular in this regard paragraphs 23, 27 and 31 of the judgment under appeal.

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14 – Commission Decision 91/298/EEC of 19 December 1990 relating to a proceeding under Article 85 of the EEC Treaty (IV/33.133 – B: Soda ash – Solvay and CFK; OJ 1991 L 152, p. 16). That decision is only one of four which the Commission addressed to the undertakings operating on the soda ash market that day. Of the other decisions, one was directed against Solvay and ICI (Commission Decision 91/297/EEC of 19 December 1990 relating to a proceeding under Article 85 of the EEC Treaty (IV/33.133 – A: Soda ash – Solvay, ICI; OJ 1991 L 152, p. 1)), one against Solvay alone (Commission Decision 91/299/EEC of 19 December 1990 relating to a proceeding under Article 86 of the EEC Treaty; (IV/33.133 – C: Soda ash Solvay; OJ 1991 L 152, p. 21)) and one against ICI alone (Commission Decision 91/300/EEC of 19 December 1990 relating to a proceeding under Article 86 of the EEC Treaty (IV/33.133 – D: Soda ash – ICI; OJ 1991 L 152, p. 40)).

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15 – At that time, ECU 3 million and ECU 1 million respectively.

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16 – Case T‑31/91 Solvay v Commission [1995] ECR II‑1821, confirmed by the Court’s judgment in Commission v Solvay (cited in footnote 2).

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17 – Paragraph 247 of the judgment under appeal.

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18 – The Commission took no further action against CFK in 2000, presumably because the undertaking had since ceased its production of soda ash.

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19 – Commission Decision 2003/5/EC of 13 December 2000 relating to a proceeding pursuant to Article 81 of the EC Treaty (COMP/33.133 – B: Soda ash – Solvay, CFK; OJ 2003 L 10, p. 1; ‘the contested decision’). On the same day, the Commission also adopted Decision 2003/6/EC of 13 December 2000 relating to a proceeding under Article 82 of the EC Treaty (COMP/33.133 – C: Soda ash – Solvay; OJ 2003 L 10, p. 10), which forms the background to the parallel appeal in Case C‑109/10 P Solvay v Commission, pending before the Court.

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20 – Case T‑58/01 Solvay v Commission (cited in footnote 8). On the same day, the General Court also gave judgment in the parallel Case T‑57/01 Solvay v Commission (cited in footnote 8); the latter judgment is the subject of the appeal in Case C‑109/10 P Solvay v Commission, also pending before the Court.

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21 – Also referred to as ‘the appellant’.

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22 – Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1). The second paragraph of Article 45 of that regulation states that it has been applicable since 1 May 2004.

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23 – See points 17 to 122 of my Opinion of today’s date in Case C‑109/10 P.

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24 – Case C‑550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission and Others [2010] ECR 1‑0000, paragraph 92; see also Case C‑194/99 P Thyssen Stahl v Commission [2003] ECR I‑10821, paragraph 30, and Joined Cases C‑322/07 P, C‑327/07 P and C‑338/07 P Papierfabrik August Koehler v Commission [2009] ECR I‑7191, paragraph 34.

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25 – The Charter of Fundamental Rights of the European Union was solemnly proclaimed, first, in Nice on 7 December 2000 (OJ 2000 C 364, p. 1) and then, for a second time, in Strasbourg on 12 December 2007 (OJ 2007 C 303, p. 1, and OJ 2010 C 83, p. 389).

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26 – Paragraphs 7 and 10 of the judgment under appeal.

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27 – Paragraphs 7, 242 and 243 of the judgment under appeal.

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28 – Paragraph 243 of the judgment under appeal.

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29 – Paragraph 25 of the judgment under appeal and recital 70 to the contested decision.

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30 – Paragraphs 247 and 248 of the judgment under appeal.

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31 – Paragraphs 40 to 48 of the judgment under appeal.

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32 – Paragraphs 50 and 51 of the judgment under appeal.

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33 – Paragraphs 48, 49 and 254 of the judgment under appeal.

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34 – Paragraphs 49, 246 and 256 of the judgment under appeal.

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35 – 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 Aalborg Portland and Others v Commission [2004] ECR I‑123, paragraph 68, and Case C‑407/08 P Knauf Gips v Commission [2010] ECR 1‑0000, paragraph 22.

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36 – The General Court, too, proceeds on the assumption of this procedural defect in paragraphs 245 to 248 of the judgment under appeal.

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37 – See in this regard Article 41(2)(b) of the Charter of Fundamental Rights.

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38 – Case C‑51/92 P Hercules Chemicals v Commission [1999] ECR I‑4235, paragraph 78, Case C‑199/99 P Corus UK v Commission [2003] ECR I‑11177, paragraph 128, 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 and Others v Commission [2002] ECR I‑8375 (‘PVC II’), paragraph 318, and Aalborg Portland (cited in footnote 35, paragraph 104); see also Case T‑30/91 Solvay v Commission [1995] ECR II‑1775, paragraph 98, and Case T‑36/91 ICI v Commission [1995] ECR II‑1847, paragraph 108.

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39 – Hercules (cited in footnote 38, paragraph 77); Corus UK (cited in footnote 38, paragraph 127); and PVC II (cited in footnote 38, paragraphs 317, 322 and 323).

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40 – In Case C‑109/10 P, the third plea in law is devoted to the missing parts of the file and the fourth plea in law to the documents from the file in the administrative procedure which were accessible before the General Court (see in this regard points 156 to 206 of my Opinion of today’s date in that case).

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41 – Article 6(2) TEU in the version of the Treaty of Lisbon.

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42 – See inter alia Aalborg Portland (cited in footnote 35, paragraph 64); see to the same effect Case C‑7/98 Krombach [2000] ECR I‑1935, paragraphs 25 and 26, Case C‑450/06 Varec [2008] ECR I‑581, paragraphs 44 and 46, and Case C‑45/08 Spector Photo Group and Van Raemdonck [2009] ECR I‑12073, paragraph 43.

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43 – This would in fact be inadmissible (see PVC II, cited in footnote 38, paragraphs 330 and 331, and Aalborg Portland, cited in footnote 35, paragraph 77 in conjunction with paragraph 76).

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44 – Aalborg Portland (cited in footnote 35, paragraph 125); see to this effect Case C‑280/08 P Deutsche Telekom v Commission [2010] ECR I‑0000, paragraphs 77, 155 and 195, in which the Court held to be admissible a number of complaints claiming that, in the judgment at first instance, the General Court applied an incorrect legal test; see also Joined Cases C‑403/04 P and C‑405/04 P Sumitomo Metal Industries and Nippon Steel v Commission [2007] ECR I‑729, paragraph 40, Case C‑413/06 P Bertelsmann and Sony Corporation of America v Impala [2008] ECR I‑4951, paragraph 117, and Case C‑47/07 P Masdar (UK) v Commission [2008] ECR I‑9761, paragraph 77.

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45 – Paragraph 257 of the judgment under appeal.

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46 – Paragraphs 263 and 264 of the judgment under appeal.

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47 – See in particular the first sentence of paragraph 262 of the judgment under appeal.

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48 – PVC II (cited in footnote 38, paragraphs 318 and 324); Aalborg Portland (cited in footnote 35, paragraph 75); and Knauf Gips (cited in footnote 35, paragraph 23).

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49 – Aalborg Portland (cited in footnote 35, paragraph 131).

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50 – Aalborg Portland (cited in footnote 35, paragraph 68) and Knauf Gips (cited in footnote 35, paragraph 22).

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51 – Paragraph 256 of the judgment under appeal.

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52 – See in particular PVC II (cited in footnote 38); Aalborg Portland (cited in footnote 35); Corus UK (cited in footnote 38); and Knauf Gips (cited in footnote 35).

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53 – PVC II (cited in footnote 38 paragraphs 318 and 324); Aalborg Portland (cited in footnote 35, paragraphs 74, 75 and 131); and Knauf Gips (cited in footnote 35, paragraphs 23 and 24).

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54 – First sentence of paragraph 262 of the judgment under appeal.

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55 – Paragraph 262 of the judgment under appeal.

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56 – Paragraphs 260 to 262 of the judgment under appeal.

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57 – Aalborg Portland (cited in footnote 35, paragraphs 127, 128 and 131).

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58 – Paragraphs 262 to 263 of the judgment under appeal.

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59 – For further submissions in this regard, see also points 170 to 175 and 177 of my Opinion of today’s date in Case C‑109/10 P.

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60 – Solvay made reference to this submission both in its appeal and at the hearing before the Court.

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61 – Deutsche Solvay Werke.

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62 – See, in this regard, recital 49 to the contested decision.

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63 – Interestingly, the Commission itself seems to assume that at least some of the missing binders ‘contained correspondence relating to Article 11 of Regulation No 17’, that is to say requests for information sent by the Commission to various undertakings and their replies to those requests (see paragraph 49 of the judgment under appeal).

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64 – See in this regard Aalborg Portland (cited in footnote 35, paragraph 75) and Knauf Gips (cited in footnote 35, paragraph 23), in which the Court held it to be sufficient for documents to have been capable of ‘having an influence, in any way at all, on the assessments made by the Commission in any decision, at least as regards the gravity and duration of the conduct of which the undertaking was found to have been engaged and, accordingly, the level of the fine’.

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65 – See point 38 of this Opinion.

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66 – See in particular paragraph 172 of the judgment under appeal.

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67 – Paragraph 173 of the judgment under appeal.

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68 – See in this regard points 23 to 49 of this Opinion.

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69 – Case C‑407/04 P Dalmine v Commission [2007] ECR I‑829, paragraph 44, and Case C‑328/05 P SGL Carbon v Commission [2007] ECR I‑3921, paragraph 71; see also Joined Cases 100/80 to 103/80 Musique Diffusion française and Others v Commission [1983] ECR 1825, paragraph 10; Case 322/81 Nederlandsche Banden-Industrie-Michelin v Commission [1983] ECR 3461 (‘Michelin I’), paragraph 7. PVC II (cited in footnote 38, paragraph 85) and Impala (cited in footnote 44, paragraph 61); see to the same effect – from other areas of law – Case C‑32/95 P Commission v Lisrestal and Others [1996] ECR I‑5373, paragraph 21, Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351, in particular paragraph 348, and Case C‑141/08 P Foshan Shunde Yongjian Housewares & Hardware v Council [2009] ECR I‑9147, paragraph 83.

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70 – It is now laid down in Article 27(1) and (2) of Regulation No 1/2003.

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71 – PVC II (cited in footnote 38, in particular paragraph 88).

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72 – See in particular paragraphs 165 and 166 of the judgment under appeal.

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73 – See in this regard paragraphs 245 to 248 of the judgment under appeal and points 21 and 24 of this Opinion.

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74 – Case T‑31/91 Solvay v Commission (cited in footnote 16) and Commission v Solvay (cited in footnote 2).

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75 – Case T‑30/91 Solvay v Commission (cited in footnote 38, in particular paragraphs 99, 103 and 104) and ICI v Commission (cited in footnote 38, in particular paragraphs 109, 113 and 118). Those judgments were delivered on the same day as the judgment in Case T‑31/91 Solvay v Commission (cited in footnote 16), by which the General Court annulled Decision 91/298 on grounds of irregular authentication.

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76 – See in this regard the Commission’s statement in the Twelfth Report on Competition Policy, 1982, pp. 40 and 41 (reproduced in extract in paragraph 244 of the judgment under appeal).

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77 – See in particular Case T‑37/91 ICI v Commission [1995] ECR II‑1901, paragraphs 61 to 66 and 73), in which it was found that the rights of the defence had not been infringed.

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78 – See, on the one hand, Hercules, from 1999, (cited in footnote 38, paragraphs 75 and 76), and, on the other hand, the Commission’s commitment to granting access to the file published back in 1997 (‘Commission notice on the internal rules of procedure for processing requests for access to the file in cases pursuant to Articles 85 and 86 of the EC Treaty, Articles 65 and 66 of the ECSC Treaty and Council Regulation (EEC) No 4064/89 (OJ 1997 C 23, p. 3)).

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79 – Paragraphs 24, 167 and 171 of the judgment under appeal.

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80 – Paragraphs 7, 242 and 243 of the judgment under appeal.

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81 – See in this regard points 23 to 48 of this Opinion.

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82 – See in this regard point 28 of this Opinion.

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83 – PVC II (cited in footnote 38, paragraph 179). On the application of that principle specifically in judicial proceedings, see also Case C‑185/95 P Baustahlgewebe v Commission [1998] ECR I‑8417, paragraph 21, Thyssen Stahl (cited in footnote 24, paragraph 154), Sumitomo (cited in footnote 44, paragraph 115), and Case C‑385/07 P Der Grüne Punkt – Duales System Deutschland v Commission [2009] ECR I‑6155, paragraphs 177 to 179; on the application of the same principle in administrative proceedings, see Case C‑105/04 P Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied v Commission [2006] ECR I‑8725 (‘FEG’), paragraphs 35 to 52, and Case C‑113/04 P Technische Unie v Commission [2006] ECR I‑8831 (‘TU’), paragraphs 40 to 57.

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84 – See also to this effect PVC II (cited in footnote 38, paragraphs 176 to 178); in Der Grüne Punkt (cited in footnote 83, paragraphs 176 to 196), too, the Court of Justice examined the reasonableness of the length of the proceedings, although no effects on the outcome of the case were discernible.

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85 – Baustahlgewebe (cited in footnote 83, paragraph 29); PVC II (cited in footnote 38, paragraph 187); Thyssen Stahl (cited in footnote 24, paragraph 155); Sumitomo (cited in footnote 44, paragraph 116); and Der Grüne Punkt (cited in footnote 83, paragraph 181).

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86 – Thyssen Stahl (cited in footnote 24, paragraph 156) Sumitomo (cited in footnote 44, paragraph 117) and Der Grüne Punkt (cited in footnote 83, paragraph 182); see also PVC II (cited in footnote 38, paragraph 188).

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87 – See to this effect PVC II (cited in footnote 38, paragraph 184) as well as FEG (in particular paragraphs 37, 38 and 40) and TU (in particular paragraphs 42, 43 and 45), both cited in footnote 83.

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88 – This is quite separate from the question of the inferences that are to be drawn from such a procedural infringement; see in this regard points 91 to 124 and 164 to 197 of this Opinion.

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89 – Although the Court of Justice did not fully clarify this point in PVC II (cited in footnote 38, paragraphs 229 and 230), the case-law of the ECtHR leaves no doubt about the importance of an overall assessment of the length of the proceedings. See in this regard, in particular, Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, no. 8130/78: in that case, the ECtHR examines the period over which the proceedings at issue extended as a whole (§§ 79, 80) and finds that the duration of the proceedings ‘covers the whole of the proceedings in issue, including the appeal proceedings’ (§ 76). In Gorou v. Greece (no. 2, Grand Chamber), no. 12686/03, § 46, judgment of 20 March 2009, the ECtHR found that there had been a violation of Article 6 of the ECHR in respect of ‘the length of the proceedings as a whole’; see, similarly, Kakamoukas and Others v. Greece (Grand Chamber), no. 38311/02, § 32, judgment of 15 February 2008, where the ECtHR takes as the basis for its calculation the ‘total length of the disputed proceedings’.

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90 – See in this regard the chronological overview in point 11 of this Opinion.

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91 – The total length of the proceedings in PVC none the less came very close to that of the present proceedings, given that the first Commission investigations took place in October 1983 (see 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, paragraph 1) and the last judicial decision was delivered in October 2002 (PVC II, cited in footnote 38).

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92 – Joined Cases C‑120/06 P and C‑121/06 FIAMM and Others v Council andCommission [2008] ECR I‑6513, paragraph 96; Case C‑440/07 P Commission v Schneider Electric [2009] ECR I‑6413, paragraph 135; Case C‑583/08 P Gogos v Commission [2010] ECR I‑0000, paragraph 30; and Case C‑480/09 P AceaElectrabel Produzione v Commission [2010] ECR I‑0000, paragraph 77.

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93 – Although this issue is also raised in other parts of the first plea in law, I am addressing the arguments put forward in this regard exclusively in the context of this third part of the first plea in law.

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94 – Paragraph 113 of the judgment under appeal; see also paragraphs 120 to 122 of that judgment.

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95 – Baustahlgewebe (cited in footnote 83, paragraph 49) and Der Grüne Punkt (cited in footnote 83, paragraph 193); with specific reference to the link with the rights of the defence, see FEG (cited in footnote 83, in particular paragraphs 42, 43 and 60 to 62) and TU (cited in footnote 83, in particular paragraphs 47, 48 and 69 to 71).

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96 – Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17); see in particular those relating to the second paragraph of Article 47 (cited above, p. 30).

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97 – In Kudła v. Poland, no. 30210/96, § 154, ECHR 2000‑XI, the Grand Chamber of the ECtHR recognised that ‘there is no prevailing pattern in the legal orders of the Contracting States in respect of remedies for excessive length of proceedings’; see also ECtHR, Simaldone v. Italy, no. 22644/03, § 78, judgment of 31 March 2009. The European Commission for Democracy through Law (Venice Commission) adopted a comparative law study in 2006 (Study No 316/2004, available on the internet at the address  http://www.venice.coe.int/docs/2006/CDL-AD(2006)036rev-f.pdf , last visited on 26 January 2011). On the different approaches adopted within the European Union, see also the Opinion of Advocate General Léger in Baustahlgewebe (cited in footnote 83, points 52 and 53).

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98 – ECtHR, Eckle v. Germany (cited in footnote 89, § 94) and Ommer v. Germany (no. 1), no. 10597/03, § 68, judgment of 13 November 2008; see also ECtHR, Sprotte v. Germany, no. 72438/01, decision of 17 November 2005.

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99 – ECtHR, Dželili v. Germany, no. 65745/01, § 103, judgment of 10 November 2005, Ohlen v. Denmark, no. 63214/00, §§ 29 and 30, judgment of 24 February 2005, and Ommer v. Germany (no. 1) (cited in footnote 98, § 68) as well as Menelaou v. Cyprus, no. 32071/04, decision of 12 June 2008; see to the same effect Eckle v. Germany (cited in footnote 89, § 67), which at least in principle recognises reduction of sentence as a means of redress. See also paragraphs 119 to 123 of Venice Commission Study No 316/2004 (cited in footnote 97).

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100 – ECtHR, Eckle v. Germany (Article 50), judgment of 21 June 1983, § 24, Series A no. 65, no. 8130/78.

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101 – ECtHR, Jussila v. Finland (Grand Chamber), no. 73053/01, § 43, ECHR 2006-XIV.

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102 – See also to this effect Article 41 of the ECHR.

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103 – The importance of the effective implementation of Articles 101 TFEU and 102 TFEU (formerly Articles 81 EC and 82 EC) was recently emphasised, for example, in Case C‑429/07 X BV [2009] ECR I‑4833, paragraphs 33 to 35, and Case C‑439/08 VEBIC [2010] ECR I‑0000, in particular paragraphs 59 and 61.

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104 – Der Grüne Punkt (cited in footnote 83, paragraph 194). See to the same effect, in relation to criminal law proceedings in general, paragraphs 228 to 232 of the Venice Commission Study (cited in footnote 97); in paragraph 240, the Venice Commission emphasises that ‘acquittal and discontinuance of the proceedings should only be applied in exceptional cases’.

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105 – Der Grüne Punkt (cited in footnote 83, paragraph 194).

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106 – Opinion of Advocate General Bot in Der Grüne Punkt (cited in footnote 83, points 305 and 306); the Court of Justice expressly reproduces those findings in paragraph 194 of its judgment in that case.

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107 – See point 88 of and footnote 92 to this Opinion.

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108 – Paragraphs 114 to 116 of the judgment under appeal.

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109 – Case C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraph 80, and Gogos v Commission (cited in footnote 92, paragraph 35).

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110 – Aalborg Portland (cited in footnote 35, paragraphs 47 to 49); Wunenburger v Commission (cited in footnote 109, paragraph 66); Sumitomo (cited in footnote 44, paragraph 38); and Commission v Schneider Electric (cited in footnote 92, paragraph 103).

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111 – The Court starts from a similar premiss in the judgments in FEG (cited in footnote 83, paragraphs 45 to 49) and TU (cited in footnote 83, paragraphs 50 to 54), which make it clear that the General Court must take into account the impact of all stages of the administrative procedure on the ability of the undertaking concerned to defend itself.

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112 –      Paragraphs 115 and 116 of the judgment under appeal.

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113 – Paragraphs 118 to 121 of the judgment under appeal (the fact that these paragraphs relate to the past judicial proceedings concerning Decision 91/298 becomes clear, in particular, in the introductory paragraph 118).

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114 – See in this regard Article 256 TFEU (formerlyArticle 225 EC), the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(1)(c) of the Rules of Procedure of the Court of Justice, as well as Aalborg Portland (cited in footnote 35, paragraph 50), the judgment of 25 October 2007 in Case C‑167/06 P Komninou and Others v Commission, paragraph 41, and Case C‑413/08 P Lafarge v Commission [2010] ECR I‑0000, paragraph 16.

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115 – On Article 6 of the ECHR and Article 6(1) TEU, see also point 28 of this Opinion.

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116 – Case C‑229/05 P PKK and KNK v Council [2007] ECR I‑439, paragraph 37; Case C‑260/05 P Sniace v Commission [2007] ECR I‑10005, paragraph 37; and Lafarge v Commission (cited in footnote 114, paragraph 17).

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117 – In the French original: ‘La requérante estime dès lors que le dépassement manifeste du délai raisonnable dans la présente procédure … ne peut qu’entraîner l’annulation pure et simple de la décision attaquée …’ (paragraph 89 of the application at first instance, cited in paragraph 47 of Solvay’s appeal).

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118 – Paragraph 209 of the application at first instance (cited in extract in paragraph 49 of Solvay’s appeal) reads: ‘[S]i, par impossible, le Tribunal devait rejeter l’ensemble des moyens d’annulation développés par la requérante, la requérante invite le Tribunal à prendre en compte … l’ensemble des considérations présentées dans la présente requête au titre des moyens d’annulation dans son appréciation de la nécessité d’infliger une amende à la requérante et du montant de celle-ci …’.

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119 – See points 21 and 24 of this Opinion.

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120 – Paragraph 49 of the judgment under appeal.

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121 – Paragraphs 296 to 303 of the judgment under appeal.

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122 – See points 21 and 65 of this Opinion.

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123 – See points 54 to 70 of this Opinion.

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124 – See point 80 of and footnote 85 to this Opinion.

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125 – Commission v Solvay (cited in footnote 2).

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126 – See in this regard the chronological overview in point 11 of this Opinion.

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127 – Solvay had already rightly pointed this out in the proceedings at first instance (see paragraph 93 of the judgment under appeal). In PVC II (cited in footnote 38, in particular paragraphs 204 and 205), the Court of Justice left this question open because the appellant had not raised any complaint in this regard.

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128 – The Court of Justice delivered its judgment in Commmission v Solvay (cited in footnote 2) in April 2000.

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129 – See point 81 of this Opinion.

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130 – On the length of the proceedings at first instance before the General Court in Case T‑58/01 and the overall assessment of the length of the proceedings, see points 176 to 189 of this Opinion.

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131 – See points 92 to 106 of this Opinion.

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132 – FEG (cited in footnote 83, paragraphs 56 to 60) and TU (cited in footnote 83, paragraphs 64, 67 and 69).

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133 – TU (cited in footnote 83, paragraph 69) and FEG (cited in footnote 83, paragraph 56).

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134 – FEG (cited in footnote 83, paragraphs 57 and 58) and TU (cited in footnote 83, paragraphs 64 to 69).

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135 – See points 21 and 31 to 49 of this Opinion.

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136 – Paragraph 49 of the judgment under appeal.

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137 – See in this regard Section IV (points 15 to 163) of this Opinion.

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138 – See in this regard point 135 of this Opinion.

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139 – See in this regard points 139 to 163 of this Opinion.

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140 – Baustahlgewebe (cited in footnote 83, paragraphs 48, 141 and 142).

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141 – Der Grüne Punkt (cited in footnote 83, paragraph 195).

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142 – Case C‑126/97 Eco Swiss [1999] ECR I‑3055, paragraph 36, and Case C‑453/99 Courage and Crehan [2001] ECR I‑6297, paragraph 20.

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143 – See in this regard the case-law cited in footnote 103 above.

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144 – See in this regard the Opinion of Advocate General Sharpston in Case 272/09 P KMEGermanyand Others v Commission [2011] ECR I‑0000, pending, in particular point 64, the Opinions of Advocate General Bot in Joined Cases C‑201/09 P and C‑216/09 P ArcelorMittalLuxembourg v Commission and Others [2011] ECR I‑0000, in particular point 41, and in Case C‑352/09 P ThyssenKrupp Nirosta v Commission [2011] ECR I‑0000, in particular point 49, as well as my Opinions in Case C‑280/06 ETI and Others [2007] ECR I‑10893, point 71, and in Case C‑97/08 Akzo Nobel and Others v Commission ECR I‑8237, point 39; see to the same effect my Opinions in FEG (cited in footnote 83, point 108) and in TU (cited in footnote 83, point 100).

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145 –      Cited in footnote 83, in particular, paragraph 48. I would point out merely in passing that the Commission itself sometimes opts to reduce the fine where it concludes that an administrative procedure which it conducted was excessively long (see in this regard FEG and TU, both cited in footnote 83, paragraph 9 in each case).

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146 – See in this regard points 104 and 105 of this Opinion.

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147 – See to this effect Baustahlgewebe (cited in footnote 83, in particular, paragraph 141).

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148 – Cited in footnote 83, paragraphs 48 and 142.

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149 – For future cases, Article 31 of Regulation No 1/2003.

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150 – See point 80 of this Opinion.

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151 – See in particular points 81 to 84 of this Opinion.

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152 – See in this regard the chronological overview in point 11 of this Opinion.

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153 – See points 147 to 151 of this Opinion.

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154 – As the language of the case is French, all the parties to the proceedings drafted their pleadings in the language in which the judgment under appeal was deliberated. A negligible amount of time was spent on translation, and then only at the beginning of the judicial proceedings for the purposes of publication in the Official Journal of the European Communities (see Article 24(6) of the Rules of Procedure of the General Court). The time required to translate the judgment under appeal for the purposes of its publication at the end of the proceedings at first instance did not prevent the General Court from delivering the version of the judgment in the language of the case and serving it on the parties as soon as it had been fully deliberated.

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155 – Paragraphs 40 to 50 of the judgment under appeal.

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156 – On 19 December 2003, the General Court invited the Commission to submit a detailed list of all the documents in the file relating to the administrative procedure; on 14 April 2005, Solvay was given access, in the Registry of the General Court, to the parts of the file which had been sent by the Commission (paragraphs 40 and 50 of the judgment under appeal). Including the period up to the submission of the Commission’s observations of 17 November 2005 on the usefulness of the relevant parts of the file for Solvay’s defence, almost two years had elapsed.

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157 – The Commission submitted its observations on 17 November 2005 and the oral procedure was opened in May 2008 (paragraphs 51 and 55 of the judgment under appeal).

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158 – By way of comparison, in Baustahlgewebe, in which 11 connected cases had been joined by the General Court for the purposes of a joint oral procedure, the Court of Justice held that there had been an infringement of the reasonable time principle because a period of 32 months had elapsed in the proceedings at first instance between the conclusion of the written procedure and the decision to open the oral procedure, and a period of 22 months had elapsed between the oral procedure and delivery of the General Court’s judgment (Baustahlgewebe, cited in footnote 83, paragraphs 45 and 46).

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159 – See in this regard my Opinion in Gogos v Commission (cited in footnote 92, point 88).

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160 – ECtHR, Pedersen and Baadsgaard v. Denmark (Grand Chamber), no. 49017/99, § 44, ECHR 2004-XI; see to the same effect ECtHR, Ringeisen v. Austria, judgment of 16 July 1971, § 110, Series A no. 13, and Hozee v. the Netherlands, judgment of 22 May 1998, § 43, Reports of Judgments and Decisions 1998-III.

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161 – PVC II (cited in footnote 38, paragraph 182); more generally, see also my Opinions in FEG (cited in footnote 83, points 108 to 112) and TU (cited in footnote 83, points 100 to 104).

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162 – ECtHR, König v. Germany, judgment of 28 June 1978, no. 6232/73, § 98, Series A no. 27, and Eckle v. Germany (cited in footnote 89, § 76).

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163 – The limitation period is five years, runs from the end of the infringement and is interrupted by any action taken for the purposes of investigation or prosecution. The absolute limitation period expires no later than the day on which a period equal to twice the limitation period has elapsed without the Commission having imposed a fine or a penalty. However, the limitation period is suspended for as long as the decision of the Commission is the subject of proceedings pending before the Court of Justice of the European Union. See, more generally, Articles 1 to 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); Article 25 of Regulation N0 1/2003 will apply in future. Advocate General Bot examines various issues relating to limitation periods and their suspension during judicial proceedings in his Opinions in ArcelorMittal Luxembourg v Commission and Others (cited in footnote 144, in particular points 66 to 81 and 245 to 251) and in ThyssenKrupp Nirosta v Commission (cited in footnote 144, in particular points 177 to 212).

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164 – See my Opinions in FEG (cited in footnote 83, point 111) and in TU (cited in footnote 83, point 103).

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165 – Cited in footnote 83, paragraphs 48 and 142.

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166 – Baustahlgewebe (cited in footnote 83, paragraphs 141 and 142).

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167 – ECtHR, Dželili v. Germany (cited in footnote 99, § 103) and Ommer v. Germany (cited in footnote 98, § 50).

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168 – See points 147 to 151 and point 179 of this Opinion.

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169 – See points 180 to 184 of this Opinion.

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170 – See points 186 and 187 of this Opinion.

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171 – See to this effect ECtHR, Eckle v. Germany (Article 50) (cited in footnote 100, § 24).

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172 – Recital 62 to the contested decision. The General Court confirmed the classification of Solvay’s participation in the cartel as ‘serious’ (paragraphs 276 and 286 of the judgment under appeal). Solvay has not contested that part of the judgment under appeal in the appeal proceedings.

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173 – See in this regard, in particular, points 135 and 163 of this Opinion.