Summary
Parties
Grounds
Operative part
Keywords
++++
1. Application for interim measures - Conditions of admissibility - Admissibility of the main application - Irrelevant - Limits
(EEC Treaty, Arts 185 and 186; Rules of Procedure of the Court of First Instance, Art. 104(2) )
2. Application for interim measures - Suspension of operation - Interim measures - Conditions for granting - Serious and irreparable harm (EEC Treaty, Arts 185 and 186; Rules of Procedure of the Court of First Instance, Art. 104(2) )
Summary
1. If, in proceedings concerning an application for interim measures, it is contended that the main application is manifestly inadmissible, it is for the court hearing the application for interim measures to establish that the application reveals prima facie grounds for concluding that there is a certain probability that it is admissible.
2. Since the annulment of certain acts forming part of a procedure undertaken by an institution renders the whole of the procedure illegal and places the institution under an obligation to reopen the procedure, an applicant against whom such a procedure is initiated has no grounds for claiming that it would suffer serious and irreparable damage as a result of the fact that those acts might be annulled after the adoption by the institution concerned of its final decision on conclusion of the procedure initiated by it.
Parties
In Cases T-10/92 R,
Cimenteries CBR SA, whose registered office is at Brussels, Belgium, represented by Michel Waelbroeck, Alexandre Vandencasteele and Denis Waelbroeck, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 4 Avenue Marie-Thérèse,
T-11/92 R,
Blue Circle Industries plc, whose registered office is at London, United Kingdom, represented by Paul Lasok and Vivien Rose, Barristers, and Graham Child, Solicitor of the Supreme Court, with an address for service in Luxembourg at the Chambers of Messrs Elvinger and Hoss, 15 Côte d' Eich,
T-12/92 R,
Syndicat National des Fabricants de Ciments et de Chaux, whose registered office is at Paris, France, represented by Edouard Didier and Jean-Claude Rivalland, of the Paris Bar, with an address for service in Luxembourg at the Chambers of Marc Loesch, 8 Rue Zithe,
T-14/92 R,
Eerste Nederlandse Cement-Industrie NV and Vereniging Nederlandse Cementindustrie, whose registered offices are at 's-Hertogenbosch, the Netherlands, represented by M.B.W. Biesheuvel, of the Hague Bar, with an address for service in Luxembourg at the Chambers of Luc Frieden, 62 Avenue Guillaume,
and T-15/92 R,
Fédération de l' Industrie Cimentière asbl, whose registered office is at Brussels, Belgium, represented by Hans van Houtte and Onno W. Brouwer, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Marc Loesch, 8 Rue Zithe,
applicants,
v
Commission of the European Communities, represented by Julian Currall and Berend J. Drijber, members of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Roberto Hayder, a representative of the Commission' s Legal Service, Wagner Centre, Kirchberg,
defendant,
APPLICATIONS for interim measures under Articles 185 and 186 of the Treaty establishing the European Economic Community, seeking the suspension of the procedure initiated by the Commission in Cases IV/27.997 - CPMA, and IV/33.126 and IV/33.322 - Cement, pending the judgment of the Court on the substance of the case,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES
makes the following
Order
Grounds
Facts
1 By application lodged at the Registry of the Court of First Instance on 12 February 1992, Cimenteries CBR SA (hereinafter "CBR"), brought an action under the second paragraph of Article 173 of the EEC Treaty seeking the annulment of the Commission' s decision of 15 January 1992 refusing to communicate various documents requested by CBR in order to enable it to exercise effectively its right to defend itself against the statement of objections sent to it by the Commission in Cases IV/27.997 - CPMA, and IV/33.126 and IV/33.322 - Cement.
2 By a separate document registered at the Court on the same day, the applicant also submitted an application for interim measures under Articles 185 and 186 of the EEC Treaty and Article 105(2) of the Rules of Procedure of the Court of First Instance seeking the suspension of the procedure initiated by the Commission pending judgment on the substance of the case and the suspension of that procedure, without awaiting the observations of the Commission, pending a decision on the application for interim measures.
3 By application lodged at the Court Registry on 14 February 1992, Blue Circle Industries plc (hereinafter "Blue Circle"), brought an action under the second paragraph of Article 173 of the EEC Treaty seeking the annulment of the decision or decisions whereby the Commission refrained from communicating the entire contents of the statement of objections, refused access to all the relevant documents in the file and fixed as final date for lodging a reply to the statement of objections 24 February 1992 (or 28 February 1992 for companies undertaking to lodge 20 copies of their reply).
4 By a separate document registered at the Court on the same day, the applicant also submitted an application for interim measures under Articles 185 and 186 of the EEC Treaty and Article 105(2) of the Rules of Procedure of the Court of First Instance seeking the suspension of the procedure initiated by the Commission pending judgment on the substance of the case and such further or other relief as may preserve the applicant' s position pending judgment in the main action.
5 By application lodged at the Court Registry on 17 February 1992, the Syndicat National des Fabricants de Ciments et de Chaux (hereinafter "SNFCC") brought an action under Articles 173 and 174 of the EEC Treaty seeking the annulment of the Commission' s decision, embodied in its letters of 23 and 27 December 1991 and 10 January 1992, refusing the applicant access to the file.
6 By a separate document registered at the Court on the same day, the applicant also submitted an application for interim measures under Articles 185 and 186 of the EEC Treaty seeking, primarily, the suspension, pending the judgment of the Court on the substance of the case, of the operation of the Commission' s decision fixing the expiry of the period for the lodging of a reply by the parties referred to in the statement of objections in Cases IV/27.997 - CPMA, and IV/33.126 and IV/33.322 - Cement; in the alternative and as an provisional measure, the suspension of the procedure initiated by the Commission; and, finally, the immediate suspension of the administrative procedure, without awaiting the Commission' s observations, pending a decision on the application for interim measures.
7 By application lodged at the Court Registry on 17 February 1992, Eerste Nederlandse Cement-Industrie NV (hereinafter "ENCI") and Vereniging Nederlandse Cementindustrie (hereinafter "VNC"), brought an action under Article 173 of the EEC Treaty seeking the annulment of the decision or decisions of 24 January 1992 and 12 February 1992, whereby the Commission refused:
(i) to postpone the final date for answers to the statement of objections addressed to the applicants until the expiry of a period of at least two months following the dispatch of the statement of objections shortly to be addressed to them by the Commission concerning the "Cement en Beton Stichting" (hereinafter "CBS") agreement;
(ii) to allow the applicants until 28 March 1992 to submit their observations in response to the statement of objections; and
(iii) to specify the exact nature and basis of the objections raised against VNC.
8 By a separate document registered at the Court on the same day, the applicants also submitted an application for interim measures seeking, first, the suspension of the procedure initiated by the Commission pending the Court' s ruling on the substance of the case or until the Commission respects the right to a fair hearing and, secondly, the immediate suspension of that procedure, without awaiting the Commission' s observations, pending a decision on the application for interim measures.
9 By application lodged at the Court Registry on 17 February 1992, the Fédération de l' Industrie Cimentière (hereinafter "FIC") brought an action under Article 173 of the EEC Treaty seeking the annulment of the Commission' s decisions of 29 November 1991, 27 January 1992 and 12 February 1992 refusing:
(i) to allow the applicant a reasonable period of at least two months within which to reply jointly to the statement of objections sent to it by the Commission in Cases IV/27.997 - CPMA, and IV/33.126 and IV/33.322 - Cement and to that which the Commission intends to send it concerning the CBS agreement;
(ii) to provide the applicant with a clear and complete explanation of the objections which the Commission is raising against it;
(iii) to allow the applicant access to all the non-confidential documents in the file; and
(iv) to send the applicant certain chapters of the statement of objections.
10 By a separate document registered at the Court on the same day, the applicant also submitted an application for interim measures under Articles 185 and 186 of the EEC Treaty and Article 105(2) of the Rules of Procedure of the Court of First Instance seeking, first, the suspension of the procedure initiated by the Commission pending the Court' s ruling on the substance of the case or until the Commission respects the right to a fair hearing and, secondly, the immediate suspension of that procedure, without awaiting the Commission' s observations, pending a decision on the application for interim measures.
11 Following the communication to the applicants by the Commission, by letter of 17 February 1992, of the postponement of the final date for lodging a reply to the statement of objections until 23 March 1992 and, exceptionally, until 27 March 1992 for companies undertaking to lodge 20 copies of their replies, the applicants ENCI and VNC withdrew, by letter of 18 February 1992, their requests for the annulment of the decisions whereby the Commission refused to extend the period for lodging a reply to the statement of objections until 28 March 1992.
12 The Commission submitted its written observations on the applications for interim measures on 27 February 1992. The parties presented oral argument on 11 March 1992.
13 Before it is considered whether the applications for interim measures submitted to the Court are well founded, it is necessary to outline the context of these cases and, in particular, the essential details of the factual background to the disputes before the Court as they appear from the pleadings lodged by the parties and their oral explanations given at the hearing on 11 March 1992.
14 On 25 April 1989, the Commission, acting on its own initiative, carried out a number of checks in the offices of some ten undertakings or associations of undertakings in several Member States, as part of an investigation into the existence of agreements or concerted practices within the European cement industry. Checks were also carried out on other undertakings or associations of undertakings over the subsequent days and weeks.
15 On the basis of the documents obtained during the course of those checks and of the information provided by the undertakings and associations of undertakings concerned under Article 11 of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the EEC Treaty (Official Journal, English Special Edition 1959-1962, p. 87), the Commission concluded that a system of agreements or concerted practices probably existed, at both national and international levels, between the European cement producers, supported by certain national and international trade associations, the purpose of which was, essentially, to share out the markets of the Member States, to maintain separations between those markets, and to limit imports from other Member States and from non-member countries.
16 In November 1991, therefore, the Commission sent a statement of objections to 76 undertakings or associations of undertakings, alleging infringements of Article 85(1) of the EEC Treaty and informing them that fines might be imposed upon them.
17 In its statement of objections, the Commission draws a distinction, essentially, between two types of objection, to wit, conduct at an international level - including meetings within Cembureau, a European association bringing together the various national federations, and the implementation of a number of actions defined at those meetings - and conduct at a national level - aimed at sharing the national markets out between producers within the relevant Member State alone and at limiting imports.
18 The statement of objections is divided into two parts, each part being divided in turn into a number of chapters. Part I, entitled "The Facts", comprises nine chapters. The first two chapters deal with "The Cement Market" and "International Cement Organizations" respectively, and each of the remaining seven is devoted to a different national market. Part II, entitled "Legal Assessment", is itself divided into three further sections, the first of which, relating to Article 85(1) of the EEC Treaty, comprises ten chapters. The first three chapters concern the agreements and practices described in Chapter 2 in Part I ("International Cement Organizations"), while each of the remaining seven relates to the agreements and practices set out in one of the seven chapters in Part I examining the individual national markets. The two remaining sections of Part II concern the non-applicability of Article 85(3) of the EEC Treaty and the applicability of Article 15(2) of Regulation No 17 respectively.
19 Although it is a single document, the full text of the statement of objections was not communicated to each of the 76 undertakings and associations of undertakings. Only the chapters concerning conduct at an international level (Chapters 1, 2 and 10 to 12) and sections B and C of Part II of the statement of objections were communicated to all the undertakings and associations of undertakings. The chapters concerning conduct on a national level (Chapters 3 to 9 and 13 to 19) were sent only to the undertakings and associations of undertakings established in the Member State in question.
20 Together with the chapters concerning them, the addressees of the statement of objections received a full table of contents to the statement of objections and a list of all the files indicating the documents to which they could have access.
21 The Commission has stated before the Court that each of the addressees of the statement of objections had access to all the evidence in the Commission' s possession relating to the chapters of the statement of objections communicated to it and concerning it, except for internal and confidential documents. It is also clear from the explanations given by the parties before the Court that documents obtained by the Commission in the exercise of the powers conferred upon it by Regulation No 17 were not made available to the addressees of the statement of objections unless those documents had been used against them.
22 After receiving the statement of objections, a number of undertakings and associations of undertakings, including the applicants, requested the Commission, inter alia, to communicate to them the chapters missing from the text of the statement of objections as sent to each of them, and to allow them access to the complete file, with the exception of internal or confidential documents.
23 When the Commission refused to communicate the chapters missing from the text of the statement of objections as sent to each of the addressees or to allow them access to documents in the file other than those which they were already able to consult, the applicants brought the present actions before the Court of First Instance and sought the adoption of the interim measures identified above.
24 At the hearing on 11 March 1992, the President of the Court of First Instance asked the parties to submit their oral observations on the possibility of joining the cases for the purposes of the order on the applications for interim measures. The parties did not raise any objection to such joinder.
25 Since Cases T-10/92 R, T-11/92 R, T-12/92 R, T-14/92 R and T-15/9 R are related in their subject-matter, they must be joined for the purposes of the order on the applications for interim measures.
Law
26 Under Articles 185 and 186 of the EEC Treaty, in conjunction with Article 4 of the Council Decision of 24 October 1988 establishing a Court of First Instance of the European Communities, this Court may, if it considers that circumstances so require, order that application of the contested act be suspended or prescribe any necessary interim measures.
27 Article 104(2) of the Rules of Procedure of the Court of First Instance provides that applications concerning interim measures of the kind referred to in Articles 185 and 186 of the EEC Treaty are to state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Such measures must be of an interim nature in that they must not prejudge the decision on the substance of the case.
28 It must be noted, as a preliminary point, that since, following the initiation of the present proceedings, the Commission has extended the period for lodging a reply to the statement of objections until 23 or 27 March 1992, the circumstances which might have justified, pursuant to Article 105(2) of the Rules of Procedure of the Court of First Instance, the provisional suspension of the administrative procedure even before the Commission had submitted its observations no longer prevail, and that the applications made by the applicants to that effect have thus become devoid of purpose.
29 In these cases, the applicants claim, essentially, in support of their applications, that the Commission has seriously infringed their right to a fair hearing inasmuch as it has failed to have regard to the judgment of the Court of First Instance of 17 December 1991 (Case T-7/89 Hercules v Commission [1991] ECR II-1711, paragraph 54), in accordance with which "the Commission has an obligation to make available to the undertakings involved in Article 85(1) proceedings all documents, whether in their favour or otherwise, which it has obtained during the course of the investigation, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved".
30 In particular, the applicants claim that the Commission is preventing them from acquainting themselves with the full text of the statement of objections which it has adopted, is unjustifiably refusing to make all the relevant documents available to them, and has set a time limit for lodging a reply to the statement of objections which is insufficient in view of the complexity of the case.
31 With regard to the admissibility of these actions, the applicants claim, in particular, that the situation in the present case is completely different from that in the IBM case (Case 60/81 IBM v Commission [1981] ECR 2639) inasmuch as, in contrast to a statement of objections which is a preparatory document expressing a provisional position, the decisions contested here are measures definitively laying down the position of the Commission, the legal effects of which are binding on the addressees and affect their interests. Blue Circle further considers that the measures contested in the action lack even the appearance of legality and that there is no prevailing reason why such an illegal situation should be allowed to continue.
32 In the opinion of the applicants, the obligation of lodging a reply to the statement of objections without the right to a fair hearing being respected gives rise to serious and irreparable damage inasmuch as their rights would be irretrievably jeopardized if in a case such as the present the Court of First Instance were to give its judgment on the substance of the case after the applicants had submitted their written and oral observations on the statement of objections and even perhaps after the Commission had taken its decision on the substance of the case. The applicants further maintain that it is clear from the settled case-law of the Court of Justice (order of 28 November 1966 in Case 29/66 R Gutmann v EAEC Commission [1967] ECR 241) that an application for interim measures is justified when, if the measures were not granted, the final judgment would become devoid of purpose - that is to say when it would no longer be able to safeguard the applicant' s interests or rights.
33 The applicants further state that it is clear from the case-law of both the Court of Justice and the Court of First Instance that the condition of urgency is also met when the existence of a situation intolerable for the public interest is demonstrated (order of the Court of Justice in Case 792/79 R Camera Care v Commission [1980] ECR 119, paragraph 19; judgment of the Court of First Instance of 24 January 1992 in Case T-44/90 La Cinq v Commission [1992] ECR II-1, at paragraph 28). In the present circumstances, the fact that the Commission has disregarded the case-law of the Court of First Instance concerning access to the file is a situation intolerable for the public interest, inasmuch as it is in the interests of the sound administration of justice to avoid the need to recommence proceedings once they have been closed following, for instance, a ruling by a Community court declaring the final decision void on the ground of an infringement by the Commission of the right to a fair hearing.
34 The Commission considers that the main actions are manifestly inadmissible and that, although the question of the admissibility of the main action should not in principle be examined in the context of an application for interim measures lest the substance of the case should be prejudged, it is settled case-law that it is for the court hearing the application for interim measures to establish that the application reveals prima facie grounds for concluding that there is a certain probability that it is admissible (most recently, the order of the President of the Court of Justice of 27 June 1991 in Case C-117/91 R Bosman v Commission [1991] ECR I-3353).
35 In the Commission' s opinion it is clear that the main applications are manifestly inadmissible from the fact, in the first place, that they are directed against the statement of objections itself, whereas such a possibility is clearly precluded by the case-law of the Court of Justice (IBM v Commission, cited above) and, secondly, moreover, that the various letters or "decisions" contested do not constitute measures which can be contested under Article 173 of the EEC Treaty.
36 The Commission also stresses that the various arguments put forward by the applicants against the statement of objections in the present applications, concerning in particular the contents of the statement of objections, the insufficient time allowed for the submission of their observations and the fact that the Commission reserves the right to raise further subsequent objections, were clearly rejected by the Court of Justice in the IBM case, as is evident from paragraph 4 of that judgment.
37 The Commission further states that it is clear from the very wording of Article 2(1) of Regulation No 99/63/EEC of the Commission of 25 July 1963 on the hearings provided for in Article 19(1) and (2) of Council Regulation No 17 (Official Journal, English Special Edition 1963-1964, p. 47), the Commission is under no obligation to inform the undertaking to which the statement of objections is addressed of objections which do not concern that undertaking. With regard to the documents relied upon in support of such objections, the Commission considers not only that it is not obliged to make those documents available to other undertakings but that it is even precluded from so doing under Article 20 of Regulation No 17, since they have been obtained by virtue of the powers of investigation conferred upon it by Regulation No 17 and are thus covered by professional secrecy. The Commission is not obliged, under pain of losing the possibility of relying on the document, to communicate a document to the addressee of a statement of objections unless it intends to use that document against the undertaking. In the present cases, the various addressees of the statement of objections were free to acquaint themselves with all the evidence in the possession of the Commission relating to those chapters of the statement of objections which were communicated to them and which concerned them.
38 The Commission further denies that the most recent case-law cited by certain of the applicants - in particular the judgments of the Court of Justice in Case 53/85 AKZO Chemie v Commission [1986] ECR 1965, Case 374/87 Orkem v Commission [1989] ECR 3283 and its judgment of 28 November 1991 in Case C-170/89 BEUC v Commission [1991] ECR I-5709 - has modified the way in which the requests made by the applicants in that regard are to assessed in law. The Commission claims in particular that it is not possible to equate a statement of objections with a decision to provide a third-party complainant with confidential information - a decision which is final inasmuch as information definitively ceases to be confidential once it is communicated to a third party - or with a decision taken under Article 11 of Regulation No 17 which, unlike a statement of objections, imposes an obligation on the addressee. Nor, in the Commission' s opinion, can the applicants rely on the BEUC judgment since, unlike an undertaking to which a statement of objections is addressed in the field of competition, which may bring an action contesting the final decision, a third-party complainant in anti-dumping proceedings has no locus standi to bring an action seeking the annulment of the final decision.
39 The Commission further stresses that no action can be brought against "acts" ancillary to a statement of objections, any more than against the statement of objections itself, since they have no legal effects and do not culminate an independent procedure.
40 In the Commission' s submission, no irreparable damage can ensue from the contested measures since they are preparatory measures and, moreover, none of the applicants has put forward any plausible argument. The Commission disputes Blue Circle' s claim that the urgency arises out of the need for the Commission to take a final decision before the terms of office of its present members come to an end on 5 January 1993. The Commission denies that assertion, but points out that even if it had actually made a statement to that effect, it would not be a factor which could be relied upon in order to call into question the administrative procedure followed in the present cases, since the Commission is perfectly entitled to determine a programme of priorities without that programme prejudging the tenor of any final decision or interfering with the normal course of the procedures under way.
41 With regard to the existence of a prima facie case, the Commission refers essentially to its observations concerning the manifest inadmissibility of the main applications. However, with reference to the possibility that the plea in law put forward by the applicants in the main applications, based on the allegedly insufficient availability of the file, may also refer in part to the conditions governing access to the documents relevant to the chapters of the statement of objections sent to each respective addressee, the Commission adds, ex abundantia, that the applicants have put forward no serious evidence in support of such a claim.
42 In that regard, the Commission points out, in the first place, that the action brought by ENCI and VNC does not call into question the conditions governing the availability of the file. The Commission - which claims that the applicants SNFCC and FIC are engaging in pure speculation, unsupported by any evidence - does, however, devote some consideration to the factors advanced as evidence by CBR and Blue Circle but denies, on detailed analysis, that they can amount to the prima facie case which must be established for interim measures to be granted. The Commission again points out that, with the exception of the documents on which it intends to rely against an undertaking, the confidentiality which Article 20 of Regulation No 17 requires it to observe precludes it from facilitating access to documents obtained by virtue of its powers of investigation, regardless of the indications given in that respect by the undertakings. It also stresses the inconsistency of some of the applicants, which charge it at one and the same time with not respecting the confidential nature of certain items of information and with not making generally available certain documents obtained by virtue of the powers conferred upon it by Regulation No 17.
43 Finally, the Commission denies that there has been any infringement of Article 176 of the EEC Treaty. In the Commission' s opinion, the obligation imposed by Article 176 to take the necessary measures to comply with a judgment of the Court of Justice or the Court of First Instance arises only when either Court declares void an act of the institution concerned. While it is true that the Commission itself refers, in the contested letters, to the criteria laid down by the Court of First Instance in its judgment in Hercules concerning the exercise of the right to be heard, the applicants may not claim in the circumstances of the present case that there has been an infringement of Article 176 since in Hercules the Court dismissed the undertaking' s application in its entirety.
Manifest inadmissibility of the main applications
44 It was held in the order of the President of the Court of Justice in Bosman, cited above, that "if it is claimed that the application is manifestly inadmissible, it is for the court hearing the application for interim measures to establish that the application reveals prima facie grounds for concluding that there is a certain probability that it is admissible".
45 The Court of Justice has held that "neither the initiation of a procedure nor a statement of objections may be considered, on the basis of their nature and the legal effects they produce, as being decisions within the meaning of Article 173 of the EEC Treaty which may be challenged in an action for a declaration that they are void. In the context of the administrative procedure as laid down in Regulations No 17 and No 99/63, they are procedural measures adopted preparatory to the decision which represents their culmination" (judgment in IBM v Commission, paragraph 21).
46 In the main applications, the applicants make, essentially, two kinds of complaint against the Commission' s conduct. The first category concerns the statement of objections directly and refers in particular to the Commission' s refusal to communicate all the chapters of the statement of objections, to state clearly the objections raised against each undertaking to which the statement of objections is addressed and to allow the undertakings concerned the opportunity of replying at the same time to the statement of objections in the present case and to that which the Commission intends to send them shortly in connection with the CBS agreement. The second category of complaint concerns the Commission' s refusal to make available to the applicants all the documents obtained during the course of its investigation with the exception of business secrets, documents internal to the Commission and other confidential information.
47 As regards the first category of complaint, and without its being necessary at this stage to consider whether the Commission' s conduct is such as to infringe the applicants' right to a fair hearing, it must be pointed out, having regard to the IBM judgment and in particular paragraphs 20 and 21 thereof, that the applicants have not provided this court with prima facie grounds for concluding that there is a certain probability that the applications are admissible. In particular, the applicants have not established the existence of "exceptional circumstances" or of any measure lacking even the appearance of legality, such as to render admissible a court action against the statement of objections.
48 Under Article 2(1) and (4) of Regulation No 99/63, the Commission is to inform undertakings and associations of undertakings in writing of the objections raised against them and to fix a time limit up to which they may inform it of their views. The applicants have all received a statement of objections and the Commission has fixed a period within which they may submit their observations. The question whether the procedure followed in the circumstances was illegal inasmuch as the Commission did not communicate the full text of the statement of objections to each undertaking and has, moreover, reserved the right to give notice of further objections in connection with the Benelux market may be raised by the applicants, without their legal protection being thereby apparently affected, in the court actions which they will be able to bring, if necessary, against the decision finally taken by the Commission on the completion of the administrative procedure.
49 As regards the second category of complaint, concerning the refusal to allow full access to the file, it must first be pointed out that, as the Court of First Instance held in its judgment in Hercules (cited above, paragraph 54), "the Commission has an obligation to make available to the undertakings involved in Article 85(1) proceedings all documents, whether in their favour or otherwise, which it has obtained during the course of the investigation, save where the business secrets of other undertakings, the internal documents of the Commission or other confidential information are involved".
50 It is clear from the case-file and from the oral explanations provided by the Commission that a number of documents acquired during the course of the investigation were not made available to each of the addressees of the statement of objections. They include, first, documents connected with the chapters of the statement of objections dealing with the various national markets which were not communicated to certain undertakings and associations of undertakings because they were not involved in the conduct on the national market concerned and which, in the Commission' s opinion, thus do not form part of the files relating to them. They also include certain documents relating to chapters of the statement of objections which were communicated - documents obtained in the exercise of the powers of investigation conferred upon the Commission by Regulation No 17, not used against the undertaking or association of undertakings to which the objections are addressed and thus, in the Commission' s opinion, covered by the requirement of professional secrecy laid down in Article 20 of Regulation No 17.
51 As the Court of Justice held in Case 85/76 (Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 13), "although Article 20(2) of Regulation No 17 provides that 'without prejudice to the provisions of Articles 19 and 21, the Commission and the competent authorities of the Member States ... shall nor disclose information acquired by them ... of the kind covered by professional secrecy' , this rule must, as the express reference to Article 19 confirms, be reconciled with the right to be heard". The Court of Justice also held in that case that the Commission may not use against an undertaking circumstances or documents which it cannot in its view disclose for reasons of confidentiality.
52 The question of the extent to which the observance of professional secrecy precludes the Commission from allowing access to any document included in the file and acquired in the exercise of its powers of investigation, particularly when it is possible that the undertaking concerned may rely on such a document in exculpation, requires detailed consideration. It must be borne in mind that, as the Court of Justice has held (in AKZO, cited above), "the obligation of professional secrecy laid down in Article 20(2) is mitigated in regard to third parties on whom Article 19(2) confers the right to be heard, that is to say, in regard, in particular, to a third party who has made a complaint. The Commission may communicate to such a party certain information covered by the obligation of professional secrecy in so far as it is necessary to do so for the proper conduct of the investigation".
53 If the obligation to observe professional secrecy laid down in Article 20(2) of Regulation No 17 may be mitigated in regard to third-party complainants, it may also, a fortiori, be mitigated in regard to the addressee of a statement of objections. It follows that there are no obvious grounds for considering that the obligation to observe professional secrecy necessarily requires the Commission to refuse to make available to an undertaking to which a statement of objections has been addressed a document which has not been relied upon against that undertaking merely because it was obtained by virtue of the powers of investigation conferred upon the Commission by Regulation No 17.
54 It follows from the foregoing that, in contrast to the conclusions reached above with regard to the applicants' complaints against the statement of objections, this Court cannot conclude at the present stage that the applications for the annulment of the Commission' s decisions refusing access to the file are manifestly inadmissible. Admittedly, since the allegations involve the possible illegality of steps taken during the administrative procedure, which may affect the legality of the decision ultimately taken by the Commission, the applicants will be entitled to submit any relevant pleas in law in the course of court proceedings against that decision. Nevertheless, inasmuch as they unequivocally refuse to allow the undertakings and associations of undertakings to which the statement of objections is addressed the advantage of a protection to which they claim to be entitled under Community law, the contested acts cannot be regarded by this Court as manifestly incapable of producing legal effects and affecting the applicants' interests, thereby constituting grounds for declaring the applications manifestly inadmissible at the stage of the applications for interim measures.
The existence of serious and irreparable damage
55 The applicants' central argument with regard to the existence of serious and irreparable damage in the absence of the interim measures applied for is that their right to full access to the file would be irretrievably jeopardized if the Court' s ultimate judgment on the main applications were to be given after the applicants had submitted their written and oral observations and even, perhaps, after the Commission had taken its final decision.
56 It must be pointed out that, if the Court were to annul, in the main proceedings, the acts of the Commission refusing full access to the files which the applicants contest, then the whole of the procedure would be illegal. In such a situation, the Commission would be obliged to reopen the procedure and allow the undertakings another opportunity to state their views on the objections raised against them in the light of the new information which would have to be made available to them. Consequently, in such an event, even if the judgment of the Court were to be given after the adoption of the Commission' s final decision on the substance of the case, the applicants would not suffer any serious and irreparable damage.
57 It follows from all of the foregoing considerations that, without its being necessary to consider the pleas of fact and law establishing a prima facie case for the interim measures applied for, the legal prerequisites for granting such measures are not fulfilled, and the applications must therefore be dismissed.
58 However, in view of the particular circumstances of the present cases and the proximity between the date of this order and the date by which the applicants must lodge their replies to the statement of objections, it appears appropriate, pursuant to Article 186 of the EEC Treaty, to extend the period for lodging replies to the statement of objections until Friday 27 March 1992 or, in so far as the applicants comply with the conditions laid down by the Commission as regards the number of copies to be lodged, until Tuesday 31 March 1992.
Operative part
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
by way of interim decision,
hereby orders as follows:
1. The applications for interim measures are dismissed;
2. The period allowed to the applicants for lodging their replies to the statement of objections is extended until Friday 27 March 1992 or, in so far as the applicants comply with the conditions laid down by the Commission as regards the number of copies to be lodged, until Tuesday 31 March 1992;
3. Costs are reserved.
Luxembourg, 23 March 1992.
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