Court of Justice of the European Communities (including Court of First Instance Decisions)

BASF AG, DSM NV, Elf Atochem SA, Enichem SpA, Hoechst AG, Hüls AG, Imperial Chemical Industries plc, Limburgse Vinyl Maatschappij NV, Montedison SpA, Société [a]rtésienne de [v]inyle SA, Shell International Chemical Co., Ltd, and Wacker Chemie GmbH infringed Article 85 of the EC Treaty (together with Norsk Hydro [A/S] and Solvay & Cie) by participating for the periods identified in this Decision in an agreement and/or concerted practice originating in about August 1980 by which the producers supplying PVC in the Community took part in regular meetings in order to fix target prices and target quotas, plan concerted initiatives to raise price levels and monitor the operation of the said collusive arrangements.

The undertakings named in Article 1 which are still involved in the PVC sector in the Community (apart from Norsk Hydro [A/S] and Solvay which are already the subject of a valid termination order) shall forthwith bring the said infringement to an end (if they have not already done so) and shall henceforth refrain in relation to their PVC operations from any agreement or concerted practice which may have the same or similar object or effect, including any exchange of information of the kind normally covered by professional secrecy by which the participants are directly or indirectly informed of the output, deliveries, stock levels, selling prices, costs or investment plans of other individual producers, or by which they might be able to monitor adherence to any express or tacit agreement or to any concerted practice covering price or market-sharing inside the Community. Any scheme for the exchange of general information to which the producers subscribe concerning the PVC sector shall be so conducted as to exclude any information from which the behaviour of individual producers can be identified, and in particular the undertakings shall refrain fromexchanging between themselves any additional information of competitive significance not covered by such a system.

The following fines are hereby imposed on the undertakings named herein in respect of the infringement found in Article 1:

(i) BASF AG: a fine of ECU 1 500 000;

(ii) DSM NV: a fine of ECU 600 000;

(iii) Elf Atochem SA: a fine of ECU 3 200 000;

(iv) Enichem SpA: a fine of ECU 2 500 000;

(v) Hoechst AG: a fine of ECU 1 500 000;

(vi) Hüls AG: a fine of ECU 2 200 000;

(vii) Imperial Chemical Industries plc: a fine of ECU 2 500 000;

(viii) Limburgse Vinyl Maatschappij NV: a fine of ECU 750 000;

(ix) Montedison SpA: a fine of ECU 1 750 000;

(x) Société [a]rtésienne de [v]inyle SA: a fine of ECU 400 000;

(xi) Shell International Chemical Company Ltd: a fine of ECU 850 000;

(xii) Wacker Chemie GmbH: a fine of ECU 1 500 000.'

II - The actions brought before the Court of First Instance and the contested judgment

- joined the cases for the purposes of the judgment;

- annulled Article 1 of the PVC II decision in so far as it found that Société artésienne de vinyle had participated in the infringement complained of after the first half of 1981;

- reduced the fines imposed on Elf Atochem, Société artésienne de vinyle and ICI to EUR 2 600 000, EUR 135 000 and EUR 1 550 000 respectively;

- dismissed the remainder of the applications;

- ruled on the costs.

III - Forms of order sought in the appeals

- annul in whole or in part the contested judgment and end the procedure or, in the alternative, refer the case back to the Court of First Instance for resumption of the proceedings;

- annul in whole or in part the PVC II decision;

- annul the fines imposed on the appellants or reduce the amounts thereof;

- order the Commission to pay the costs of the proceedings at first instance and on appeal.

- annul the contested judgment;

- annul the PVC II decision;

- refer the case back to the Court of First Instance;

- reduce the amount of the fine to a minimal sum;

- order the Commission to pay the costs of the proceedings at first instance and on appeal.

- annul the contested judgment and give a final ruling on the dispute;

- order the Commission to pay the costs.

- annul the contested judgment in so far as it dismisses its application and orders it to pay the costs;

- annul Articles 1, 2 and 3 of the PVC II decision in so far as they concern it;

- order the Commission to pay the costs of the proceedings at first instance and on appeal.

- annul the parts of the contested judgment challenged by it and consequently annul the PVC II decision;

- in the alternative, annul those parts of the contested judgment which adversely affect it and consequently annul or reduce the fine imposed;

- order the Commission to pay the costs of the proceedings at first instance and on appeal.

- annul paragraphs 4 and 5 of the operative part of the contested judgment in so far as they concern them;

- annul the PVC II decision in so far as it concerns them;

- in the alternative, reduce the amount of the fines imposed on them;

- in the further alternative, refer the case back to the Court of First Instance for a new ruling;

- order the Commission to the pay the costs or, in the event of a referral back to the Court of First Instance, reserve the issue of costs for a decision by that court.

- annul the contested judgment in so far as it concerns ICI;

- annul the PVC II decision in so far as it concerns ICI or, failing that, refer the case back to the Court of First Instance;

- annul the fine, which was reduced to EUR 1 550 000 by the Court of First Instance, or further reduce the amount thereof;

- order the Commission to pay the costs of the proceedings at first instance and on appeal.

- dismiss the appeals;

- order the appellants to pay the costs.

IV - The pleas in law for annulment of the contested judgment

- infringement of the principle of res judicata;

- infringement of the principle non bis in idem;

- infringement of the principle that decisions must be adopted within a reasonable time;

- invalidity of the procedural measures preceding the PVC I decision;

- need for new administrative procedural measures following annulment of the PVC I decision;

- insufficient statement of reasons for the dismissal of the plea in law alleging infringement by the Commission of Article 190 of the EC Treaty (now Article 253 EC) with respect to its decision to adopt the PVC II decision following annulment of the PVC I decision;

- infringement of the privilege against self-incrimination;

- infringement of the rights of the defence as a result of insufficient access to the Commission's file;

- expiry of the limitation period applying to proceedings.

- failure to observe the principle of the inviolability of the home;

- infringement of professional secrecy and of the rights of the defence.

- failure to respond to its plea concerning a definitive transfer to the Community judicature of the power to impose penalties following the decision of the Commission;

- need for new administrative procedural measures following annulment of the PVC I decision;

- failure by the Court of First Instance to consider the economic context;

- expiry of the limitation period applying to proceedings;

- infringement of the right to a fair hearing, of Articles 48(2) and 64 of the Rules of Procedure of the Court of First Instance and of the principle of personal liability, resulting from the way in which the oral procedure was organised;

- infringement of the right to a fair hearing and of Article 48(2) of the Rules of Procedure of the Court of First Instance during the examination of the evidence;

- infringement of Articles 10(1) and 32(1) of the Rules of Procedure of the Court of First Instance;

- failure by the Commission to observe the scope of the obligation to state reasons for the method of calculating the fine;

- disproportionality and unfairness of the fine having regard to the gravity and duration of the infringement;

- infringement of the principle of equal treatment with respect to the amount of the fine;

- erroneous dismissal as inadmissible of its claims seeking payment of damages by the Commission.

- failure to respond to its plea alleging differences between the PVC I and PVC II decisions;

- invalidity of the procedural measures preceding the PVC I decision;

- need for new administrative procedural measures following annulment of the PVC I decision;

- infringement of the rights of the defence as a result of insufficient access to the Commission's file.

- infringement of the principle that decisions must be adopted within a reasonable time;

- invalidity of the procedural measures preceding the PVC I decision;

- need for new administrative procedural measures following annulment of the PVC I decision;

- failure to respond to its complaint of a lack of intervention by the Hearing Officer prior to the adoption of the PVC II decision;

- infringement of the rights of the defence as a result of insufficient access to the Commission's file;

- failure by the Commission to take account of the scope of the obligation to state reasons for the method of calculating the fine.

- infringement of Article 44(1)(c) of the Rules of Procedure of the Court of First Instance;

- infringement of the principle of res judicata;

- invalidity of the procedural measures preceding the PVC I decision;

- need for new administrative procedural measures following annulment of the PVC I decision;

- erroneous reasons for the dismissal of the plea alleging infringement by the Commission of Article 190 of the EC Treaty with respect to its decision to adopt the PVC II decision following annulment of the PVC I decision;

- error in law by the Court of First Instance as regards the conclusions to be drawn from its finding of a lack of any correlation between two documents on which the Commission's allegation was based;

- attribution of collective responsibility;

- infringement of the rights of the defence as a result of insufficient access to the Commission's file;

- incorrect attribution of the infringement to the appellant as the holding company of a group and incorrect exclusion by the Court of First Instance of the relevance of the holding company's turnover to the calculation of the amount of the fine;

- infringement of Article 15(2) of Regulation No 17 resulting from an error on the part of the Court of First Instance as regards the correlation between the turnover in the business year preceding the PVC II decision and the amount of the fine;

- failure by the Commission to observe the scope of the obligation to state reasons for the method of calculating the fine;

- misinterpretation and misapplication of Community law and inadequate assessment of the evidence concerning the relationship between the fine imposed on the appellant and the appellant's market share;

- infringement of the principle of proportionality in fixing the amount of the fine.

- infringement of Articles 10(1) and 32(1) of the Rules of Procedure of the Court of First Instance;

- incomplete examination of the facts;

- inconsistent and insufficient grounds for the contested judgment with respect to consideration of the documentary evidence;

- distortion of the evidence;

- need for new administrative procedural measures following annulment of the PVC I decision;

- infringement of Article 85(1) of the Treaty and Article 15(2) of Regulation No 17.

- infringement of the principle of res judicata;

- infringement of the principle of non bis in idem;

- infringement of the principle that decisions must be adopted within a reasonable time;

- invalidity of the procedural measures preceding the PVC I decision;

- need for new administrative procedural measures following annulment of the PVC I decision and incompleteness of the file submitted for deliberation by the college of Commissioners at the time of adoption of the PVC II decision;

- erroneous reasoning for the rejection of the plea alleging infringement by the Commission of Article 190 of the Treaty with respect to its decision to adopt the PVC II decision following annulment of the PVC I decision;

- infringement of professional secrecy and of the rights of the defence;

- expiry of the limitation period applicable to proceedings;

- failure by the Court of First Instance to annul or reduce the fine as a result of the infringement of the principle that decisions must be adopted within a reasonable time.

V - The appeals

A - Pleas in law concerning procedure and form

1. The plea raised by Montedison, Wacker-Chemie and Hoechst alleging infringement of Articles 10(1) and 32(1) of the Rules of Procedure of the Court of First Instance

2. The plea in law raised by LVM, DSM, Enichem and ICI alleging infringement of the principle of res judicata

3. The plea raised by LVM, DSM and ICI alleging infringement of the principle of non bis in idem

4. The plea raised by LVM, DSM, Elf Atochem, Degussa, Enichem and ICI alleging invalidity of the procedural measures taken prior to adoption of the PVC I decision

5. The pleas raised by all the appellants alleging the need for new administrative procedural measures following the annulment of the PVC I decision and by ICI alleging the incompleteness of the file submitted for deliberation by the college of Commissioners at the time of adoption of the PVC II decision

(a) The absence of a fresh statement of objections

(b) The absence of a fresh hearing of the undertakings concerned

of the Commission did not in itself render new hearings necessary, since those differences did not involve the consideration of new objections.

(c) The objection that the Advisory Committee was not re-consulted

'Before consulting the Advisory Committee on Restrictive Practices and Dominant Positions, the Commission shall hold a hearing pursuant to Article 19(1) of Regulation No 17'.

(d) The absence of any fresh intervention by the Hearing Officer

'The Hearing Officer shall ensure that the hearing is properly conducted and thus contribute to the objectivity of the hearing itself and of any decision taken subsequently. He shall seek to ensure in particular that in the preparation of draft Commission decisions in competition cases due account is taken of all the relevant facts, whether favourable or unfavourable to the parties concerned.

In performing his duties he shall see to it that the rights of the defence are respected, while taking account of the need for effective application of the competition rules in accordance with the regulations in force and the principles laid down by the Court of Justice.'

(e) The composition of the file submitted to the college of Commissioners for deliberation

6. The plea raised by LVM, DSM, Montedison and ICI alleging expiry of the limitation period for penalising infringements

7. The plea raised by LVM, DSM, Degussa and ICI alleging infringement of the principle that decisions are to be adopted within a reasonable time

(a) The complaints based on Article 6 of the ECHR

- it is a general principle of Community law that the Commission must act within a reasonable time in adopting decisions following administrative proceedings relating to competition policy;

- it is therefore unnecessary to rule on the question whether Article 6(1) of the ECHR is, as such, applicable to administrative proceedings before the Commission relating to competition policy,

the Court of First Instance responded implicitly but necessarily to the plea based on the direct applicability of Article 6 of the ECHR.

(b) The complaints relating to the penalty for infringement of the principle that decisions are to be adopted within a reasonable time

- infringement of the principle that the Commission must act within a reasonable time, if established, would justify annulment of the PVC II decision only in so far as it also constituted an infringement of the rights of defence of the undertakings concerned;

- where it has not been established that the undue delay has adversely affected the ability of the undertakings concerned to defend themselves effectively, failure to comply with the principle that the Commission must act within areasonable time cannot affect the validity of the administrative procedure and can therefore be regarded only as a cause of damage capable of being relied on before the Community judicature in the context of an action based on Article 178 and the second paragraph of Article 215 of the EC Treaty (now Article 235 EC and the second paragraph of Article 288 EC).

(c) The complaints relating to observance of the principle that action must be taken within a reasonable period

(i) Complaints regarding the administrative procedure conducted by the Commission

- Division of the administrative procedure into two stages

- Failure to consider the duration of the administrative procedure in the light of all the criteria for assessing what constitutes a reasonable period

- Infringement of the principle that decisions are to be adopted within a reasonable time on account of the duration of the administrative procedure

'128 The facts which had to be elucidated by the Commission were highly complex owing to the type of conduct in question and its range across the geographical market concerned, covering the whole area of activity in the common market of the principal PVC producers.

129 Another factor contributing to the difficulty in establishing the facts was the confused mass of documents collected by the Commission. The documents obtained from its investigations at the premises of various petrochemical product manufacturers during the period concerned and the replies of the latter to the questions put by the Commission under Article 11 of Regulation No 17 constituted a particularly bulky file. Moreover, amongst the myriad documents obtained during the administrative procedure, the Commission had to distinguish between those belonging to the PVC file and those belonging to the file investigated in parallel in the neighbouring PEBD [low density polyethylene] sector, itself the subject, like other thermoplastic products at the same period, of an investigation and a procedure for determining infringements imputed to undertakings amongst which many are also parties to this case. It should also be noted that the file of the case which led to the [PVC II] Decision contained, on a first administrative numbering, a series of documents comprising 1072 pages, and, on another numbering, more than 5000 pages, excluding internal Commission documents.

130 Finally, the complexity of the facts to be elucidated arose from the difficulty of establishing proof of the participation of undertakings in the alleged concerted practice and from the number of undertakings involved. On that point, the [PVC II] Decision states that 17 undertakings took part in the infringement during the period covered ... (point 2, second subparagraph, of the Decision) and that 14 undertakings had been addressees of the original decision.'

'133 ... That is not sufficient to justify a complaint of undue delay. The objections were notified to the undertakings concerned at the beginning of April 1988. The undertakings replied to the statement of objections in June 1988. Apartfrom Shell, which did not so request, the undertakings to which the statement of objections was addressed were heard between 5 and 8 September 1988 and on 19 September 1988. The Advisory Committee on Restrictive Practices and Dominant Positions delivered its opinion on the preliminary draft Commission decision on 1 December 1988, and the Commission adopted its original decision 20 days later. The [PVC II] Decision itself was adopted 42 days after delivery of the judgment of 15 June 1994.'

(ii) The complaint that the Court of First Instance failed to consider the judicial proceedings prior to adoption of the PVC II decision from the standpoint of the principle that action must be taken within a reasonable time

'123 In this case, the administrative procedure before the Commission lasted for a total of some 62 months. The period during which the Community judicature examined the legality of the [PVC I] decision and the validity of the judgment of the Court of First Instance [of 27 February 1992] cannot be taken into account in determining the duration of the procedure before the Commission.'

- did not allege that the duration of the judicial proceedings leading to the annulment of the PVC I decision had been excessive;

- neither attempted to show nor even pleaded any specific delay in those proceedings which was attributable either to the Community judicature or to the Commission itself on account of its conduct during those proceedings.

(iii) The complaint of infringement by the Court of Justice of the principle that action is to be taken within a reasonable time on account of the length of the judicial proceedings culminating in the contested judgment

(iv) The complaint of infringement of the principle that decisions are to be adopted within a reasonable time on account of the total duration of the administrative and judicial proceedings in the present case

Arguments of the parties

Findings of the Court

8. The plea raised by DSM alleging a failure to observe the principle of the inviolability of the home

- the case-law of the European Court of Human Rights relating to the interferences by the public authorities referred to in Article 8(2) of the ECHR, on which the appellant relied, concerns measures taken by those authorities against the will of a suspect by way of coercion;

- the judgments in Hoechst, Dow Benelux and Dow Chemical Ibérica, which DSM considers to have been superseded by that case-law, examined generally the nature and scope of the powers of investigation conferred by Article 14 of Regulation No 17 before ruling on the validity of decisions to investigate under Article 14(3), which, in the circumstances described in Article 14(6), permit recourse to coercive measures in the event of opposition from an undertaking to an investigation ordered by a decision.

9. The plea raised by LVM and DSM alleging infringement of the privilege against self-incrimination

- either the requests for information made under Article 11(2) of Regulation No 17, irrespective of the addressees, inasmuch as such measures could not be challenged by way of a direct action for annulment;

- or those decisions requiring information which were addressed, under Article 11(5) of Regulation No 17, to undertakings other than the appellants and against which the appellants were unable to bring an action for annulment.

- Regulation No 17 does not give an undertaking under investigation any right to evade the investigation on the ground that the results thereof might provide evidence of an infringement by it of the competition rules;

- on the contrary, it imposes on the undertaking an obligation to cooperate actively, which implies that it must make available to the Commission all information relating to the subject-matter of the investigation;

- in the absence of any right to remain silent expressly embodied in Regulation No 17, certain limitations on the Commission's powers of investigation during the preliminary inquiry are nevertheless implied by the need to safeguard the rights of the defence, which is a fundamental principle of Community law;

- in that connection, whilst, in order to ensure the effectiveness of Article 11(2) and (5) of Regulation No 17, the Commission is entitled to compel an undertaking to provide all necessary information concerning such facts as may be known to it and to disclose to it, if necessary, such documents relating thereto as are in its possession, even if the latter may be used to establish, against it or another undertaking, the existence of anti-competitive conduct, the Commission may not compel an undertaking to provide it with answers which might involve an admission on its part of the existence of an infringement which it is incumbent on the Commission to prove.

10. The plea in law raised by DSM and ICI alleging failure to comply with the obligation of professional secrecy and infringement of the rights of the defence

11. The plea raised by LVM, DSM, Elf Atochem, Degussa and Enichem alleging infringement of the rights of the defence as a result of insufficient access to the Commission's file

'1062 The [PVC II] decision shows, however, that those circumstances were fully taken into account. Thus the [Commission] does not claim that prices increased consistently during the infringement period, or even that they remained stable during that period. On the contrary, the tables annexed to the [PVC II] decision show that prices did not cease to fluctuate, reaching their lowest level during the first three months of 1982. The Commission thus expressly recognised that the price initiatives had met with limited success and were occasionally regarded as failures ([PVC II] decision, points 22 and 36 to 38). It also indicated some of the reasons for those results: in addition to factors outside producers' control (anticipated purchases by consumers, imports from non-member countries, fall in demand, especially in 1981 and 1982, special discounts ...), it found that certain producers sometimes gave preference totheir sales volumes to the detriment of their prices ([PVC II] decision, points 22 and 38) and that, given the characteristics of the market, it would have been futile to attempt concerted price initiatives unless conditions were favourable to an increase ([PVC II] decision, point 38). Nor did the Commission ignore the existence of aggressive conduct on the part of some undertakings ([PVC II] decision, point 22). Likewise, it acknowledged that the sharing the pain, Alcudia and DSM documents, whilst evidencing the existence of a compensation mechanism between producers, also supported the conclusion that those mechanisms did not function correctly ([PVC II] decision, point 11). It was in the light of those considerations as a whole that the Commission determined the amount of the fine to be imposed on the applicants.

1063 Moreover, both Appendices P1 to P70 and the documents sent by the Commission to the parties in May 1988 already supplied a plentiful documentary basis enabling the applicants to argue, as indeed they have done, the existence of the circumstances which they allege today.'

- the Commission took into account the circumstances which, according to Degussa, could have been useful to its defence;

- Degussa was able to rely on those circumstances during the administrative procedure, and indeed did so, as a result of the numerous documents containing passages showing that the PVC producers did not pursue a uniform pricing policy and found themselves in relatively fierce competition with each other, which documents it expressly acknowledges receiving from the Commission on 3 May 1988 as documents 'capable of being used in defence'.

12. The plea raised by Montedison alleging infringement of the right to a fair hearing, of Articles 48(2) and 64 of the Rules of Procedure of the Court of First Instance and of the principle of personal liability as a result of the organisation of the oral procedure

13. The plea raised by Montedison alleging infringement of the right to a fair hearing and of Article 48(2) of the Rules of Procedure of the Court of First Instance during the consideration of the evidence

14. The plea raised by Enichem alleging infringement of Article 44(1)(c) of the Rules of Procedure of the Court of First Instance

- the procedural complaints raised in the joint submissions had already been included in its application;

- the arguments put forward at the hearing were part of the procedure and the Court of First Instance was aware of them since they had been pleaded before it;

- the rebuttals submitted by the applicants, in particular Enichem, to the arguments put forward by the Commission in its defence had already been set out in the joint submissions;

- the reference in the reply to the texts of the joint submissions necessarily meant that the appellant adopted the entire content thereof as its own so that the Court of First Instance did not need to seek and identify in the annexes the pleas on which the application or the reply were based.

15. The plea raised by Wacker-Chemie and Hoechst alleging incomplete appraisal of the facts

16. The plea raised by Wacker-Chemie and Hoechst alleging distortion of the evidence

17. The pleas raised by Montedison, Elf Atochem, Degussa, Wacker-Chemie and Hoechst alleging failure to respond to certain pleas as well as contradictory and insufficient grounds of the contested judgment

(a) The plea raised by Montedison alleging failure to deal with its plea alleging a definitive transfer to the Community judicature of the power to impose penalties following the Commission's decision

(b) The plea raised by Elf Atochem alleging a failure to respond to its plea that there were differences between the PVC I and PVC II decisions

(c) The plea raised by Degussa alleging a failure to respond to its complaint concerning non-intervention by the Hearing Officer prior to adoption of the PVC II decision

(d) The plea raised by Wacker-Chemie and Hoechst alleging that the grounds of the contested judgment are contradictory and insufficient as regards consideration of the documentary evidence

18. The plea raised by LVM, DSM, Enichem and ICI alleging insufficient or erroneous grounds for the rejection of a plea alleging infringement by the Commission of Article 190 of the Treaty in choosing to adopt the PVC II decision following annulment of the PVC I decision

- no complaint has been raised as to that second limb of the obligation to state reasons;

- the matters in respect of which the appellants allege a failure to state reasons do not include that limb either, since the Commission is not obliged to foresee all issues which might be raised in a subsequent dispute and to respond thereto in advance in its decision;

- the issues relating to those matters may, if necessary, be the subject of a subsequent judicial review.

19. The plea raised by Montedison, Degussa and Enichem alleging a failure to have regard to the scope of the Commission's obligation to state the reasons for the method of calculating the fine

Arguments of the appellants

Findings of the Court

- the importance of the industrial product in question;

- the value of the sales relating thereto in western Europe;

- the number of undertakings involved;

- the level of participation of, and the role played by, each of the undertakings;

- the respective importance of the undertakings on the PVC market;

- the duration of the participation of each undertaking in the infringement.

- the undertakings had suffered substantial losses during much of the infringement period;

- most of them had already had heavy fines imposed upon them for their participation in an infringement in the thermoplastics sector (polypropylene) during much the same period.

20. The plea raised by Montedison alleging erroneous rejection as inadmissible of its claim for an order requiring the Commission to pay damages

B - The pleas on the substance

1. The plea raised by Montedison alleging a failure by the Court of First Instance to consider the economic context

2. The plea raised by Enichem complaining that collective responsibility was imputed to it

- that provision is infringed where those meetings have such an aim and are thus intended to organise artificially the operation of the market;

- the liability of a particular undertaking in respect of the infringement is properly established where it participated in those meetings with knowledge of their aim, even if it did not proceed to implement any of the measures agreed at those meetings.

- Enichem had participated in meetings of rival undertakings, including those held between August 1980 and 1984;

- the aim of those meetings was in fact anti-competitive as they were intended to achieve the conclusion of agreements, in particular, on price levels and volume monitoring even though the discussions did not result in firm price commitments.

3. The plea raised by Enichem alleging erroneous attribution of the infringement to it as the holding company of a group and wrongful disregard by the Court of First Instance of the relevance of the turnover of the holding company for the purposes of calculating the amount of the fine

'We shall bring this question to a close by stating that the above is not a sterile debate constituting an end in itself but the essential basis of our subsequent arguments concerning the amount of the fine, which was obviously calculated by reference to the turnover of the holding company, which was far higher than that of the operating company. Hence the applicant's interest in the annulment of the [PVC II] decision, on account of its having attributed liability for the infringement, and having been addressed, to Enichem and not, in so far as may be appropriate, to Enichem Anic.'

4. The plea raised by Enichem alleging that the Court of First Instance erred in law as regards the consequences of its finding that there was no correlation between two documents forming the basis of the Commission's accusation

Aspects of the PVC II decision at issue before the Court of First Instance

- the core evidence showing the existence of the cartel was provided by the 1980 planning documents, by the evidence of a system of regular meetings between ostensible competitors and by the documents relating to quota and compensation schemes;

- that core evidence in fact not only demonstrated the existence of a common scheme but also identified virtually all the participants in the cartel since almost all of the undertakings were named in the 1980 documents and BASF and ICI had identified most of those which attended meetings;

- confirmation of that evidence was to be found in the documents discovered in the 1987 investigations, particularly at the premises of Solvay and Atochem.

The disputed grounds of the contested judgment

'The argument that the two planning documents were unconnected cannot be accepted. In the first place, they were both found at ICI's premises and were physically attached to each other. Secondly, the Checklist comprised a list of certain topics which, in a general way, concerned mechanisms for monitoring sales volumes and regulating prices. Those topics are themselves considered, with greater precision, in the Response to Proposals. Moreover, some of the more detailed points occur in both documents. That applies to the reference to a three-month stabilisation period, the possibility of a price rise in the final quarter of 1980, the need to find an arrangement to take account of new production capacity, or again the possibility of variances on predetermined market shares, with the same reference to a threshold of 5% and to the reservations expressed in that regard. ...'

'... As the above examination has shown, the Commission has produced numerous documents establishing the existence of the practices described in the [PVC II] decision. The fact also remains that the planning documents, and especially the Checklist, which emanate from a senior ICI executive, clearly reveal the existence of a blueprint for a cartel on the part of that undertaking, which at the time those documents were produced was one of the main European PVC producers; moreover, the practices envisaged in those documents were detected in the West European PVC market in the following weeks. ...'

'In that regard, even if the documents produced by the Commission in support of its factual findings concerning practices on the PVC market do not indeed make anyreference to the planning documents, the Court considers that the close correlation between those practices and the practices described in those documents sufficiently demonstrates the existence of a link between them.'

Arguments of the appellant

Findings of the Court

- the infringement was regarded as having begun in 'about' August 1980;

- that was taken as the commencement date both by the Commission and by the Court of First Instance because the meetings between the undertakings began in the course of that month;

- with respect to Enichem, the Court of First Instance, in the exercise of its unfettered discretion, ruled in paragraphs 675, 677, 931 and 932 of the contested judgment that the appellant had participated in meetings held over several years from August 1980;

- moreover, the appellant itself acknowledged before that court, in the arguments in its application concerning the frequency of its participation in those meetings (point V.C.I., seventh paragraph) that 'it is at best possible to maintain that, at the beginning and at the end of the period in question, Enichem participated in some meetings'.

5. The plea raised by Wacker-Chemie and Hoechst alleging infringement of Article 85(1) of the Treaty and Article 15(2) of Regulation No 17

6. The plea raised by Enichem alleging infringement of Article 15(2) of Regulation No 17 as a result of an error made by the Court of First Instance as regards the correlation between the turnover in the business year preceding the PVC II decision and the amount of the fine

7. The plea raised by Enichem alleging infringement of the principle of proportionality in fixing the amount of the fine

8. The plea raised by Montedison alleging that the fine is disproportionate and unfair having regard to the gravity and duration of the infringement

9. The plea raised by Montedison alleging infringement of the principle of equal treatment as regards the amount of the fine

10. The plea raised by Enichem alleging misinterpretation and misapplication of Community law and insufficient assessment of the evidence with respect to the ratio between the fine imposed on the appellant and its market share

Arguments of the appellant

Findings of the Court

'Enichem maintains that its share of sales amounted to 12.3% in 1984, which is clearly below that shown in the Atochem table. That objection cannot be accepted. Enichem was invited to state on what basis it had determined its market share for 1984, but was not able to offer any explanations concerning the factors on which it relied. The Court notes, moreover, that, in the annexes to its application (Volume III, Annex 2), Enichem produced a table recapitulating its sales, year by year, for the period from 1979 to 1986, from which it may be deduced that the market shares were calculated in an identical manner for each of those years. At the request of the Court of First Instance as a measure of organisation of the procedure, the applicant tried to explain how it had calculated its market share for the years 1979 to 1982. In the result, the applicant merely stated its sales figures for each of those years without any evidence in support. Moreover, those sales figures related not to sales of European producers in western Europe but to figures for European consumption, which were necessarily higher since they included imports. That substantially reduced the market share claimed by the applicant.'

'1189 Finally, Enichem comments that the Commission attributed to it an average market share of 15% between 1980 and 1984, significantly higher than the actual average and even higher than the market share it had in 1984 (12.3%).

...

1199 As regards Enichem, the applicant maintains that its average market share was of the order of 2.7% in 1980 and 1981, 5.5% in 1982, 12.8% in 1983 and 12.3% in 1984, so that its average market share for the whole of the period was slightly more than 7%.'

'1200 However, as the Court has already held (paragraph 615 above), the figures produced by the applicant are not sufficiently certain.

1201 Secondly, contrary to what the applicant maintains, the Commission did not attribute to it an average market share of 15% from 1980 to 1984. It is expressly stated in the table produced by the Commission that that market share concerns the year 1984. Moreover, a footnote states that that share is the result of the acquisition of Montedison's PVC business in March 1983, which, as is not denied, substantially increased the applicant's market share. Indeed, if the Commission had proceeded on the basis of an average market share of 15% over the whole of the period, the fine imposed on the applicant would have been higher than those imposed on Elf Atochem and Solvay, which were in the same position as the applicant in terms of both the duration of the infringement and their role in it, but whose market shares as established by the Commission were below 15%. However, it is apparent, on the contrary, that the fine imposed on Enichem is substantially below that imposed on those two undertakings.

1202 Thirdly, the market share indicated in the individual particulars annexed to the statement of objections, namely 12%, does not contradict the share indicated in the table produced by the Commission; the first concerns the year 1983 asa whole, whereas the second concerns only the market share after the acquisition of Montedison's PVC business.

1203 Finally, it appears that the applicant has been ordered to pay a fine representing 10.6% of the total fine. In those circumstances, taking account of the methods of calculation used by the Commission, it appears that the applicant has been attributed an average market share in western Europe of less than 10%.

1204 In the absence of any serious challenge by the applicant, there is therefore no reason to reduce the fine imposed on it.'

11. The plea raised by ICI alleging failure by the Court of First Instance to annul or reduce the fine as a result of infringement of the principle that action must be taken within a reasonable time

VI - The consequences of the partial annulments of the contested judgment

A - The plea raised by Montedison alleging infringement of its right of access to the Commission's file

- a 'tariff ... of [ITL] 825-840/kg since January 1981';

- a 'relatively good situation in Italy [at the end of January], despite everything' in which 'an average price of the order of [ITL] 760/kg was obtained';

- 'decisions to achieve the tariff price at least for 1 March'.

- an 'attempted increase between May and June [1982]';

- a 'considerable rise from September [1982]' resulting from 'a more rigorous policy pursued by some producers (in particular Solvic) with the aim of ending a very worrying situation' and which 'produced satisfactory results'.

- referred to the 'aggressive' conduct of certain undertakings;

- expressly acknowledged that the price initiatives had been only partially successful and, in some cases, had even been considered failures;

- stated some of the reasons for those results.

- it is stated that, 'in several cases', customers who had previously had the choice of several national suppliers 'will find it difficult to accept being tied to one single supplier';

- it is added that 'from the end of 1982, we have been contacted by traditional MTE and Enoxy customers seeking information on our ability to supply them regularly'.

- the extract produced, while referring to a 'Table 6' by way of illustration of the sharing of sales between the various producers, is not accompanied by a copy of that table, so that it cannot be established whether the figures on which the analysis is based are estimates;

- the only sentence in the document which is cited by Montedison in its observations ('We estimate that about 15 units ... have been assigned to the sale of PVC in Italy ...') does not support its denials of exchanges of data specific to the sales realised.

B - The plea raised by Montedison alleging a definitive transfer to the Community judicature of the power to impose penalties following the Commission's decision

Costs