Keywords
Summary

Keywords

1. Appeals — Grounds — Procedural irregularity — Decision founded on facts or documents of which one of the parties is unaware — Infringement of the rights of the defence — (ECSC Statute of the Court of Justice, Art. 51)

2. Procedure — Duration of the procedure before the Court of First Instance — Reasonable period — Factors to be taken into account

3. Appeals — Grounds — Erroneous assessment of the facts — Inadmissible — Appeal dismissed — (Art. 32d(1) CS; ECSC Statute of the Court of Justice, Art. 51)

4. Procedure — Measures of inquiry — Request for production of a document — Discretion of the Court of First Instance — (Rules of Procedure of the Court of First Instance, Arts 49 and 65(b))

5. ECSC — Agreements, decisions and concerted practices — Fines — Amount — Determination thereof — Criteria — Anti-competitive effects of the infringement — Criterion not conclusive — (ECSC Treaty, Art. 65(5))

6. ECSC — Agreements — Concerted practice — Meaning — Criteria of coordination and cooperation — Interpretation — Agreement on the exchange of information — (ECSC Treaty, Art. 65(1); Art. 81(1) EC)

7. ECSC — Agreements, decisions and concerted practices — Administrative procedure — Right of access to the Commission's file — Objectives — Ensuring effective exercise of the rights of the defence — Infringement — Penalised, despite access being given during the judicial proceedings, if there are documents in the file which may be useful for the undertaking's defence — ( ECSC Treaty, Art. 65(1))

8. Acts of the institutions — Statement of reasons — Obligation — Scope — Decision imposing fines for infringement of the competition rules — Merely desirable that the method of calculating the fine be disclosed — ( ECSC Treaty, Arts 15, first para., and 65(5))

Summary

1. The principle of respect for the rights of the defence is a fundamental principle of Community law. That principle is infringed where a judicial decision is based on facts and documents which the parties themselves, or one of them, have not had an opportunity to examine and on which they have therefore been unable to comment.

see para. 19

2. The general principle of Community law that everyone is entitled to a fair hearing, and in particular the right to legal process within a reasonable period, is applicable in the context of proceedings brought against a Commission decision imposing fines on an undertaking for infringement of competition law.

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

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

see paras 41-43

3. It is clear from Article 32d(1) CS and Article 51 of the ECSC Statute of the Court of Justice that an appeal lies on a point of law only. Therefore, the Court of First Instance has sole jurisdiction to find and appraise the relevant facts and to assess the evidence, except where those facts and that evidence have been distorted.

see para. 65

4. It is for the Community Court to decide, in the light of the circumstances of the case and in accordance with the provisions of the Rules of Procedure on measures of inquiry, whether it is necessary for a document to be produced. As regards the Court of First Instance, it follows from Article 49, read in conjunction with Article 65(b), of its Rules of Procedure that a request for production of documents is a measure of inquiry which the Court may order at any stage of the proceedings if it deems them necessary to ascertain the truth.

see para 67, 70

5. An infringement of Article 65(1) of the ECSC Treaty may be found and a fine imposed under Article 65(5) even in the absence of anti-competitive effects. The effect that an agreement or a concerted practice may have had on normal competition is therefore not a conclusive criterion for assessing the proper amount of a fine. Factors relating to the intentional aspect, and therefore to the purpose of the conduct, may be more significant than those relating to its effects, particularly where they relate to infringements which are intrinsically serious, such as price-fixing and market-sharing.

see para. 80

6. An agreement on the exchange of information is incompatible with the rules on competition if it reduces or removes the degree of uncertainty as to the operation of the market in question with the result that competition between undertakings is restricted.

The criteria of coordination and cooperation necessary for determining the existence of a concerted practice, far from requiring an actual `plan' to have been worked out, are to be understood in the light of the concept inherent in the provisions of the EC and ECSC Treaties on competition, according to which each trader must determine independently the policy which he intends to adopt on the common market and the conditions which he intends to offer to his customers.

While it is true that this requirement of independence does not deprive traders of the right to adapt themselves intelligently to the existing or anticipated conduct of their competitors, it does, however, strictly preclude any direct or indirect contact between such traders, the object or effect of which is to create conditions of competition which do not correspond to the normal conditions of the market in question, regard being had to the nature of the products or services offered, the size and number of the undertakings and the volume of the said market.

see paras 105-107

7. Access to the file in competition cases is intended, in particular, to enable the addressees of statements of objections to acquaint themselves with the evidence in the Commission's file so that, on the basis of that evidence, they can express their views effectively on the conclusions reached by the Commission in its statement of objections. The right of access to the Commission's file is therefore designed to ensure effective exercise of the rights of the defence.

It follows that failure to respect that right during the procedure prior to adoption of a decision can, in principle, cause the decision to be annulled if the rights of defence of the undertaking concerned have been infringed. In such a case, the infringement committed is not remedied by the mere fact that access to the file was made possible during the judicial proceedings relating to an action by which annulment of the contested decision is sought. Where access has been granted at that stage, the undertaking concerned does not have to show that, if it had had access to the non-disclosed documents, the Commission decision would have been different in content, but only that those documents could have been useful for its defence.

see paras 125-128

8. The purpose of the obligation to state the reasons on which an individual decision is based is to enable the Court to review the legality of the decision and to provide the person concerned with sufficient information to make it possible to ascertain whether the decision is well founded or whether it is vitiated by a defect which may permit its legality to be contested.

With regard to the obligation to state reasons for a decision imposing fines on several undertakings for an infringement of the Community competition rules, statements of figures relating to the calculation of those fines, however useful and desirable such figures may be, are not essential; in any event, the Commission cannot, by mechanical recourse to arithmetical formulas alone, divest itself of its own power of assessment.

The fact that it was possible to detect a number of errors in the calculation only once those figures had been provided is insufficient for a finding that the statement of reasons in the contested decision is inadequate since, when reviewing such a decision, the Community Court may order that all the evidence which it requires be submitted to it in order to enable it to carry out a detailed review of the method by which the fine was calculated.

see paras 145, 149-150