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Document 62000CJ0204

Summary of the Judgment

Judgment of the Court (Fifth Chamber) of 7 January 2004.
Aalborg Portland A/S (C-204/00 P), Irish Cement Ltd (C-205/00 P), Ciments français SA (C-211/00 P), Italcementi - Fabbriche Riunite Cemento SpA (C-213/00 P), Buzzi Unicem SpA (C-217/00 P) and Cementir - Cementerie del Tirreno SpA (C-219/00 P) v Commission of the European Communities.
Appeal - Competition - Cement market - Article 85(1) of the EC Treaty (now Article 81(1) EC) - Jurisdiction of the Court of First Instance - Rights of the defence - Access to the file - Single and continuous infringement - Liability for an infringement - Evidence of participation in the general agreement and measures of implementation - Fine - Determination of the amount.
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.

Keywords
Summary

Keywords

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Summary

1. Under Article 225 EC and Article 51, first paragraph, of the EC Statute of the Court of Justice, an appeal must be limited to points of law and must lie on grounds of lack of competence of the Court of First Instance, a breach of procedure before it which adversely affects the interests of the applicant or infringement of Community law by the Court of First Instance. An appeal may therefore be based only on grounds relating to the infringement of rules of law, to the exclusion of any appraisal of the facts. The Court of First Instance has exclusive jurisdiction, first, to establish the facts except where the substantive inaccuracy of its findings is apparent from the documents submitted to it and, second, to assess those facts. It follows that the appraisal of the facts by the Court of First Instance does not constitute, save where the clear sense of the evidence produced before it is distorted, a question of law which is subject, as such, to review by the Court of Justice in an appeal.

see paras 47-49

2. Article 225 EC, Article 51, first paragraph, of the EC Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice provide that where the appellant alleges distortion of the evidence by the Court of First Instance, he must indicate precisely the evidence alleged to have been distorted by that Court and show the errors of appraisal which, in his view, led to that distortion.

The requirements resulting from those provisions are not satisfied by an appeal which simply repeats the pleas in law and arguments already put forward before that Court, including those which were based on facts expressly rejected by that Court. Such an appeal amounts in reality to no more than a request for re-examination of the application submitted to the Court of First Instance, which the Court of Justice does not have jurisdiction to undertake.

see paras 50-51

3. For Article 85 of the Treaty (now Article 81(1) EC) to apply, a change in the legal form and name of an undertaking does not necessarily have the effect of creating a new undertaking free of liability for the anti-competitive behaviour of its predecessor when, from an economic point of view, the two are identical.

Such identity exists where the activities previously carried out by a company before it became a holding company are resumed by a newly-formed company in which the original company holds half of the capital.

see paras 59, 357-358

4. In carrying out the task conferred on it by Article 89 of the Treaty (now, after amendment, Article 85 EC), the Commission is entitled to question the undertaking under investigation about the conduct of all the other undertakings concerned and Regulation No 17 places the undertaking under an obligation to cooperate actively, which, when a request for information is addressed to it, is limited only by its right to refuse to provide answers whereby it would admit the existence of the infringement, which it is incumbent upon the Commission to prove.

Those considerations also apply as regards the questioning of an association of undertakings concerning the individual conduct of its members. Accordingly, to acknowledge the existence of a right to silence on the part of the association which would have the effect of protecting its members by preventing it from giving evidence against them would go beyond what is necessary in order to preserve the rights of defence of undertakings, and would constitute an unjustified hindrance to the Commission ' s performance of its duty to ensure that the rules on competition within the common market are observed.

see paras 65, 207-208

5. The statement of objections is a preparatory document containing assessments of fact and of law which are purely provisional in nature, since the decision closing the administrative procedure need not necessarily reproduce all the objections in the statement of objections. For that reason, the Commission may, and even must, take into account the factors emerging from the administrative procedure in order, inter alia, to abandon such objections as have been shown to be unfounded.

In such a case, the Commission is not required to afford the parties concerned the opportunity to express their views on the dropping of the objections, since communication to the parties concerned of further objections is necessary only if the result of the investigations leads the Commission to take new facts into account against the undertakings or to alter materially the evidence for the contested infringements.

see paras 67, 192

6. Compliance with the adversarial principle, as with the other procedural guarantees laid down in Article 6(1) of the European Convention on Human Rights, relates only to judicial proceedings before a " tribunal" and there is no general, abstract principle that the parties must in all instances have the opportunity to attend the interviews carried out or to receive copies of all the documents taken into account in the case of other persons.

Accordingly, in the context of an administrative procedure before the Commission in application of the competition rules, the Commission is not required to afford the undertaking concerned the opportunity to cross-examine a particular witness, such as the author of documents containing incriminating evidence, and to analyse his statements at the investigation stage.

see paras 70, 200

7. A corollary of the principle of respect for the rights of the defence, the right of access to the file means that in an administrative procedure in application of the competition rules 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 evidence and exculpatory evidence, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved.

None the less, the failure to communicate a document constitutes a breach of the rights of the defence only if the undertaking concerned shows, first, that the Commission relied on that document to support its objection concerning the existence of an infringement and, second, that the objection could be proved only by reference to that document. In particular, it is for the undertakings concerned to show that the result at which the Commission arrived in its decision would have been different if a document which was not communicated to that undertaking and on which the Commission relied to make a finding of infringement against it had to be disallowed as evidence. On the other hand, where an exculpatory document has not been communicated, the undertaking concerned must only establish that its non-disclosure was able to influence, to its disadvantage, the course of the proceedings and the content of the decision of the Commission, in so far as it would have been able to put forward evidence which did not agree with the findings made by the Commission.

see paras 68, 71, 73-75

8. Where an undertaking tacitly approves of an initiative which is unlawful because it is anti-competitive, without publicly distancing itself from its content or reporting it to the administrative authorities, it effectively encourages the continuation of the infringement and compromises its discovery. That complicity constitutes a passive mode of participation in the infringement which is capable of rendering the undertaking liable. Nor is the fact that the undertaking does not act on the outcome of a meeting having an anti-competitive purpose such as to relieve it of responsibility for the fact of its participation in a cartel, unless it has publicly distanced itself from what was agreed within the cartel.

see paras 84-85

9. The amount of the fine imposed in respect of the infringement of the competition rules is set according to the gravity of the infringement and, where appropriate, to its duration. The gravity of the infringement has to be determined by reference to criteria such as the particular circumstances of the case, its context and the dissuasive effect of the fines. Objective factors such as the content and duration of the anti-competitive conduct, the number of incidents and their intensity, the extent of the market affected and the damage to the economic public order must be taken into account. The relative importance and market share of the undertakings responsible and also any repeated infringements must also be taken into consideration.

In particular, where an infringement has been committed by a number of undertakings, the relative gravity of the participation of each of them must be examined. This may be established in consideration in particular of continuous adherence to an anti-competitive agreement by participation or collaboration in one or more of the measures implementing that agreement and of the impact of the conduct on competition and on the partitioning of home markets.

see paras 89-92, 374

10. The decision imposing fines on undertakings for infringing the competition rules cannot be annulled in whole or in part on the basis of lack of proper access to the administrative file unless it was found that that lack of proper access prevented the undertakings concerned from perusing documents which were likely to be of use in their defence and thus infringed their rights of defence.

In the context of an action brought before the Court of First Instance against that decision, it is open to that Court to order measures of organisation of procedure and to arrange full access to the file, in order to determine whether the Commission ' s refusal to disclose or communicate a document may be detrimental to the defence of the undertaking concerned.

As that examination is limited to a judicial review of the pleas in law, it has neither the object nor the effect of replacing a full investigation of the case in the context of an administrative procedure. In effect, belated disclosure of documents in the file does not put the undertaking which has brought the action back into the situation it would have been in if it had been able to rely on those documents in presenting its written and oral observations to the Commission and does not remedy the infringement of the rights of the defence at the stage of the administrative procedure.

see paras 100-104

11. The question whether the Court of First Instance applied correct criteria in order to determine whether the Commission ' s refusal to grant access to a document during an administrative procedure in application of the competition rules adversely affected the undertaking ' s rights of defence is a question of law amenable to review by the Court of Justice, in the context of an appeal. The same applies to the question whether a document must be qualified as an " exculpatory document" capable of being of use in an undertaking ' s defence.

see para. 125

12. In the context of the administrative procedure in application of the competition rules, it cannot be for the Commission alone, who notifies any objections and adopts the decision imposing a penalty, to determine the documents of use in the defence of the undertaking concerned. However, the Commission is allowed to preclude from the file evidence which has no relation to the allegations of fact and of law in the statement of objections and which therefore has no relevance to the investigation. As that criterion is based on an objective link, it does not preclude documents containing exculpatory evidence or even indications of the context of the market or the conduct of the operators present on that market, provided that it relates objectively to any objections adopted against the undertaking concerned.

see paras 126, 128

13. An infringement of Article 85(1) of the Treaty (now Article 81(1) EC) may result not only from an isolated act but also from a series of acts or from continuous conduct, although one or several elements of that series of acts or continuous conduct may also constitute in themselves and taken in isolation an infringement of that provision. It follows that, when those different actions form part of an " overall plan" , because their identical object distorts competition within the common market, the Commission is entitled to impute responsibility for those actions on the basis of participation in the infringement considered as a whole.

Likewise, the distinction between a " single agreement" and a " single criminal design" is of no relevance, since for the purposes of applying Article 85(1) of the Treaty there is no need to take account of the actual effects of an agreement where it appears that its aim is to restrict, prevent or distort competition within the common market.

Where it is established that an undertaking is aware of the offending conduct of the other participants in the cartel or that it may reasonably foresee it and that it is prepared to take the risk, it is regarded as responsible, throughout the entire period of its participation in that infringement, for conduct put into effect by other undertakings in the context of the same infringement.

The fact that an undertaking has not taken part in all aspects of an anti-competitive scheme or that it played only a minor role in the aspects in which it did participate is of no relevance for the purpose of establishing the existence of the infringement on its part, as such a factor must be taken into consideration only when the gravity of the infringement is assessed and if and when it comes to determining the fine.

see paras 258, 261, 292, 328

14. The application of the principle ne bis in idem is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected. The same person cannot therefore be sanctioned more than once for a single unlawful course of conduct designed to protect the same legal asset.

It follows that there is no breach of the principle ne bis in idem where the Commission imposes a sanction on an undertaking for conduct different from that imputed to the same undertaking and forming the subject-matter of the decision of a national competition authority.

see paras 338-340

15. The obligation to state reasons does not require the Court of First Instance to provide an account that follows exhaustively and one by one all the reasoning articulated by the parties to the case. The reasoning may therefore be implicit on condition that it enables the persons concerned to know why the measures in question were taken and provides the competent court with sufficient material for it to exercise its power of review in an appeal.

see para. 372

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