«(Appeal – Agreements and concerted practices – European producers of beams – Notification of the statement of objections)»

Opinion of Advocate General Stix-Hackl delivered on 26 September 2002

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Judgment of the Court (Fifth Chamber), 2 October 2003

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Summary of the Judgment

ECSC – Agreements, decisions and concerted practices – Prohibited – Decision imposing a fine on a company which was not the addressee of the statement of objections following a procedure conducted exclusively against one of its subsidiaries – Infringement of the rights of the defence – Annulment (ECSC Treaty, Arts 36 and 65(1) and (5))

The principle of the rights of the defence, applicable in the context of an administrative procedure, requires, in particular, the inclusion in the statement of objections addressed by the Commission to an undertaking on which it intends to impose a penalty for infringement of competition rules of the essential factors taken into consideration against that undertaking, such as the facts alleged, the classification of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively during the administrative procedure brought against it.Given its importance, the statement of objections must specify unequivocally the legal person on whom fines may be imposed and be addressed to that person.A decision imposing a fine on a company must therefore be annulled for infringement of the rights of the defence where it is established that the statement of objections was addressed not to the company, but to one of its subsidiaries, that the statement of objections did not state that a fine might be imposed on the company, that the company was denied access to the file on the ground that it was not the addressee of that statement and that ambiguity persisted up to the end of the procedure as to the legal person on whom the fines would be imposed, despite the fact that that company was aware of the statement of objections and of the procedure which had been initiated against that subsidiary.see paras 19-23

JUDGMENT OF THE COURT (Fifth Chamber) 2 October 2003 (1)

(Appeal – Agreements and concerted practices – European producers of beams – Notification of the statement of objections)

In Case C-176/99 P,

ARBED SA, established in Luxembourg, represented by A. Vandencasteele, avocat,

appellant,

APPEAL against the judgment of the Court of First Instance of the European Communities (Second Chamber, Extended Composition) of 11 March 1999 in Case T-137/94 ARBED v Commission [1999] ECR II-303, seeking to have that judgment set aside,

the other party to the proceedings being:

Commission of the European Communities, represented by J. Currall and W. Wils, acting as Agents, assisted by J.-Y. Art, avocat, with an address for service in Luxembourg, defendant at first instance,

THE COURT (Fifth Chamber),

composed of: M. Wathelet, President of the Chamber, D.A.O. Edward, A. La Pergola, P. Jann (Rapporteur) and S. von Bahr, Judges,

Advocate General: C. Stix-Hackl, Registrar: M.-F. Contet, Principal Administrator,

having regard to the Report for the Hearing, after hearing oral argument from the parties at the hearing on 31 January 2002, after hearing the Opinion of the Advocate General at the sitting on 26 September 2002,

gives the following

This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

Subject to Article 2(4), for projects listed in Annex II, Member States shall determine whether the project shall be made subject to an assessment in accordance with Articles 5 to 10. Member States shall make that determination through:

a case-by-case examination;

or

thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

A description of the project, including in particular:

a description of the physical characteristics of the whole project and, where relevant, of demolition works;

a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

A description of the aspects of the environment likely to be significantly affected by the project.

A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

the expected residues and emissions and the production of waste, where relevant;

the use of natural resources, in particular soil, land, water and biodiversity.

ECLI:EU:C:2025:140

JUDGMENT OF 6. 3. 2025 – CASE C-41/24 WALTHAM ABBEY RESIDENTS ASSOCIATION

The criteria of Annex III shall be taken into account, where relevant, when compiling the information in accordance with points 1 to 3.’

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

all forms of deliberate capture or killing of specimens of these species in the wild;

deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

deliberate destruction or taking of eggs from the wild;

deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

The first ground of appeal alleges infringement of the rights of the defence during the administrative procedure. It is directed against paragraphs 94 to 102 of the judgment under appeal, in which the Court of First Instance ruled on recital 322 of the grounds for the contested decision.

Recital 322 states: Only TradeARBED [SA (TradeARBED)] took part in the various arrangements and agreements. However, TradeARBED is a sales company that sells, inter alia, beams on a commission basis for its parent company ARBED SA. TradeARBED receives a small percentage of the sales price for its services. To ensure equality of treatment, this Decision is addressed to ARBED SA, the beams-producing company in the ARBED group, and the turnover in the relevant products is the turnover of ARBED and not of TradeARBED.

Paragraphs 94 and 95 of the judgment under appeal are worded as follows:

94As regards, second, the question whether the Commission breached the applicant's rights of defence by addressing to it a decision imposing on it a fine calculated on the basis of its turnover, without first having formally sent it a statement of objections or even indicated its intention of imputing to it liability for the infringements committed by its subsidiary, the Court observes that the procedural rights on which the applicant relies are, in the present case, guaranteed by the first paragraph of Article 36 of the ECSC Treaty, which provides that before imposing a pecuniary sanction as provided for in the Treaty the Commission must give the party concerned the opportunity to submit its comments.

95As to whether, in the present case, ARBED was given the opportunity to submit its comments before the [contested] decision was adopted, the Court finds that the Commission did not at any point in the administrative proceedings formally advise the applicant of its intention to impute to it liability for the conduct of TradeARBED called in question in the statement of objections and, accordingly, to impose on it a penalty calculated on the basis of its own turnover. The Court considers that such an omission could constitute a procedural irregularity capable of adversely affecting the applicant's rights of defence.

In paragraph 96 of the judgment under appeal, the Court of First Instance referred to a set of facts which had occurred during the administrative procedure. It continued as follows:

It follows from all the foregoing that, in particular: (a) either ARBED or TradeARBED, as applicable, replied without distinction to the requests for information which the Commission addressed to TradeARBED; (b) ARBED regarded TradeARBED as merely its sales agency or organisation; (c) ARBED spontaneously regarded itself as the addressee of the statement of objections formally notified to TradeARBED, of which it was fully aware, and instructed a lawyer to defend its interests; (d) the applicant's lawyer presented himself without distinction as either counsel for ARBED or counsel for TradeARBED; and (e) ARBED was requested to provide the Commission with certain information concerning its turnover for the products and the period of infringement referred to in the statement of objections.

The Court concludes that throughout the administrative procedure there was some uncertainty as to the respective roles and liability of the two companies ARBED and TradeARBED, as regards both the substantive issues (see also the numerous documents in the Commission's file which refer sometimes to ARBED and sometimes to TradeARBED) and the procedural aspects. This confusion persisted up to the stage of the written procedure before the Court, since in point 1 of the application (p. 3) the applicant stated that it (and not TradeARBED) had replied to the statement of objections on 3 August 1992 (this assertion, which was described as a clerical error, was rectified by the applicant's lawyer in a corrigendum of 8 April 1994).

In the light of that confusion, the Court also considers that the statement of objections necessarily came within ARBED's control, that ARBED took it for granted from the outset that the Commission was holding it liable for the conduct of its subsidiary TradeARBED and that, accordingly, it could not seriously imagine that the amount of the fine which it might eventually be required to pay, as an undertaking subject to the prohibition in Article 65 of the Treaty, would be calculated by reference only to TradeARBED's turnover (see also point 12 of the statement of objections, which refers to the turnover of the ARBED group). Indeed, it even received confirmation that that would not be the case in the form of the request for information on its own turnover.

Furthermore, ARBED was given the opportunity to submit its observations on the objections which the Commission proposed to uphold against TradeARBED, both through its subsidiary and by the participation in the administrative hearing of two members of its legal department, assisted by a lawyer who, according to the information in the file referred to above, represented both companies. ARBED also had the opportunity to submit its observations on the imputation of liability contemplated by the Commission when it was requested to provide information concerning its turnover. In that regard, the Court has already found that the applicant could not take that request to mean anything other than that the Commission intended to hold it liable for TradeARBED's conduct.

Having regard to all the facts of the case, moreover, the Court considers that Mr Temple Lang's letter of 30 June 1992, in which he stated that ARBED was not the addressee of the statement of objections and apparently denied it the right of access to the file for that reason, regrettable though it might be, did not in fact adversely affect the applicant's rights of defence; nor did the applicant put forward any plea based specifically on such a refusal.

Having regard to all the specific circumstances of the present case, the Court therefore considers that such an irregularity is not such as to entail the annulment of the [contested] decision in so far as it concerns the applicant.

By its first ground of appeal, the appellant claims that the Court of First Instance was wrong to reject its plea for annulment of the contested decision alleging that, after having sent TradeARBED a statement of objections in which all of the objections were attributed to that undertaking, the Commission then took the contested decision against the appellant without first informing it of its intention or of the reasons which, in the Commission's opinion, justified that course of action and without giving the appellant an opportunity to make known its point of view on that intention and the formal reasons for it.

The Commission contends that the judgment under appeal should be upheld. It submits that the Court of First Instance examined the question whether the failure to inform the appellant formally and expressly of the Commission's intention to impute to it liability for the conduct of TradeARBED was such as to constitute an infringement of the rights of the defence. After stating detailed reasons, the Court of First Instance found that the appellant had been given an opportunity, during the procedure before the Commission, to submit its point of view on that imputation.

Findings of the Court

In all proceedings in which sanctions, especially fines or penalty payments, may be imposed, observance of the rights of the defence is a fundamental principle of Community law which must be complied with even if the proceedings in question are administrative proceedings (Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, paragraph 9).

That principle requires, in particular, the inclusion in the statement of objections addressed by the Commission to an undertaking on which it intends to impose a penalty for infringement of competition rules of the essential factors taken into consideration against that undertaking, such as the facts alleged, the classification of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively during the administrative procedure brought against it (see, to that effect, Case 41/69 ACF Chemiefarma v Commission [1970] ECR 661, paragraph 26; Case C-62/86 AKZO v Commission [1991] ECR I-3359, paragraph 29; and Joined Cases C-89/85, C-104/85, C-114/85, C-116/85, C-117/85 and C-125/85 to C-129/85 Ahlström Osakeyhtiö and Others v Commission [1993] ECR I-1307, paragraph 135).

Given its importance, the statement of objections must specify unequivocally the legal person on whom fines may be imposed and be addressed to that person (see Joined Cases C-395/96 P and C-396/96 P Compagnie Maritime Belge Transports and Others v Commission [2000] ECR I-1365, paragraphs 143 and 146).

It is common ground that, in the present case, the statement of objections did not state that fines might be imposed on the appellant. Moreover, as the Court of First Instance observed in paragraph 101 of the judgment under appeal, the appellant was not the addressee of the statement of objections and was denied a right of access to the file for that reason.

While it is undisputed that the appellant was aware of the statement of objections addressed to its subsidiary TradeARBED and of the procedure which had been initiated against that subsidiary, it cannot be concluded from that fact that the appellant's rights of defence were not infringed. Ambiguity as to the legal person on whom the fines would be imposed, which could have been dispelled only by properly addressing a fresh statement of objections to the appellant, persisted up to the end of the administrative procedure.

It follows that the Court of First Instance was wrong to conclude from the facts of the present case, in paragraph 102 of the judgment under appeal, that the failure to address a statement of objections to the appellant was not such as to entail annulment of the contested decision, in so far as it concerned the appellant, on the ground of infringement of the rights of the defence.

Since the first ground of appeal is well founded, the judgment under appeal must be set aside without its being necessary to examine the other grounds of appeal.

The action on the substance

Under Article 61 of the Statute of the Court of Justice, if an appeal is well founded and the Court of Justice quashes the decision of the Court of First Instance, it may itself give final judgment in the matter, where the state of the proceedings so permits. That is the case here.

It follows from paragraphs 19 to 23 of this judgment that the action is well founded and that the contested decision must be annulled in so far as it concerns the appellant.

Costs

Under the first paragraph of Article 122 of the Court's Rules of Procedure, where an appeal is well founded and the Court itself gives final judgment in the case, the Court must make a decision as to costs. Under Article 69(2) of those Rules, which applies to appeal proceedings by virtue of Article 118, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party's pleadings.

The Commission has been unsuccessful in its defence and the appellant has applied for costs to be awarded against the Commission. The Commission must therefore be ordered to pay the costs of both the proceedings before the Court of First Instance and the present appeal proceedings.

On those grounds,

THE COURT (Fifth Chamber) hereby:

1Annuls the judgment of the Court of First Instance of 11 March 1999 in Case T-137/94 ARBED v Commission;

2Annuls Commission Decision 94/215/ECSC of 16 February 1994 relating to a proceeding pursuant to Article 65 of the ECSC Treaty concerning agreements and concerted practices engaged in by European producers of beams in so far as it concerns ARBED SA;

3Orders the Commission of the European Communities to pay the costs of both the proceedings before the Court of First Instance and the present appeal proceedings.

Wathelet

Edward

La Pergola

Jann

von Bahr

ECLI:EU:C:2025:140

15

Delivered in open court in Luxembourg on 2 October 2003.

Registrar

President of the Fifth Chamber

1 – Language of the case: French.

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