Limburgse Vinyl Maatschappij NV (LVM) (C-238/99 P), DSM NV and DSM Kunststoffen BV (C-244/99 P), Montedison SpA (C-245/99 P), Elf Atochem SA (C-247/99 P), Degussa AG (C-250/99 P), Enichem SpA (C-251/99 P), Wacker-Chemie GmbH and Hoechst AG (C-252/99 P) and Imperial Chemical Industries plc (ICI) (C-254/99 P) v Commission of the European Communities.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• Writing for the Court: Gulmann
• ECLI: ECLI:EU:C:2002:582
• Docket Number: C-247/99,C-245/99,C-252/99,C-254/99,C-238/99,C-244/99,C-250/99
• Date: 15 October 2002
• Procedure Type: Recurso de anulación

Avis juridique important

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61999J0238

Judgment of the Court of 15 October 2002. - Limburgse Vinyl Maatschappij NV (LVM) (C-238/99 P), DSM NV and DSM Kunststoffen BV (C-244/99 P), Montedison SpA (C-245/99 P), Elf Atochem SA (C-247/99 P), Degussa AG (C-250/99 P), Enichem SpA (C-251/99 P), Wacker-Chemie GmbH and Hoechst AG (C-252/99 P) and Imperial Chemical Industries plc (ICI) (C-254/99 P) v Commission of the European Communities. - Appeal - Competition - Polyvinylchloride (PVC) - Article 85(1) of the EC Treaty (now Article 81(1) EC) - Annulment of a Commission decision - New decision - Documents predating the first decision - Res judicata - Principle of non bis in idem - Limitation - Reasonable period - Statement of reasons - Access to the file - Fair hearing - Professional secrecy - Self-incrimination - Private life - Fines. - 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.

European Court reports 2002 Page I-08375

Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

1. Court of First Instance - Organisation - Composition of chambers - Absence or inability to attend of a judge - Permanent or temporary - Not relevant

(EC Statute of the Court of Justice, Art. 15; Rules of Procedure of the Court of First Instance, Arts 10(1) and 32(1))

2. Procedure - Res judicata - Final judgment in the matter given on appeal by the Court of Justice - Scope

(EC Treaty, Art. 176 (now Art. 233 EC); EC Statute of the Court of Justice, Art. 54, para. 1)

3. Competition - Administrative procedure - Commission decision finding an infringement, adopted after annulment of an earlier decision on account of a procedural defect - Principle of non bis in idem - Whether breached - No such breach

4. Actions for annulment - Judgment granting annulment - Scope - Account to be taken of both the grounds and operative part of the judgment - Adoption of a fresh act on the basis of the valid previous preparatory acts - Permissibility

5. Community law - Principles - Rights of the defence - Scope - Competition - Administrative procedure - Scope of that principle after annulment of the first decision of the Commission - Hearing of undertakings - Consultation of Advisory Committee on Restrictive Practices and Dominant Positions - Hearing Officer

(Council Regulation No 17, Arts 10(3) and 19(1); Commission Regulation No 99/63, Arts 1 and 4)

6. Actions for annulment - Judgment granting annulment - Effects - Annulment of a Commission decision finding that the competition rules have been infringed - Effects vis-à-vis addressees who have not brought proceedings - No such effects

(EC Treaty, Arts 85 and 189 (now Arts 81 EC and 249 EC) and Art. 173 (now, after amendment, Art. 230 EC))

7. Competition - Administrative procedure - Limitation periods in proceedings - Suspension - Commission decision which is the subject of proceedings before the Court of Justice - Scope

(Council Regulation No 2988/74, Arts 2 and 3)

8. Community law - Principles - Action within a reasonable time - Scope - Competition - Administrative procedure - Judicial proceedings - Criteria of assessment

(Council Regulation No 17)

9. Appeals - Pleas in law - Infringement of the obligation to act within a reasonable period in administrative procedures relating to competition - Assessment falling within the jurisdiction of the Court of First Instance - Assessment to be made in the light of the specific circumstances - Review by the Court of Justice - Limits

(Art. 225 EC; EC Statute of the Court of Justice, Art. 51, para. 1)

10. Competition - Administrative procedure - Powers of the Commission in investigations - Investigations carried out pursuant to an authorisation - Voluntary cooperation of an undertaking - Consequences of an ability to show undue interference by a public authority

(Council Regulation No 17, Art. 14(2))

11. Community law - Principles - Rights of the defence - Observance in administrative procedure - Competition - Decision requiring information, addressed to an undertaking - Infringement of the privilege against self-incrimination - Assessment to be made by the Court of First Instance in the light of the specific circumstances - Review by the Court of Justice - Limits

(Council Regulation No 17, Art. 11(2) and (5))

12. Competition - Administrative procedure - Powers of the Commission in investigations - Use of information obtained during an investigation relating to a different proceeding - Limits

(Council Regulation No 17, Arts 14(2) and (3) and 20(1))

13. Competition - Administrative procedure - Access to the file - Purpose - Observance of the rights of the defence - Infringement - Consequences

(Council Regulation No 17, Art. 19(1); Commission Regulation No 99/63, Arts 3 and 7 to 9)

14. Appeals - Pleas in law - Infringement of the rights of the defence resulting from the refusal to grant access to the documents used as evidence against the enterprise in an administrative procedure applying competition rules - Plea requiring an appraisal of the facts falling within the exclusive jurisdiction of the Court of First Instance and not subject, save for distortion, to review by the Court of Justice

(Art. 225 EC; EC Statute of the Court of Justice, Art. 51)

15. Procedure - Measures of organisation of procedure - Oral procedure - Invitation to submit common pleas collectively - Permissibility

(Rules of Procedure of the Court of First Instance, Art. 64(2))

16. Procedure - Introduction of new pleas in law in the course of the proceedings - Plea based on matters coming to light during the proceedings - Matters coming to light following a measure of organisation of procedure granting access to the Commission's file - Permissibility

(Rules of Procedure of the Court of First Instance, Art. 48(2), subpara. 1)

17. Procedure - Reply - Procedural requirements - Summary of the pleas in law which the application is based on - Reference to arguments put forward during the oral procedure in relation to pleas in law contained in the application - Admissibility

(Rules of Procedure of the Court of First Instance, Arts 44(1)(c) and 48(2))

18. Appeals - Pleas in law - Plea in law alleging failure of the Court of First Instance to respond to a plea - Detailed rules on the presentation of appeals

(Rules of Procedure of the Court of Justice, Art. 112(1), subpara. 1(c))

19. Acts of the institutions - Statement of reasons - Obligation - Scope - Decision applying competition rules - Decision imposing penalty adopted following annulment of a previous decision with the same purpose

(EC Treaty, Arts 85(1) and 190 (now Arts 81(1) EC and 253 EC) and Art. 89 (now, after amendment, Art. 85 EC))

20. Competition - Fines - Decision imposing fines - Obligation to state reasons - Scope - Indication of the factors enabling the Commission to assess the gravity and duration of the infringement

(EC Treaty, Art. 190 (now Art. 253 EC); Council Regulation No 17, Art. 15(2), subpara. 2)

21. Competition - Agreements, decisions and concerted practices - Prejudice to competition - Criteria of assessment - Anti-competitive object - Sufficient to establish the existence thereof

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

22. Appeals - Jurisdiction of the Court of Justice - Challenge, on grounds of fairness, to the assessment by the Court of First Instance in regard to the amount of fines imposed on undertakings which have infringed the Treaty competition rules - Excluded - Assessment called in question for reasons based on infringement of the principle of non-discrimination - Permissibility

(EC Treaty, Art. 85(1) (now Art. 81(1) EC))

23. Actions for annulment - Jurisdiction of the Community judicature - Actions concerning penalties imposed on undertakings which have infringed the Treaty competition rules - Unlimited jurisdiction - Judgment granting annulment without exercise of that jurisdiction - Effect

(EC Treaty, Art. 172 (now Art. 229 EC); Council Regulation No 17, Art. 17)

Summary

$$1. For the purpose of the application of the rules laid down in Article 15 of the Statute of the Court of Justice and Articles 10(1) and 32(1) of the Rules of Procedure of the Court of First Instance, which relate to the composition of the chambers of the Court First Instance hearing a case, it is not the permanent or temporary nature of the inability of a judge to attend which is decisive. If a temporary absence or inability to attend justifies the change in the composition to allow an uneven number of members to sit, the same must apply, a fortiori, to the case of a permanent inability to attend as a result of, for example, the expiry of a member's term of office.

( see paras 35-38 )

2. Where the Court of Justice itself gives final judgment on the dispute in accordance with Article 54 of the Statute of the Court of Justice by accepting one or more pleas raised by an applicant, it does not automatically settle all the points of fact and law raised by that applicant.

The authority of res judicata attaching to a judicial decision which itself limits the obligations imposed under Article 176 of the EC Treaty (now Article 233 EC) on an institution whose act has been declared void extends only to matters of fact and law actually or necessarily settled by that judicial decision.

( see paras 44, 47-48 )

3. The principle of non bis in idem, which is a fundamental principle of Community law also enshrined in Article 4(1) of Protocol No 7 to the European Convention on Human Rights, precludes, in competition matters, an undertaking from being found guilty or proceedings from being brought against it a second time on the grounds of anti-competitive conduct in respect of which it has been penalised or declared not liable by a previous unappealable decision.

The application of that principle therefore presupposes that a ruling has been given on the question whether an offence has in fact been committed or that the legality of the assessment thereof has...