In its judgment of 3 September 2009 in the carbonless paper cartel case, the Court of Justice found that the Court of First Instance, having noted that the Commission had infringed Bolloré's rights of defence, had failed to draw any legal conclusion from its finding by not annulling the Commission decision. The Court has annulled the judgment of the Court of First Instance but also the Commission decision itself in so far as they held Bolloré liable.

Bolloré was one of the undertakings which had been fined by the Commission in 2001 in its decision concerning the carbonless paper cartel1.

In its action for annulment before the Court of First Instance, Bolloré had invoked an infringement of its rights of defence on account of inconsistency between the statement of objections and the final decision. In the statement of objections, the Commission had held Bolloré liable solely in its capacity as the parent company of its wholly-owned subsidiary Copigraph, which had participated in the infringement. However, in its decision the Commission had attributed the infringement to Bolloré on a two-fold ground; on the one hand, on the ground that Copigraph was a wholly-owned subsidiary of Bolloré and, on the other hand, on the ground of Bolloré's personal and direct involvement in the cartel.

In its judgment of 20072, the Court of First Instance had found that this inconsistency amounted to an infringement of Bolloré's right of defence as the statement of objections had not allowed the latter to acquaint itself with the objection alleging its direct involvement in the infringement, so that Bolloré had been unable properly to defend itself vis-à-vis this objection. However, the Court of First Instance considered that this error did not give rise to the annulment of the decision because, even if the objection alleging its personal and direct involvement in the infringement were to be disregarded, Bolloré could nonetheless be held liable solely in its capacity as the parent company of its wholly-owned subsidiary Copigraph, a point on which it was given the opportunity to comment. Consequently, the Court of First Instance held that the error did not have a decisive effect on the operative part of the decision adopted by the Commission or on the fine imposed.

In the judgment delivered on 3 September 20093, following Bolloré's appeal, the Court of Justice condemns the CFI's approach. The Court considers that the CFI has erred in law in failing to draw any legal implications from its finding that Bolloré’s rights of defence had been infringed.

The Court underlines that the observance of the rights of the defence is a fundamental principle of Community law. In this context, the statement of objections must contain the essential elements used against the undertaking, such as the alleged facts, the characterisation of those facts and the evidence on which the Commission relies, so that the undertaking may submit its arguments effectively in the administrative procedure brought against it. Moreover, the Court states that it is also necessary that the statement of objections indicates in which capacity an undertaking is called upon to answer the allegations.

In this case, the Court observes that the fact that in the contested decision Bolloré was held liable on the ground that it was involved in its capacity as Copigraph’s parent company, as well as on the ground of its direct involvement, does not preclude the decision possibly having been based on conduct in respect of which Bolloré was not able to defend itself. Consequently, the Court annuls the CFI's judgment in so far as Bolloré is concerned. The Court also annuls the Commission decision in so far as Bolloré is concerned.

The Court followed the Opinion of Advocate General Bot4. The Advocate General argued that the annulment of the decision, since it was based on the ground of Bolloré's personal involvement, was needed for reasons of clarity and legal certainty, in particular as regards the civil law consequences of the infringement of Article 81 EC (possibility of bringing actions for damages).

According to the Advocate General, "the rejection of an objection is by no means equivalent to its annulment by the Community judicature as the Court of First Instance has not removed it from the legal order, whereas it is deemed never to have existed if it is annulled" (para 127). The Court of First Instance should therefore not merely have rejected the objection in question, without ‘expurgating’ from the contested decision the factors on which the Commission based Bolloré’s own liability.

It must be noted that, even though the Court has annulled the CFI's judgment on grounds of a procedural irregularity, the Court has not expressed its view as to whether the mere fact that Copigragh was a wholly-owned subsidiary of Bolloré, irrespective of the latter's participation in the infringement, was sufficient to hold Bolloré liable for the infringement. This issue will be decided by the Court on 10 September in the judgement to be delivered in the Akzo case5.