C-195/91

BAYER v COMMISSION

OPINION OF ADVOCATE GENERAL GULMANN delivered on 15 September 1992 *

Mr President, lity, that is to say, that it does not exist. I Members of the Court, shall begin by examining whether the Court can and ought to address that question on the basis of the information available.

1. Bayer AG has appealed against the judg- ment in Case T-12/90 delivered by the Court of First Instance on 29 May 1991. That judg- The non-existence of the Commission deci- ment dismissed, on the ground that it had sion been brought out of time, an applica-tion by Bayer for the annulment of a decision adopted by the Commission under Article 85 of the EEC Treaty.

2. Bayer claims that:

Bayer has argued that the judgment should be set aside and that the company's submis- sions before the Court of First Instance should be upheld or, in the alternative, that (1) in adopting the decision, the Commis- the case should be referred back to the Court sion failed to comply with Article 12 of of First Instance. its own Rules of Procedure, which pro- vides that its decisions must be signed by both its President and its Executive Secre-tary (the authentication proce- dure); and

'Finally, the argument put forward by the applicant ... must be interpreted as asserting ... that an original of the contested Decision, authenti-cated by the signatures of the Pres- ident of the Commission and the Executive Secretary, is lacking. That allegation, if true, would not in itself entail the non-existence of the Decision. In the present case, unlike in the PVC cases, ... the applicant has not put forward any concrete evidence to suggest that any infringe-ment of the principle of the inalterability of the adopted measure took place after the adoption of the contested Decision and that the Decision thus lost, to the benefit of the applicant, the presumption By application of 29 April 1992, the Com- mission appealed against that judgment on the ground, inter alia, that the Court's legal assessment of the significance attaching to 2 — Judgments in Case T-9/89 Hüls v Commission [1992] the authentication procedure was incorrect. ECR 11-499, Case T-10/89 Hoechst y Commisàon [1992] ECRn-629, Case T-l 1/89 Shell v Commission [1992] ECRn-757, Case T-12/89 Solvay v Commission [1992] ECRII-907, Case T-13/89 ICI v Commission [1992] ECR II-1021, Case T-14/89 Monudipe v Commission [1992] ECRI1-1155 and Case T-15/89 Chemie Linz y Commission 1 — Judgment in Joined Cases T-79/89, T-84/89, T-85/89, [1992] ECR 11-1275. T-86/89, T-91/89, T-92/89, T-94/89, T-96/89, T-98/89, 3 — Quotation from paragraph 385 of the judgment of the Court T-102/89 and T-104/89 BASF and Others v Commission of First Instance in Case T-9/89 Hüls y Commission [1992] [1992]ECRn-315. ECR II-499.

Finally, applications have been made in two of the Polypropylene cases for revision with a view to securing a declaration that the Com- Appeals to the Court of Justice have been mission decision is non-existent on grounds brought against six of those judgments on corresponding to those set out in the PVC the ground that the decision in question judgment. One of the cases involving an ought to have been declared to be non- application for revision is still pending existent. 4 It is claimed, inter alia, that the before the Court of First Instance, 7 while absence of authentica-tion is in itself such a the second was dealt with in that Court's manifest and serious fault as to justify a dec- order of 26 March 1992 dismiss-ing the laration of non-existence and that the Court application for revision. That order has now of Justice is entitled in the appeals to address been appealed to the Court of Justice. 8 that argument after having reviewed the rel- evant evidence in each case. It is submitted that an issue of non-existence can be exam- ined by any court at any stage whatever, and the judgment of the Court in Case 15/85 Consorzio Cooperative d'Abruzzo v 4. It can thus now be assumed that the Commission [1987] ECR 1005 is cited in sup- Court of Justice will have an opportunity to port of that contention. 5 rule on whether failure to comply with Arti- cle 12 of the Commission's Rules of Proce- dure constitutes a ground for non-existence and to determine the procedural require- 4 — The cases in question are C-199/92 P, C-200/92 P, C-227/92 P, C-234/92 P, C-235/92 P and C-245/92 P. ments applicable to the adjudication of that 5 — Paragraph 10 of that judgment reads as follows: issue on appeal. It is more likely than not 'With regard to the argument that the decision ... is non- existent, it is necessary to point out that under Community that these questions will be decided by the law, as under the national laws of the various Member Sutes, an administrati-ve measure, even though it may be irregular, Full Court. is presumed to be valid until it has been properly repealed or withdrawn by the institution which adopted it. If a measure is deemed to be non-existent, the rinding may be made, even after the period for instituting proceedings has expired, that the measure has not produced any legal effects. For reasons 6 — These arc respectively Case C-49/92 P Commission v of legal certainty which are evident, that classification must consequently be restricted under Community law, as under Enichem Anic and Case C-51/92 P Hercules v Commission. the national legal systems which provide for it, to measures 7 — Case T-8/89 Rev. DSM v Commission. which exhibit particu-larly serious and manifest defects.' 8 — Case C-255/92 P BASF v Commission.

In case the Court should rule that it cannot uphold Bayer's contention that the decision is non-existent, or if it should decide to It might be pointed out that the case before refrain from ruling on the submission of the Court of First Instance concerned an non-existence, I shall briefly examine application for the annulment of the Com- whether the Court should uphold Bayer's mission decision, whereas an examination of contention that it ought to set aside the judg- the submission of non-existence could result ment delivered against the company by the in confirmation of the decision's non- Court of First Instance.

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BAYER v COMMISSION

The appeal against the judgment dismiss- ments as to transparency of service and that ing Bayer's application the Court of First Instance failed to draw the proper conclusions from that fact.

5. The facts of the case and the pleas in law of the parties are to be found in the judg- ment appealed against and in the Report for the Hearing. Bayer attaches particular importance to the fact that the Commission chose to combine notification of the decision by way of regis- tered letter with acknowledgement of receipt (Einschreiben mit Rückschein) with dispatch of a form headed 'Acknowledgement of Receipt/Accus é de réception' to be com- I would refer to these and intend in the fol- pleted and returned with a record of the date lowing to concentrate on what in my opin- of receipt. ion constitutes the essential problem in this case, namely the legal evaluation of what Bayer considers to be a lack of transparency in the Commission's method of service.

O n the face of it, to preclude Bayer from Bayer's principal contention is that service requesting the Court to examine the legality was not effected in the proper manner and of a Commission decision significandy that consequently the period within which affecting the company would appear in those proceedings had to be brought did not start circumstances to be an unreasonably severe to run until 3 January 1990. In the alterna- penalty for being three days outside the tive, Bayer argues that the conditions for the time-limit. suspension of time-limits laid down in the second paragraph of Article 42 of the Statute of the Court of Justice have been satisfied and that the failure to comply with the time- limit must be treated as excusable. Even if it can be accepted in objective terms that the immediate cause of the failure to comply with the time-limit was a misunder- standing attribu-table to the method of ser- vice chosen by the Commission, the question 6. That argument strikes me as plausible. still remains as to whether that failure to The only possible explanation for the failure comply with the time-limit could have or to comply with the time-limit is that the per- ought to have been avoided, that is to say, sons responsible in the legal department whether Bayer must not itself bear responsi- were under the impression that the Commis- bility for the misunderstanding which arose sion had changed its method of service and in its legal department. that the Commission decision had not been received until 3 January 1990. They prepared for the proceedings on that basis and were undoubtedly satisfied that the action before the Court of First Instance had been brought in good time. It may, in my opinion, be There are a number of matters of potential assumed that the immediate cause of the fail- significance in that regard. ure to comply with the time-limit was the miscon-struction by the persons responsible of the method of service and that this was attributable to a misunderstanding of the sig- nificance of the form sent by the Commis- sion concerning acknowledge-ment of Importance attaches to the fact that it may receipt. It may with some justice be argued be argued (as mentioned at paragraph 20 of that the Commission ought to have drawn the judgment of the Court of First Instance) attention in the covering letter, which that:

(b) that fact ought to have caused the per- sons dealing with the preparation of the case to examine whether this 'method of service' was the one actually chosen by the Commission. 7. I also share the views which led the Court of First Instance to refuse to lend weight to the fact that the Commission, after receiving the acknowledgement of receipt and Bayer's letter of 15 January 1990 addressed to the Commissioner responsible, did not point out to the company that the date of receipt men- tioned in its letter was incorrect. A certain, albeit limited, significance may perhaps also be attached to the fact that the persons dealing with the case in Bayer's legal department would have realized that the decision had not been received on 3 January if they had examined the envelope, from which it was reasonably obvious that the company must have received the document in the post prior to 3 January. In my opinion, there is here insufficient rea- son to address in any greater depth Bayer's argument that mistakes by company employees which are not attributable to mis- takes on the part of the company manage- ment cannot be attributed to the company as such. That argument is not supported by the case-law of the Court of Justice 9 and would in any event have unreasonable conse- Finally and most importantly, it is clear — as quences. the Court of First Instance stressed at para- graphs 33 and 34 of its judgment — that there would have been no misunderstanding in the legal department if the handling of the 9 — In support of its view, Bayer refers to the Court's judgment in Case 284/82 Bussent v Commission [1984] ECR 557. document by Bayer's mail office had not However, that case did not involve a situation in which a been marked by a number of errors of cru- mistake had been made by an employee, but rather one in which the company management had failed to make arrange- cial significance to the case. ments to ensure that company mail would be opened.

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