C-137/92

COMMISSION v BASF AND OTHERS

OPINION OF ADVOCATE GENERAL VAN GERVEN delivered on 29 June 1993 *

Summary I 2561 I — Background to the proceedings -

I I — Objection of inadmissibility on account of failure to meet time-limits I - 2563

III — Objection of inadmissibility on account of new facts raised by the Commission .... I - 2565

IV — The assessment by the Court of First Instance of the changes made to the Decision I - 2567

5. The aforementioned case-law seen in relation to the contested changes I - 2574

6. Alternatively: has the legality of the Decision as a whole been affected in 2576 relation to all the addressees? I-

B. The changes made to all the language versions of the Decision I - 2578

1. The judgment of the Court of First Instance and the views of the parties I - 2578 2. Objection of inadmissibility on account of new facts raised? I - 2578 3. Consideration of the complaints in connection with the addition of a new paragraph

4. Examination of the complaints relating to the omission of the words '(EMC Group)' from the operative part of the Decision I - 2584

V — The requirements of the EEC Treaty as to the coming into being of acts of the Commission, more specifically with regard to the adoption of authentic language versions of a decision I-2586

4. Application of the difference in levels of decision-taking to the questions at issue in this case I-2594

VI — Purpose and interpretation of Article 12 of the Commission's Rules of Procedure with regard to the authentication of decisions I - 2597

A. Status and invocability of rules of procedure according to the case-law of the Court I- 2598

1. Treaty provisions and precedents in the case-law I - 2598

2. The so-called 'settled case-law' of the Court of Justice concerning invo­ cability I - 2600

3. Analysis of the judgment in Nakajima I - 2603

5. Assessment of the other functions ascribed by the Court of First Instance to authentication in the light of these articles of the Treaty I - 2611 6. Guarantee that the content of the measure corresponds to the intention of the full Commission? I-2612

7. Conclusion I-2615

VII — Misapplication of the doctrine of non-existence? I-2616

1.The views of the parties and the reasoning of the Court of First Ins­ nc ta e I-2616

2. The doctrine of non-existence in the case-law of the Court of Justice I - 2618

3. Assessment of the PVC judgment in the light of those criteria I - 2623

2. As a result of investigations which it car­ ried out on undertakings in the polypropy­ I shall divide up my arguments as follows. lene sector in October 1983 pursuant to First, I shall discuss the objection raised by Article 14 of Council Regulation No 17 the respondents to the effect that the appeal of 6 February 1962, 3 the Commission is inadmissible as being out of time and, in opened a file concerning polyvinylchloride general, the question as to the inadmissibility (PVC). It undertook various investigations at of the appeal on account of new facts raised the premises of the undertakings concerned by the Commission. Next I shall consider and sent them several requests for informa­ the complaints raised by the Commission tion. On 24 March 1988 the Commission against the PVC judgment and the argu­ instituted a proceeding under Article 3(1) of Regulation No 17 against fourteen PVC

1 — Judgment in Joined Cases T-79/89, T-84/89, T-85/89, T-86/89, T-89/89, T-91/89, T-92/89, T-94/89, T-96/89, T-98/89, T-102/89 and T-104/89 BASF and Others v Com- 3 — Council Regulation No 17 of 6 February 1962, First Regu­ mission [1992] ECR II-315. lation implementing Articles 85 and 86 of the EEC Treaty, OJ, English Special Edition 1959-1962, p. 87. 2 — OJ 1989 L 74, p. 1.

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OPINION OF MR VAN GERVEN — CASE C-137/92 P

In the Decision, the fourteen PVC producers were found to have infringed Article 85(1) of the EEC Treaty by participating (for the periods identified in the Decision) in an Reference may be made to the Report for the agreement and/or concerted practices origi­ Hearing for the reasoning of the Court of nating in about August 1980. It was alleged First Instance in the PVC judgment. It is suf­ that under that agreement and/or concerted ficient for present purposes to state that the practice the producers supplying PVC in the Court of First Instance decided to declare Community took part in regular meetings in the Commission's Decision non-existent in order to fix target prices and target quotas, law, on the ground that (i) there had been 'a to plan concerted initiatives to raise price manifest breach of the principle of the inal­ levels and to monitor the operation of the 9 terability of the measure adopted', (ii) the said collusive arrangements (Article 1). Sec­ Member of the Commission responsible for ondly, the Decision ordered the undertakings matters of competition, who signed the mea­ to bring the said infringement to an end sure, lacked the competence ratione materiae forthwith and to refrain from the practices in and ratione temporis to do so , 10 and (iii) the question in the future (Article 2), and measure in question was not authenticated.

4. All the appellants, with the exception of Shell ICC and Montedison, object that the appeal is inadmissible as being out of time. 5. I cannot share that view. It is true that, as They contend that, since the PVC judgment the Court has consistently held, 'the strict was notified to the Commission on 28 Feb interpretation of Community rules on proce ruary 1992, the appeal should have been dural time-limits serves the requirement of brought within a period of two months of legal certainty and the need to avoid any dis notification, pursuant to the first paragraph crimination or arbitrary treatment in the of Article 49 of the Statute of the Court of 13 administration of justice'. The Court also Justice of the EEC , that is to say, having treats the question of the habitual residence regard to Article 80(1)(b) of the Rules of 1 of a party to proceedings — for the purposes Procedure, 1on 28 April 1992 at the latest. of the application of procedural time-limits The Commission lodged its appeal at the on account of distance — as a question of Registry of the Court only on 29 April 1992. fact: as long ago as the judgments in the Fonzi cases the Court held that 'The exten sion on account of distance is dependent solely on the facts, that is to say, on where

Pending a final decision on the seat of the institutions, their provisional place of work must be 13 — See in particular the judgments in Case 209/83 Valsabbia v taken as their habitual residence. Since the Commission [1984] ECR 3089, paragraph 14, Case 42/85 Commission performs a considerable pro Cockerill-Sambre v Commission [1985] ECR 3749, para- graph 10, Case 152/85 Misset v Council [1987] ECR 223, paragraph 11, and Case 276/85 Cladakis v Commission [1987] ECR 495, paragraph 11; and the order in Case C-59/91 France v Commission[1992] ECR I-525, para graph 8.

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OPINION OF MR VAN GERVEN — CASE C-137/92 P

office of the company in question. The that the Commission has its 'habitual resi­ determining factor for the purposes of calcu­ dence' in Luxembourg. Articles 7, 8 and 9 of lating the procedural time-limit to which an that decision merely list a number of Com­ institution such as the Commission is en­ mission departments which are to be based titled is therefore — and this is how the word- in Luxembourg. For the rest, Article 12 of 'seat' is to be understood — the place from the decision provides that it does not affect which that institution is actually run, that is 'the provisional places of work of the institu­ to say where the most important decisions tions and departments of the European concerning the institution's activity are made Communities', which, according to Article 1, and from which that activity is set in are Luxembourg, Brussels and Strasbourg. 16 motion. Although it is not expressly stated in the decision, it is sufficiently known that the Commission as a decision-making body al­ ready had its place of establishment at Brus­ 19 sels under the provisional arrangements and the establishment of a number of its 6. It cannot be denied that this nerve centre departments in Luxembourg was to be com­ is, as far as the Commission is concerned, pensation for the Grand Duchy for the located in Brussels. Admittedly, at the time 2 transfer, under the Merger Treaty, 0 of the when the Commission brought the appeal High Authority of the ECSC (which was the seat of the Community institutions had 21 17 previously in Luxembourg) to Brussels. In not yet been definitively fixed and the any event, that arrangement was definitively Decision of 8 April 1965 of the Representa­ confirmed by the Decision of 12 Decem­ tives of the Governments of the Member ber 1992 taken by common agreement States on the provisional location of certain between the Representatives of the Govern­ institutions and departments of the Commu­ 18 ments of the Member States on the location nities was still in force. However, to my of the seats of the institutions and of certain mind it cannot be inferred from that decision bodies and departments of the European 22 Communities. According to Article 1(c) of

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COMMISSION v BASF AND OTHERS

that decision, the Commission is to have its undertaken at first instance. In addition, it is seat in Brussels and the departments listed in claimed that in its appeal the Commission the above-mentioned provisions of the 1965 presents some essential aspects of the proce­ decision are to be established in Luxem­ dure before the Court of First Instance bourg. incorrectly.

7. I conclude from the foregoing that, even under the provisional arrangements, the Commission has its habitual residence in Brussels for the purposes of the application of the Court's procedural time-limits and that it therefore, under Article 1 of the Deci­ 9. In this respect it is sufficient for me to sion on extension of time-limits on account observe that the Court of First Instance has of distance, is entitled to a two-day exten­ the last word when it comes to findings of sion. As a result, its appeal was lodged in fact. 23 Since the review carried out by the time and the objection of inadmissibility on Court of Justice in appeals against judgments account of failure to meet time-limits fails. of the Court of First Instance is confined to points of law (Article 168a(1) of the EEC Treaty and Article 51 of the Statute of the Court of Justice of the EEC), the Court of Justice cannot rule on new facts which have III — Objection of inadmissibility on been raised. That would necessitate a fresh account of new facts raised by the Commis- assessment of the facts, which, as the Court of Justice has consistently held, is precluded: sion

Court of First Instance disregarded rules of appeal concerning the law contests the law which it had to ensure were respected.' grounds of the PVC judgment in so far as a (Unofficial translation) legal inference made therein is connected with facts which the Court of First Instance has not duly established, an infringement of the law is invoked which must be declared in principle an admissible complaint. The plea 'infringement of Community law', on which, under Article 51 of the Statute of the Court of Justice of the EEC, an appeal can be 26 My starting point, therefore, is that in assess­ based, has a broad meaning: according to ing the complaints set out by the Commis­ the judgment in Vidrányi 's case, it includes sion in its appeal — and the respondents' not only the written rules of Community 25 arguments likewise — the findings of fact law but also the (unwritten) general prin­ of the Court of First Instance only can be ciples which form part of the Community taken into account. Legally, therefore, the legal order. In that judgment, the Court description of the factual background to the accepted as a plea in law on appeal the PVC case set out in the Commission's appeal infringement of the general principle of com­ has no probative value and can be regarded pliance with the rights of the defence and of only as a unilateral declaration. Conse­ the obligation for courts to give reasons for 27 quently I do not have to consider that their decisions. Drawing legal inferences description more closely. from facts which have not been established or have not been duly established undoubt­ edly constitutes an infringement of the duty to state reasons, hence a complaint to that effect relates to an infringement of Commu­ nity law and must therefore in principle be 28 accepted by the Court as admissible. I shall assess when discussing the relevant point (section 24 below) whether the pleas In contrast, I would stress forthwith that raised by the Commission to which the where the Commission in the part of its

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COMMISSION v BASF AND OTHERS

objection of inadmissibility relates satisfy sections 13 and 14 — the Court of First those requirements. Instance set forth the following consider­ ations:

IV — The assessment by the Court of First 'The principle that a measure may not be Instance of the changes made to the Deci- altered once it has been adopted by the com­ sion petent authority constitutes an essential fac­ tor contributing to legal certainty and stabil­ ity of legal situations in the Community legal order both for Community institutions and for persons whose legal or factual situa­ tion is affected by a decision adopted by 10. The Commission's first plea for setting those institutions. Only rigorous and abso­ aside the PVC judgment claims error in law lute observance of that principle can guaran­ and defect of reasoning as regards the assess­ tee that, subsequent to its adoption, a mea­ ment by the Court of First Instance of the sure may be amended only in accordance changes made to the Decision between the with the rules on competence and procedure time when the meeting of the full Commis­ and, consequently, that the notified or pub­ sion adopted it and the time when it was lished measure constitutes an exact copy of notified to the addressees. The Commission's the measure adopted, thus reflecting faith­ complaints relate to (i) the changes made to fully the intention of the competent author- the German version of the Decision and (ii) ity.' the amendment made to all the language ver­ sions, namely the addition of a paragraph to point 27 of the Decision and the change made to the operative part of the Decision. A. The changes made to the German version of the Decision

begin with the first point, but would initially 12. The Commission considers that, in its call to mind the relevant passage of the PVC reading of the judgment in United Kingdom judgment. v Council, the Court of First Instance applied an erroneous interpretation of Art­ icle 190 of the EEC Treaty, the provision on which that judgment is based. According to that article'[r] egulations, directives and deci­ sions of the Council and of the Commission shall state the reasons on which they are based and shall refer to the proposals or The Court made the finding that the German opinions which were required to be obtained version of the decision adopted by the full pursuant to this Treaty'. The Commission Commission at its meeting on 21 Deci­ argues that, for there to be an infringement sion 1998 exhibited 'significant differences' of Article 190, it must be proved that the compared to the English and French ver­ changes made to the measure after its adop­ sions, on the one hand, — those three ver­ tion are of a substantial nature. However, in sions were all adopted at the meeting — and the case at issue the changes consisted simply compared to the German version notified of linguistic improvements which affected and published in the Official Journal neither the prerogatives of Members of the on 17 March 1989, on the other hand, which Commission nor, a fortiori, the rights of the 'could not be regarded as mere corrections to addressees of the Decision. Finally, the Com­ spelling or grammar'. 30 After listing the rel­ mission argues that it must retain the faculty evant differences (see section 14 below), the of correcting a language version, even an Court of First Instance held as follows in authentic text, to bring it exactly into line paragraph 42: with the version on which the measure is based.

2. The judgment in Case 131/86 United the Commission should contain a statement Kingdom v Council of the reasons which led the institution to adopt them, so as to make possible a review by the Court and so that the Member States and the nationals concerned may be aware of 13. This brings me to a closer analysis of the the conditions under which the Community judgment in United Kingdom v Council. In institutions have applied the Treaty (see the that case the Court was asked by the United judgment of 7 July 1981 in Case 158/80 Kingdom to annul Council Directive Rewe v Hauptzollamt Kiel [1981] 86/113/EEC of 25 March 1986 laying down ECR 1805). minimum standards for the protection of 31 laying hens kept in battery cages. The sec­ ond plea was that the text of the directive differed in its preamble in three respects It follows that the statement of reasons is an from the draft which had been submitted to essential part of a measure. Consequently, the Council for adoption. The Court held neither the Secretary-General of the Council that that plea was well founded and based its nor the staff of its General Secretariat has the reasoning on the Council's Rules of Proce­ power to alter the statement of reasons for a dure and on Article 190 of the EEC Treaty. measure adopted by the Council.' 32

After recapitulating the relevant provisions of the Council's Rules of Procedure, the Court held — and I cite in extenso— as fol­ lows: Since it was established that the alterations made to the directive went far beyond simple corrections of spelling and grammar, the 33 Court declared the directive void. 'However, the Council's Rules of Procedure do not authorize the Secretary-General or the staff of the General Secretariat to make alterations or corrections to texts adopted by the Council. Although it is clearly part of the 3. Differences between the present case and duties of the Council's General Secretariat to correct spelling and grammar, that discretion Case 131/86 cannot extend to the content of the measure in question.

adopted are unlawful. remove a clerical error originating in the English version (change mentioned in the 37 third indent ). The changes are, in any event, so minor and limited in coverage as to have no impact at all on the legal assessment of the infringement of Article 85 of the EEC Treaty or on the right of the addressees of the Decision to the fullest possible legal pro As far as the first point is concerned, namely tection (see section 17 below). the considerable points of difference with regard to the circumstances, the two cases are different first of all in respect of the nature of the changes found. To my mind, it follows that it certainly cannot be inferred from United Kingdom v Council that 'the scope, importance or substantial nature' of the changes can remain undiscussed.

Petrochemie-Industrie einschliesslich des PVC-Sektors hat in dem von dieser Entscheidung erfassten Zeitraum einen grundlegenden Umstrukturierungs- und Rationalisierung- sprozess durchlaufen, der von der Kommission unterstützt worden ist' ('Over the period covered by the present deci 34 — See in particular paragraph 35 of the judgment in United sion the Western European petro-chemical industry Kingdom v Council. — including the PVC sector — has undergone a substantial 35 — See paragraph 33 of the judgment in United Kingdom v restructuring and rationalization process, which has Council. received the support of the Commission.')

language version, the German, are involved, that right conditional on proof of an interest whilst in United Kingdom v Council changes in bringing proceedings. The situation in the were found to have been made in all the lan­ present case appears completely different, guage versions. This seems to confirm that, since it is concerned with a Commission as the Commission argues, the changes in the decision in which the Commission, under German version of the Decision were Article 3(1) of Regulation No 17, held that intended chiefly to render that version iden­ there had been an infringement of Article 85 tical to the other language versions. of the EEC Treaty: individuals — who, of course, can assert no rights as members of the relevant Community institution to the correct decision-taking procedure being 40 followed — may under the second para­ graph of Article 173 of the EEC Treaty con­ test the legality of such a decision only in so far as the decision was addressed to them or Finally, I would refer to a last — to my is of direct and individual concern to mind, essential — difference between the sit­ 41 them. uation in United Kingdom v Council and the present case. In the former case, a Member State, which sits as a member of the Com­ munity institution concerned, the Council (see Article 2 of the Merger Treaty), rightly 4. The requirement laid down by Article 190 considered that its rights had been impaired of the EEC Treaty to state reasons in indi­ on the ground that, after the directive at vidual decisions in competition cases issue had been adopted by the Council, changes were made to it for which the appropriate decision-taking process had not been followed, so that it had been unable to take part in that process. The fact that the 15. This leads me to my second point of Member State concerned could rely on the criticism. The judgment in United Kingdom rules of procedure of the Community insti­ v Council, in which, as I have already men­ tution of which it was a member in order to tioned, a directive was at issue, does not pro­ claim that the General Secretariat had no vide guidance exclusively about the question power to make alterations to an adopted whether the requirement to state reasons, as 38 text, was beyond dispute. Likewise, the laid down in Article 190 of the EEC Treaty, question whether the United Kingdom suf­ has been fulfilled. More specifically it does fered any damage as a result of the infringe­ not provide guidance in a case such as the ment in question was irrelevant to the present one concerning an individual deci- Court's assessment: as the Court observed in sion in a competition case. In fact, in that 39 the same judgment, the first paragraph of area the Court has developed extensive case- Article 173 of the EEC Treaty gives each law with regard to the requirement to state Member State the right to contest the legality reasons, which the PVC judgment wrongly of a directive without making the exercise of

held, the purpose of the requirement to state and the possible interest which the address­ the reasons on which an individual decision ees or the other parties to whom it is of is based is direct and individual concern within the meaning of the second paragraph of Art­ icle 173 of the EEC Treaty may have in the 47 decision. 'to enable the Court to review the legality of the decision and to provide the person con­ cerned with details sufficient to allow him to ascertain whether the decision is well founded or whether it is vitiated by a defect which will allow its legality to be contest­ 43 ed'. More specifically with regard to competition cases, the Court has held that the require­ ment laid down in Article 190 to state the grounds on which a decision is based is sat­ isfied where the Commission decision refers The statement of grounds required by Art­ to the matters of fact and law on which the icle 190 of the EEC Treaty must therefore disclose in a clear and unequivocal fashion

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49 — Judgment in Joined Cases 209/78 to 215/78 and 218/78 Van Landeweyck v Commission [1980] ECR 3125, paragraph 66; judgment in Michelin v Commission, paragraph 14; judg­ 51 — Judgment in Case 41/69 ACF Chemiefarma v Commis- ment in VBVB and VBBB v Commission, paragraph 22; sion [1970] ECR 661, paragraph 78 (emphasis added). In the judgment in Case 86/82 Hasselblad v Commission [1984] judgment in the Cimenteries case, the Court employed the ECR 883, paragraph 17; judgment in Stichting Sigarettenin- criterion of the decision's being'sufficiently clear': judgment dustrie, paragraph 88; judgment in BAT and Reynolds v in Joined Cases 8 to 11/66 Cimenteries v Commission Commission, paragraph 72; judgment in Belasco v Commis- [1967] ECR 75, at 94. sion, paragraph 55. As long ago as the judgment in Consten 52 — Judgment in Case 55/69 Cassella v Commission [1972] and Grundig v Commission the Court held that the Com­ ECR 887, paragraph 22 (my emphasis). mission had not infringed the rights of the defence on the 53 — Judgment in ACF Chemiefarma v Commission, paragraph ground that 'in non-judicial proceedings of this kind the 80. administration is not required to give reasons for its rejec­ 54 — Judgment in Joined Cases 40 to 48, 50, 54 to 56, 111, 113 tion of the parties' submissions': Joined Cases 56 and 58/64 and 114/73 Suiker Unie and Others v Commission [1975] Consten and Grundig v Commission [1966] ECR 299, at ECR 1663, paragraph 118. 338. 55 — Judgment in Case 73/74 Papiers Peints v Commission [1975] 50 — See, expressly, the judgment in VBVB and VBBB v Com- ECR 1491, in particular paragraphs 31 and 34; judgment in mission, paragraph 22; and the judgment in Case 42/84 BAT and Reynolds v Commission, paragraph 71; judgment Remia v Commission [1985] ECR 2545, paragraphs 26 in Delacre v Commission, paragraph 15. and 27.

17. In my view, the following guiding prin­ their right to the fullest possible legal protec­ ciples can be derived from that case-law of tion, an infringement of Article 190 of the the Court with regard to the significance of EEC Treaty is not involved. Article 190 of the EEC Treaty in competi­ tion cases. The requirement to state grounds laid down in that provision is not of an abso­ lute but of a relative nature, in the sense that it is intended to enable the addressees of a decision to know and to defend their rights 5. The aforementioned case-law seen in rela­ 56 as well as possible. They must therefore be tion to the contested changes informed in a sufficiently clear and coherent way of the main points of the Commission's reasoning, that is to say, with regard to the considerations of fact and of law which are necessary in order for them to appreciate the well-foundedness of the decision taken 18. More specifically as regards the question against them. at issue, namely the status under Article 190 of the EEC Treaty of (limited) changes made between the time when a decision in a com­ petition case was adopted and the time when it was notified and published, I consider that the judgments in particular in the Suiker 58 Secondly, the statement of reasons must put Unie and Hasselblad cases are relevant. the Court in a position to carry out the review of legality with which it is charged by Article 173 of the EEC Treaty in proceedings brought by the addressees of a decision in a competition case. That principle, too, serves In the Suiker Unie case, one of the parties the need to provide the addressees of the relied on a mistake which occurred only in measure concerned with the fullest possible the French version of the decision notified to legal protection. the parties, namely 1969/70 was stated as being the year in which the infringement of the competition rules commenced rather than 1968/69. The Court ruled against that party, which sought to abide by the French text notified to it: the notification of objec­ If, however, the shortcomings complained of tions indicated clearly the marketing year by the parties are not of such a kind as to from which the Commission intended to affect the legal situation of the undertakings 57 find that the applicant had engaged in the concerned, or, in other words, to affect relevant concerted practice and it also appeared from the pleadings that the party in question had plainly understood the decision 56 — In that connection it has been rightly observed that the in that sense. In those circumstances, the requirement to state reasons is an inevitable corollary of the right to bring legal proceedings, in the sense that it enables Court decided that the decision had to be that right to be exercised under the best possible conditions: see F. Schockweiler, 'La motivation des décisions individu­ elles en droit communautaire et en droit national' Cah. Dr. Eur., 1989, (3), p. 33. 57 — See the judgment in Consten and Grundig [1966] ECR 299, 58 — For the references of those cases see footnotes 54 and 49 at 339. respectively.

'If in that respect a clerical error was made in 61 — I therefore consider that the parallel drawn with Art­ the decision, that error cannot have had any icle 66(1) of the Court's Rules of Procedure by Hüls AG in its written observations is completely misconceived. That material effect on the applicant's understand­ provision empowers the Court, within two weeks after the 60 ing of the Commission's objections.' delivery of a judgment, to 'rectify clerical mistakes, errors in calculation and obvious slips in it'. That power to effect corrections, however, concerns the period after the judg­ ment has been delivered in open court and after each of the parties has been served with a certified copy (see Article 64 of the Rules of Procedure); in contrast, in this case the cor­ 59 — Judgment in Suiker Unie, paragraphs 227 to 232. rections were made to a decision before it was notified to the parties. 60 — Judgment in Hasselblad v Commission, paragraph 40.

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I take the view that that conclusion is mani­ Indeed, in the judgment in Suiker Unie the festly disproportionate. To my mind, the Court held as follows: infringement of Article 190 (assuming there is one) can affect the validity of only the authentic German version of the Decision. According to the fourth paragraph of Art­ icle 189 of the EEC Treaty, one of the essen­ tial characteristics of a decision is that it is an individual legal measure. 63 A decision is intended to apply a general rule (in this case 'There is no reason at all why the Commis­ Article 85 of the EEC Treaty) in a specific sion should not make a single decision cov­ case: therefore it will be binding only on the ering several infringements, even if some of persons to whom it is expressly addressed the undertakings to which it is addressed are and, by virtue of Article 3 of Council Regu­ unconnected with some of these infringe­ lation No 1 of 15 April 1958 determining the ments, provided that the decision permits languages to be used by the European Eco­ each addressee to obtain a clear picture of the 64 nomic Community, only in the language complaints made against it'. 65

of the Member State under whose jurisdic­ tion the addressee comes. Defects in state­ ments of reasons occurring in only one lan­ guage version of a decision therefore affect only the legal position of the addressees to whom that language applies.

Changes in the German version of a decision affect in no respect whatsoever the ability of addressees to whom the decision is notified in another authentic language, namely theirs, to obtain a clear picture of the complaints made against them. Changes made in one Contrary to what Hüls AG, Société arté­ authentic language therefore have no effect sienne de vinyle (hereinafter referred to as on the legality of the decision in the other 'SAV') and Shell ICC argue, that position authentic languages. cannot be altered by the fact that, in this case, the Commission adopted only one decision, albeit in various authentic versions.

22. In addition to the changes made in the 2. Objection of inadmissibility on account of German version of the Decision, the Court new facts raised? of First Instance found, in the context of the measures of investigation which it ordered, two changes made to all the language ver- sions of the Decision between the time when it was adopted by the full Commission and the time when it was notified: (i) the incor­ 23. Before I consider all those complaints, I poration of a completely new fourth para­ must examine the objection of inadmissibil­ graph in point 27 of the Decision (see sec­ ity raised by most of the respondents in so tion 27 below for its wording) and (ii) the far as the Commission raises new facts omission from Article 1 of the operative part therein which were not dealt with by the of the words '(EMC Group)' after the name Court of First Instance. It is claimed that, of the undertaking SAV. notably in paragraphs 5 and 38 of its appeal, the Commission has raised new facts, in par­ ticular with regard to the discussions at the special meeting of the Chefs de Cabinet held in the morning of 19 December 1988, to that The Commission contests the Court of First which the Chefs de Cabinet decided that day Instance's assessment of the two changes, in at their ordinary weekly meeting to recom­ each case by two pleas, which I may summa­ mend to the Commission and to that which rize as follows. As regards the first change, it the full Commission discussed at its meeting argues that the Court of First Instance (i) on 21 December 1988. erred in point of reasoning, in considering that the paragraph added in all the language versions to point 27 of the Decision was not approved by the full Commission and that the substantial nature of the changes made was undeniable; (ii) erred in law, in holding 24. As I mentioned earlier (in section 9), the that it was unnecessary to consider whether Court of Justice is in principle bound by the paragraph in question was substantial in findings of fact made by the Court of First nature; and (iii) erred in law by stating that Instance. Consequently, the Court of Justice its inclusion affected the legality of the Deci­ cannot be influenced by new factual data sion in its entirety. As far as the second adduced by the parties. In fact, in para­ change is concerned, the Commission claims graphs 5 and 38 of its appeal the Commis­ that the Court of First Instance was mis­ sion mentions three factual particulars not taken (i) in point of reasoning, in holding found by the Court of First Instance in its

— Still in paragraph 5 of its appeal, the Commission states that at their ordinary meeting, held in the afternoon of 19 December 1988, the Chefs de Cab­ inet recommended the Commission to adopt the proposal from the Member of In so far as the Commission's argument is the Commission responsible for competi­ based on those factual data it must be tion matters on the terms set out in the declared inadmissible. In concrete terms, in minutes of the special meeting held that my view, the inadmissibility means only that morning. However, the Court of First the Court of Justice, in assessing the com­ plaint set out by the Commission in para­ graph 38 of its appeal — which I have referred to in section 22 concerning the first 66 — A somewhat unhappy reference is made to that document in the third indent of paragraph 26 of the PVC judgment: as change under (i)—, should leave those I have mentioned, the number of that document is SEC newly raised facts out of account. However, (88) 2033, and not, as the Court of First Instance states, 'SEC (88) OJ 945, point 15'. Although the tide, as men­ this does not mean that the whole of the tioned by the Court of First Instance, is 'Note for the attention of Members of the Commission', the document clearly indicates — but this is not stated by the Court of First Instance — that it is the'Minutes of the special meet­ ing of the Chefs de Cabinet held on 19 December 1988', which refers to document No C (88) 2497 (that is to say, 67 — PVC judgment, paragraph 37. See in this connection also the draft decision in English, French and German). the following footnote.

'La Commission prend connaissance du résultat de l'examen de cette question par les 25. According to the Commission, the Chefs de Cabinet lors de leur réunion spé­ Court of First Instance failed to fulfil the ciale (cf. doc. SEC (88) 2033, point 11) et lors duty to state reasons by failing to make suf­ de leur réunion hebdomadaire (cf. doc. SEC ficient findings of fact with a view to its (88) 1958, point 16).' [The Commission took decision that the newly added paragraph (see note of the results of the examination of that section 27 below for its wording) was not matter by the Chefs de Cabinet at their spe­ approved by the full Commission. If the cial meeting (cf. doc. SEC (88) 2033, point complaint is understood to that effect, closer 11) and at their weekly meeting (cf. doc. appraisal shows, in my view, that the Com­ SEC (88) 1958, point 16).] mission's complaint must be held to be well founded. The interpretation given by the Court of First Instance to the minutes of the relevant Commission meeting is an essential part of its reasoning in reaching the decision I find that the way in which the Court of that the paragraph in question was not First Instance reproduces that point in para­ approved by the full Commission. On the graph 37 of the PVC judgment is not basis of that document, the Court of First entirely accurate: (i) the Court does not state Instance held in paragraph 46 that it is that the point in question expressly refers to merely established that the Commission the minutes of the special meeting of the took note of the examination of the case by Chefs de Cabinet (reference number SEC the Chefs de Cabinet at their special meeting (88) 2033, which, according to the docu­ 68 on 19 December 1988. Moreover, in para­ ments and declaration produced by the Commission on 21 November 1991, had appended to it Annex III containing the 69 added paragraph ); and (ii) the Court 68 — According to the Dutch, French, German and Italian ver­ merely finds that the full Commission took sions of the PVC judgment. Only in the English version of the judgment is it stated in paragraphs 37 and 46 that the Commission'took note of the results of the examination'. I therefore assume from this that the first four language ver­ sions most faithfully reproduce the point of view of the Court of First Instance. 69 — See footnote 66 above.

It follows in my view that the conclusion to which the Court of First Instance comes, namely that the full Commission implicitly indicated that it did not wish to take over the Before examining this second complaint, proposed addition, is based on an inaccurate allow me to quote the contested passage of description of the facts. On the contrary, it the PVC judgment: appears to me from the facts set out above that if the full Commission had not wished to take over the proposed addition — of which, in view of section 2 of the minutes, to which I referred earlier, it was manifestly 'That addition to the statement of reasons aware — this would in all probability have for the decision, which relates neither to syn­ been recorded in the minutes. In other tax nor grammar, therefore affects the valid­ words, it appears from the factual informa­ ity of all the measures notified and of the tion that the full Commission implicitly measure published in the Official Journal of accepted, rather than implicitly rejected, the the European Communities, by virtue of the addition suggested by the Chefs de Cabinet. judgment of the Court of Justice in United That point in itself constitutes an infringe­ Kingdom v Council, supra, and it is unneces­ ment by the Court of First Instance of its sary to examine whether the amendment is duty to state reasons, since it based legal of a substantial nature — a point which in 70 consequences on insufficiently established any event is not in doubt.' facts.

27. The added paragraph reads as follows:

26. In addition in connection with the above, I also consider that the Commission's second complaint with regard to the added paragraph — see section 22 above concern­ 'It should be pointed out that any waiver by ing the first change under (ii) — is well the undertakings of confidentiality for their founded, as I will demonstrate next. The complaint consists of the charge that the Court of First Instance was in breach of its duty to state reasons in so far as it held that 70 — Paragraph 47 of the PVC judgment.

On a closer reading of the whole of point 27 of the Decision — where the key question is In my view, in assuming that 'it is unneces­ whether the Commission infringed rights of sary to examine whether the amendment is defence of a number of the respondents by of a substantial nature — a point which in rejecting their demands for full access to its any event is not in doubt'— the Court of administrative files — it further becomes First Instance wrongly neglected to consider clear that the new paragraph has only limited whether the addition in question had had a significance: it merely clarifies why the Com­ material effect on the respondents' under­ mission decided not to accede to the standing of the criticism levelled at them demands of the majority of the undertakings with regard to the infringement of Article 85 that each of them might be allowed to of the EEC Treaty and, as a result, on their inspect, on the basis of reciprocal waivers of right to full legal protection. To my mind, confidentiality, all the documents which the however, no such material effect was present. Commission had obtained from the other The added paragraph is concerned with the undertakings. Strictly speaking, the new question — described by the Court of First paragraph was not even necessary for that Instance as difficult and controversial — whether, in a case where a proceeding insti­ tuted under Article 85 concerns a number of 71 — Cf. PVC judgment, paragraph 44.

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72 — Judgment in VBVB and VBBB v Commission, cited in foot­ note 48, at paragraph 25 (emphasis added). More recently, the Court confirmed this case-law in its judgment in Case C-62/86 AKZO v Commission [1991] ECR I-3359, para­ graph 16. Moreover, the Court of First Instance takes this case-law as its starting point: see in particular the judgments in Case T-7/89 Hercules Chemicals v Commission [1991] ECR II-1711, paragraph 52, and in Case T-9/89 Hüls v Commission [1992] ECR II-499, paragraph 47. In both those judgments, the Court of First Instance stated that in so far as the Commission had developed rules on access to files which went further than was required by the rights of the defence, and published them in its reports on competi­ tion policy, it could not deviate from the rules which it itself had laid down: judgment in Case T-7/89 Hercules In view of the foregoing, I take the view that Chemicals v Commission, paragraph 53; judgment in Case it is unnecessary to consider the Commis­ T-9/89 Hüls v Commission, paragraph 48; see also in this connection the judgment of the Court of First Instance in sion's third complaint — set out in sec­ Joined Cases T-10/92, T-11/92, T-12/92 and T-15/92 Cimenteries CBR v Commission [1992] ECR II-2667, para­ tion 22 above, first change, under (iii) —, graphs 40 and 41, and, very recently, the judgment in Case T-65/89 BPB Industries and British Gypsum v Commission namely that the sanction imposed by the [1993] ECR II-389, paragraph 29. Court of First Instance was excessive.

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In contrast, SAV argues that the omission from the operative part of the Decision of 'where, as in this case, the amended measure the reference to the EMC Group — an omis­ imposes fines and obligations on the address­ sion which affects it particularly — may ees of the measure and where the amend­ influence the manner in which the alleged ment in question may alter the description of infringement is attributed and shift the finan­ the legal person upon whom the obligations cial burden of the fine imposed. are imposed. That is the necessary conse­ quence of the amendment to Article 1 of the operative part of the decisions, in which the Commission, on the basis of the consider­ ations set out in the statement of reasons, forms a legal definition of the facts in terms of Article 85 of the EEC Treaty and desig­ 30. My I briefly recapitulate what the Court nates the undertakings guilty of infringe­ of First Instance decided in this respect. ments. Consequently, such an amendment After finding that the reference in question necessarily has a direct effect on the other was included in the drafts submitted to the full Commission but was omitted from the version notified to the respondents and pub­ lished in the Official Journal, the Court of 73 — PVC judgment, paragraph 49.

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articles of the operative part which, by issu­ out, in all material respects, the instructions ing orders to the applicants and imposing given to it by the parent company'. fines on them and by determining the method by which the addressees of the mea­ sures may release themselves from their obli­ gations, merely set out the consequences necessarily flowing from Article 1 of the operative part, the very article to which an 74 amendment was made.'

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only to SAV as such, without describing it as on the ability of the other undertakings to a subsidiary of any parent company. which the Decision is addressed accurately to read in the Decision what complaints were made against them, and certainly could have had no effect on the imputability of the infringement of Article 85 of the EEC Treaty with which they themselves were charged.

32. It follows from the whole of the above that, regard being had to the text of the 78 Decision as a whole, the contested amend­ ment had, and could have had, no effect at all V — The requirements of the EEC Treaty as on the imputability of the alleged infringe­ to the coming into being of acts of the ment to SAV or therefore on that undertak­ Commission, more specifically with regard ing's understanding of the Decision and its to the adoption of authentic language ver- right to legal protection. In so far as it sions of a decision ignored that test and failed to apply it to the contested amendment, the Court of First Instance failed to comply with Community law and to fulfil its duty to state reasons, respectively. 34. The Commission takes the view that the PVC judgment is based on a manifestly excessively formalistic interpretation of the requirements of the EEC Treaty with regard to the action of the full Commission in adopting measures. It argues that the judg­ 33. This brings me to the Commission's last ment is based on a legal misconception in so complaint, namely that the Court of Justice far as it requires the full Commission to be wrongly held that the omission of that refer­ involved in the adoption of all the authentic ence affected the legality of the entire Deci­ language versions of its measures. The sion in relation to all the respondents. I can requirements of the EEC Treaty and of the link this to what I have said (in section 21) Rules of Procedure as regards the action of about the changes made in the German ver­ the full Commission were, it maintains, fully sion: the omission of the reference '(EMC complied with with respect to the adoption Group ) ' after SAV could have had no impact of the Decision.

state precisely what was decided on this first paragraph of Article 12 of the Commis­ point at first instance. The contested para­ sion's Rules of Procedure: graphs are located in the part of the PVC judgment in which the Court of First Instance considers the powers of the author­ ity which adopted the Decision and, more specifically, examines whether the Member 'It follows from those provisions taken of the Commission responsible for competi­ together that, where as in this case the Com­ tion matters was empowered to adopt the mission intends to adopt by a single measure Dutch and Italian versions of the Decision a decision which is binding on a number of which were notified and published in the legal persons for whom different languages Official Journal. A number of applicants must be used, the decision must be adopted before the Court of First Instance claimed in each of the languages in which it is bind­ that the authority which adopted the Deci­ ing in order to avoid making authentication sion lacked the necessary competence on the impossible.' ground that it appeared from the minutes of the 945th meeting of the full Commission that the full Commission adopted the Deci­ sion only in its English, French and German versions and authorized the Member of the The Court of First Instance subsequently Commission responsible for competition rejects the Commission's argument that the matters, at that time Mr P. Sutherland, to mandate conferred upon the Member of the adopt the other official language versions, Commission responsible for competition namely the Dutch and Italian. Moreover, it matters by the full Commission in order to appears that those language versions were adopt the Dutch and Italian versions of the not submitted to the General Secretariat of Decision complied with Article 27 of the 81 the Commission until 16 January 1989, Rules of Procedure. In its view, the adop­ whilst Mr Sutherland's mandate expired tion of a decision applying Article 85(1) of on 5 January 1989. the EEC Treaty does not constitute a mea­ sure of management or administration within the meaning of Article 27 of the Rules of 82 Procedure. It is, according to the Court, 'apparent from the aforesaid first paragraph of Article 27 ..., in conjunction with the sec-

ond paragraph thereof,' that the full Com­ Article 85 et seq. of the EEC Treaty always mission may delegate authority to one of its need to be taken collectively. Where, how­ members to adopt such a decision solely in ever, such as in case of the decision at issue, those official languages of the Community in the full Commission has adopted a decision which the text is not authentic, since the the text of which is drawn up in one, two or decisions adopted in those languages do not three official Community languages, it has produce any legal effect and are not enforce­ correctly carried out its duties. In taking a able against one or more of the undertakings decision, a distinction has to be made mentioned in the operative part of the deci­ between the intellectual and formal compo­ 83 sion. The Court of First Instance eventu­ nents. The intellectual element is situated at ally decides on the ground set out in the fol­ an internal stage of the decision-taking, in lowing paragraph of its judgment that the the formation, after examining and discuss­ Member of the Commission responsible for ing the file, of a collective view; in contrast, competition matters lacked competence the formal component consists of all the ratione materiae to adopt the Decision in measures of execution which definitively Dutch and Italian: give the measure its effect in law (drafting, translation, finalization, notification and publication). Only the first component involves the exercise of any discretionary powers and it is therefore only in that con­ nection that action by the full Commission 'The effects flowing from the adoption of a makes any sense. Since the translation of a decision in its authentic language version are decision, including the adoption of the entirely different. A decision which estab­ authentic language versions, is a purely lishes an infringement of Article 85 of the administrative executive measure, it must be Treaty, issues orders to a number of under­ possible for such steps to be taken without takings, imposes large fines upon them and is express specific habilitation by the full Com­ directly enforceable for these purposes mission, on the authority of the appropriate clearly affects the rights and obligations and Member of the Commission. In that connec­ the property of those undertakings. It cannot tion, the Commission further observes that be regarded merely as a measure of manage­ the habilitation which was given to the ment or administration whose adoption falls Member of the Commission responsible for within the powers of a single Member of the competition matters according to the min­ Commission since this would be directly utes of the 945th meeting was not a habilita­ contrary to the principle of collegiate tion in the strict sense of Article 27 of the responsibility expressly referred to in Art­ Rules of Procedure: it was not even an 84 icle 27.' administrative or management measure but a task admitting of no room for manoeuvre and no exercise of discretion. The Commis­ sion maintains that should the Court never­ theless hold that a habilitation within themeaning of that provision was involved, the habilitation would a fortiori be in accor­ 36. The Commission concedes that decisions dance therewith. taken against undertakings in relation to

between the intellectual and formal compo­ known that the principle of collegiate nents of a decision is completely artificial responsibility underlies the Commission's and has no basis in the EEC Treaty, the decision-taking process. At treaty level, Rules of Procedure or the Court's case-law. that principle is reflected in the first para­ At the hearing, they further submitted that if graph of Article 17 of the Merger Treaty, the Commission is right, that would pre­ which states that 'The Commission shall act clude the authentication procedure laid by a majority of the number of [its] mem­ 86 down in Article 12 of the Rules of Procedure bers'. This is elaborated on by the Rules of from being used for language versions which Procedure, which provide, inter alia, that the had not been submitted to the full Commis­ Commission is to act collectively in accor­ sion for adoption. As a result, Article 12 dance with the Rules of Procedure (Article would lose its binding nature. 1) and that acts of the Commission are, as a general rule, to be adopted at meetings (Art­ icle 2). The Court of Justice itself appositely set out the rationale for the principle of col­ legiate responsibility in its judgment of 23 September 1986 in AKZO v Commis- 37. In the next sections I shall address the sion: central issue here, namely whether or to what extent the Commission, after adopting a decision relating to competition matters addressed to undertakings in one or more language versions, may proceed, under Art­ icle 27 of its Rules of Procedure, to delegate the adoption of (other) authentic language versions of the decision to the Member of the Commission responsible for competition matters. I shall not now examine whether the 'The principle of collegiate responsibility Court of First Instance gave, in paragraph 55 thus laid down [that is to say, in Article 17 of of its judgment (cited in section 35 above), a the Merger Treaty] is founded on the equal correct interpretation of Article 12 of the participation of the members of the Com­ Rules of Procedure: this will become clear mission in the adoption of decisions and it from the analysis of that provision set out in follows from that principle, in particular, the next part of my opinion. that decisions should be the subject of a col­ lective deliberation and that all the members

However, the Rules of Procedure themselves contain a number of exceptions to this colle­ giate method of decision-taking, in particular the so-called written procedure under Art­ icle 11 (by which the approval of the Mem­ bers of the Commission is obtained by writ­ ten means) and, particularly, the delegation of powers under the first paragraph of Art­ 88 icle 27. Since its amendment in 1975 that provision reads as follows: In order to answer that question I shall con­ sult the case-law of the Court of Justice, where to my mind the aforementioned judg­ ment of 23 September 1986 in the AKZO case is of decisive importance. I would men­ tion that, before both the Court of First Instance and the Court of Justice, the Com­ mission has relied upon that judgment in 'Subject to the principle of collegiate respon­ support of its view that the procedure fol­ sibility being respected in full the Commis­ lowed in this case was consistent with the 9 sion may empower its members to take, in principle of collegiate responsibility. 0 The its name and subject to its control, clearly Court of First Instance was evidently not defined measures of management or adminis­ convinced thereby, since it treated the 89 tration.' AKZO judgment as a precedent only as regards the possibility afforded by Article 27 of the Commission's Rules of Procedure of adopting measures of inquiry and procedure 87 — Judgment in Case 5/85 Akzo Chemie v Commission [1986] ECR 2585, paragraph 30. during the Commission's preparatory admin­ 88 — For the reference of the relevant Commission decision, see istrative phase, that is to say, measures footnote 80. 89 — The remaining paragraphs of Article 27 read as follows: adopted under the general powers of investi­ 'Officials may also Be empowered to take such measures if gation conferred upon the Commission by this is indispensable for the Commission properly to be 91 able to fulfil its tasks. Regulation No 17. Unless they have been delegated to him personally powers vested in an official shall be valid for his deputy. Powers conferred in this way may not be sub-delegated except to the extent expressly laid down in the enabling decision. The provisions of this article shall not affect the rules con­ 90 — See, as regards the proceedings before the Court of First cerning delegation in respect of financial matters and staff Instance, paragraph 16 of the PVC judgment. administration.' 91 — PVC judgment, paragraph 57.

40. The AKZO case was concerned with an Next, the Court explained that two consider­ action for a declaration of nullity brought by ations underlay that settled case-law: two undertakings in the AKZO Group against a decision taken by the Member of the Commission responsible for competition matters ordering those undertakings to sub­ mit to investigations pursuant to Art­ 'On the one hand, such a system of delega­ icle 14(3) of Regulation No 17. The undertak­ tion of authority does not have the effect of ings argued, inter alia, that the delegation of divesting the Commission of powers by con­ authority under which the contested decision ferring on the member to whom authority is was adopted was not in accordance with the delegated powers to act in his own right. principle of collegiate responsibility laid Decisions adopted under a delegation of down in Article 17 of the Merger Treaty. authority are adopted in the name of the Commission, which is fully responsible for them, and may be the subject of an applica­ tion for annulment under the same condi­ tions as if they had been considered by the full Commission. Moreover, the Commis­ sion has set up machinery making it possible to reserve for the full Commission certain measures which could be adopted under a delegation of authority. Finally, it has The Court of Justice rejected that plea in retained the right to reconsider the decisions strong terms. In order to assess the compat­ granting delegations of authority. ibility with the principle of collegiate responsibility of the authorization procedure as provided for in particular in Article 27 of the Commission's Rules of Procedure, it first recalled its settled case-law, according to On the other hand, limited to specific cate­ which gories of measures of management or admin­ istration, and thus excluding by definition decisions of principle, such a system of dele­ gations of authority appears necessary, hav­ ing regard to the considerable increase in the number of decisions which the Commission is required to adopt, to enable it to perform its duties. The need to ensure that the decision-making body is able to function 'the Commission could, within certain limits corresponds to a principle inherent in all and subject to certain conditions, authorize institutional systems and which is set out its members to adopt certain decisions in its in particular in Article 16 of the Merger name without the principle of collegiate Treaty, according to which "the Commission responsibility which governed its function­ 92 shall adopt its rules of procedure so as to ing being impaired by such authorization'. ensure that both it and its departments 3 operate ...". '9

41. I infer the following from that passage. place, the authorization should comply with In the first place, it appears to me that the certain limits as regards powers, which means scope of those paragraphs of the judgment (i) that the Commission may not let the go far beyond the dispute in AKZO, all the power out of its hands — in other words, the more since the wording used by the Court delegated power may not be transformed sets out principles — and does not merely into an actual power transferred to a Mem­ address the measures of procedure taken ber of the Commission — in order that there pursuant to Regulation No 17 which pre­ may be no doubt as to'the identity and pow­ ceded the decision at issue — and only pro­ ers of the decision-making body, namely the ceeded in subsequent paragraphs to apply Commission'; 95 (ii) that the Commission those principles to the actual position under must continue to bear full responsibility (an 94 discussion in the AKZO case. essential element of the principle of colle­ giate responsibility); and (iii) that it should retain the power to reserve a delegated mat­ ter to itself as the full Commission and to reconsider decisions granting delegations of Next, it seems to me that the idea underlying authority. In the second place, actions must the Court's argument approving the Com­ be able to lie against decisions taken pursu­ mission's delegation and authorization pro­ ant to authorization under the same condi­ cedure is that the principle of collegiate tions as if they had been taken by the full responsibility must be rendered consonant Commission. In other words, the legal pro- with, and therefore limited by, the principle tection afforded to the addressees may not be of the proper functioning of the decision­ affected: they may not be deprived of the making body, an institutional principle opportunity of contesting the legality of the which, according to the Court (and this decision delegating authority or of the deci­ statement too is important: see section 55 sion adopted under the delegation of author­ 96 below), is the hallmark of the Commission's ity. Rules of Procedure. In view of the increasing number of decisions having to be taken by the Commission, the Court even considers the authorization procedure to be necessary in the light of that principle for the due per­ formance of the Commission's tasks, at least 3. The various levels of decision-making as far as certain categories of measures of powers management and administration are con­ cerned.

In the first place, there is the exercise of So-called measures of management and power at the political level. This is at the administration in the narrow sense of the heart of the policy-making power which the expression are on a second level. In competi EEC Treaty confers on the Commission in tion cases, such measures include above all the sphere of competition, whereby the measures of investigation, which are mea Commission gives shape to its competition sures which the Commission proceeds to policy by means of general administrative take during the preparatory decision-making

98 sized in the PVC judgment in common one. This category includes, for example, with the Commission in its appeal, the adop decisions which the Commission may take tion of decisions against undertakings under under Article 14(3) of Regulation No 17 Article 85 et seq. of the EEC Treaty belongs ordering undertakings to submit to investi in this category: such decisions are subject to gations. In the AKZO judgment, the Court held that, in so far as the criteria set out above (in section 41) are met, the exercise of that power may be delegated to the Member 97 — Cf. the distinction which the Court made as long ago as the judgment in Köster, with regard to the separation of powers between the Council and the Commission in the sphere of the common agricultural policy, between essential and implementing measures: judgment in Case 25/70 Einfuhr- und Vorratsstelle v Köster [1970] ECR 1161, paragraphs . 99 — Early on, the Court held, in the context of the ECSC, that Recently, the Court explained that the description 'essential a discretionary power conferred on a Community institu rules' must be reserved for'provisions intended to achieve tion by the Treaty 'implying a wide margin of discretion the fundamental objectives of Community policy' (unoffi which may, according to the use which is made of it, make cial translation): judgment of 27 October 1992 in Case possible the execution of actual economic policy' could not C-240/90 Germany v Commission [1992] ECR I-5383, para be delegated, since that would bring about'an actual trans

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of the Commission responsible for competi­ include no discretion. A well-known exam­ tion matters: ple is the power conferred on the Director- General for Competition to notify objec­ tions within the meaning of Article 2 of Commission Regulation No. 99/63/EEC. The Court has repeatedly endorsed the law­ fulness of that practice in the light of Art­ icle 27 of the Commission's Rules of Proce­ '... a decision ordering an undertaking to dure: the official in question'acted not under submit to an investigation is a form of prepa­ a delegation of powers, but merely under an ratory inquiry and as such, must be regarded authorization to sign which he had received as a straightforward measure of management 102 from the Member of the Commission'. ... even if the undertakings are opposed to 10 Such conferral of authorization to sign, the investigation'. 0 according to the Court, constitutes 'a mea­ sure relating to the internal organization of 103 the departments of the Commission' and is 'the normal method by which the Com­ 104 mission exercises its powers'.

Finally, there is the level of practical execu- tion, including measures relating purely to internal organization. Strictly speaking, no delegation of power is involved: the mea­ sures in question are for the practical execu­ 4. Application of the difference in levels of tion of decisions which have already been decision-taking to the questions at issue in taken, such as the communication or trans­ this case mission of decisions to the addressees and 101 other practical implementation measures. Such practical implementing measures

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case, I would like to make the following sion and decision-making (see section 38 remark concerning the use of languages in above). the internal functioning of a Community institution such as the Commission. In com­ mon with all the Community institutions, the Commission works officially in all offi­ 105 cial languages of the Community. This does not, however, prevent it from using one The respondents' argument that providing a or more Community languages as its official draft decision in all authentic language ver­ working language, provided that in its exter­ sions to the full Commission constitutes a nal action it fully complies with the principle guarantee for the purposes of supervising of the equality before the law of all official those versions (since at least one Member of Community languages, as laid down in Regu­ 106 the Commission whose mother tongue is lation No 1. The choice of such working one of those languages concerned can check language or languages may, in the terms of the relevant language version) cannot be the judgment in AKZO (see section 41 taken seriously: Members of the Commis­ above), appear necessary for the proper func­ sion act at the level of deliberation and tioning of the Commission as a body with decision-making — which, as I have already decision-taking power, that is to say, for the stated, can take place for practical reasons in purposes of effective deliberation and one or more of the Commission's working decision-making. In that respect, I consider languages — and not at the level of the lin- that the full Commission may, in competi­ guistic supervision of a text. tion cases, too, take a decision on the basis of a draft decision drawn up in one or more of the Commission's working languages: what is important is that, in the light of the prin­ ciple of collegiate responsibility, all Members of the Commission should be in a position to participate, on the basis of a language of 44. This leads me to take the following view. which they have a command, in the discus­ The principle of collegiate responsibility is

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Dutch or Italian made any submission on land's successor. I shall examine in the last 109 part of my Opinion whether this shortcom­ this point at first instance. ing is such as to affect the legality or even the existence of the Decision.

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47. There are, in my view, two closely arises under Article 16 of the Merger Treaty, related key legal questions involved here, which provides as follows: namely (i) what legal significance is to be ascribed to the authentication of Commis­ sion decisions under Article 12 of the Com­ mission's Rules of Procedure and (ii) may third parties invoke a failure to comply with that provision. In order to deal with these questions properly, I shall first consider the case-law which the Court of Justice has 'The Commission shall adopt its rules of developed more generally with regard to the procedure so as to ensure that both it and its legal status and invocability of the rules of departments operate in accordance with the procedure of a Community institution or provisions of the Treaties establishing the body. European Coal and Steel Community, the European Economic Community, and of this Treaty. It shall ensure that these rules are published.'

A. Status and invocability of rules of proce- dure according to the case-law of the Court

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49. For the rest, the Treaties do not embody It follows that natural or legal persons may express rules on the legal status of the rele­ not rely on an alleged breach of those rules vant rules of procedure or on the question of since they are not intended to ensure protec­ 118 their invocability. The Court of Justice has tion for individuals.' considered these aspects with reference to the Council's Rules of Procedure in its judg­ ment of 7 May 1991 in Nakajima v Coun- 16 cil. 1 In that judgment the Court was con­ cerned with an anti-dumping case in which Nakajima claimed that a definitive anti­ dumping regulation should be declared void. To that end, it argued inter alia that essential procedural requirements had been infringed, on the ground that the Council had acted in breach of two provisions of its Rules of Pro­ 50. There has been a lot of discussion about cedure: it alleged that the period laid down the value as a precedent for this case of the for drawing up the provisional agenda for judgment in Nakajima. The Commission the Council meeting had not been complied relied upon it already at the hearing at first with (infringement of Article 2) and that not instance in support of its contention that all the language versions of the regulation third parties are not entitled to invoke Art­ were available on the day when it was icle 12 of the Commission's Rules of Proce­ 117 adopted (infringement of Article 8). The dure. However, the Court of First Instance Court rejected those arguments in strong emphatically dismissed that approach: terms:

Before the Court of Justice the Commission again invoked the judgment in Nakajima. At the hearing the Commission's representative argued that, although the Court of First Instance had discussed that judgment — which was delivered after the written proce­ dure at first instance had closed —, the judg­ ment had not been given the attention which it deserved with regard to the questions at In paragraph 77 of the PVC judgment, the issue in this case. Court of First Instance refers to a consider­ able number of judgments of the Court of Justice in staff cases but also in 'other areas of Community law' and claims that:

2. The so-called 'settled case-law' of the Court of Justice concerning invocability

52. On scrutinizing the judgments cited by Only in the last judgment cited, Funoc v the Court of First Instance, I must to a large Commission, did the Court base its legal extent agree with the Commission's criti assessment partly on the Commission's cism. In none of those cases did an applicant Rules of Procedure. The applicant claimed expressly plead an infringement of the rules that a Commission decision requesting the of procedure of a Community institution. reimbursement of money and refusing to pay Consequently, in none of them did the the balance in respect of a project of the Court of Justice have to determine whether there had been an infringement of the rele vant rules of procedure and whether the 121 — This case was concerned with an action brought by a French company to annul a Council agricultural regula applicant could rely on that infringement. tion laying down a production quota for isoglucose.

lardi Ricci. In the judgment in Bemusset, the Court of emergency procedure provided for by the Rules of Proce Justice runs over the procedure which the Commission dure of the Parliament (it appears from the Opinion of followed in Case 94/63 in taking the contested appoint Advocate General Reischl that the relevant provision of ment decision (namely the written procedure provided for the Parliament's Rules of Procedure was Article 14). Cf. in Article 11 of the Rules of Procedure) but only in the the almost identical pronouncement made by the Court on context of the question whether the safeguards laid down the same day in Case 139/79 Maizena v Council [1980] by Article 45 of the Staff Regulations of Officials of the ECR 3393, at paragraph 37. Later the Court was to refer EEC for the benefit of officials eligible for promotion has to that passage in Roquette Frères in its judgment of 10 been complied with: Bemusset [1964] ECR 297, at 310. In July 1986 in Case 149/85 Wybot v Faure [1986] ECR 2391, other words, the Court mentioned the Rules of Procedure at paragraph 24. only in the context of the examination of the facts.

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European Social Fund was unlawful on the question as to whether the rules of proce­ ground that it was not taken by the compe­ dure of a Community institution may be tent body (namely the Commission itself), pleaded (see section 55 below). but by the Head of Division of Directorate- 123 General V, who signed the decision. The Court rejected that argument by reference to Article 27 of the Rules of Procedure and the case-law cited above (in section 42) on the grant of authority to sign:

This does not mean that, apart from the cases cited by the Court of First Instance and the judgment in Nakajima, there are no other decisions in which the Court of Justice I shall be presently returning to discusss the involved provisions of the rules of procedure significance of this judgment as regards the of a Community institution or body in its legal reasoning or assessed acts of the institu­ tion or body from the point of view of their 123 — According to the Report for the Hearing, Funoc did not consistency with the relevant rules of proce­ claim that the Commission's Rules of Procedure had been dure. However, in no such judgment has the infringed, but Article 6(1) of Council Regulation (EEC) No 2950/83 of 17 October 1983 (OJ 1983 L 289, p. 1). In Court of Justice expressly stated a view on its opinion it followed from that provision that the deci­ sion should have been taken by the Commission itself. the legal status of such rules of procedure. 124 — Judgment in FUNOC, paragraph 14. What is more, that case-law has no bearing

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However, in my view, the opposite conclusion, to wit that such rules of procedure may in principle not be invoked, cannot be inferred either 54. All the above reinforces my finding that the only case-law of the Court of Justice which has genuine force of precedent is the judgment in Nakajima: only in that case did the Court expressly pronounce upon the legal status of the rules of procedure of a Community institution and upon the ques tion whether an individual natural or legal 125 — See in particular the judgment in Case 298/81 Colussi v person outside the institution can plead an Parliament [1983] ECR 1131, paragraph 10; the judgment in Case 223//82 De Bruyn v Parliament [1983] ECR 2879, infringement of such rules.

dom v Council [1988] ECR 855, paragraph 48; see also the Yvan Blot and Front National v Parliament [1990] ECR judgment in Case 131/86 United Kingdom v Council, as I-2101. In both cases, a member of the Group of the Euro discussed above (in section 10 et seq.). In cases where the pean Right of the European Parliament brought an action Member State was not a member of the institution con for the annulment of internal measures adopted by the cerned, the Court shows signs of reluctance: thus it repeat

paragraphs 43 and 44. Similar reluctance is to be seen in did not discuss whether or not the provisions of the Par the judgment in Case 278/84 Germany v Commission liament's Rules of Procedure which were invoked by the [1987] ECR 1, paragraphs 12 and 13. parties could be pleaded.

55. The question is therefore whether the Court of First Instance correctly interpreted the judgment in Nakajima where it distin­ guished between those provisions of an insti­ Nevertheless, the Court's case-law does not tution's rules of procedure which are con­ completely preclude the possibility of indi­ cerned solely with the internal working viduals' relying on rules of procedure, at arrangements of the institution (whose least in so far as the provision in question is, infringement therefore may not be invoked) in the words used in paragraph 50 of the and those provisions which create rights and judgment in Nakajima, 'intended to ensure are a factor contributing to legal certainty protection for individuals'. An apposite illus­ (whose infringement therefore may be tration of a provision of the Commission's invoked). Rules of Procedure which satisfies that requirement is afforded by Article 27 relating to the delegation of authority. The judg­ ments in AKZO, VBVB and VBBB v Com- mission and Funoc v Commission indicate, implicitly but surely, that, in an appropriate case, a third party may plead an infringement 128 of that provision. Moreover, that is no I consider that a qualified answer must be more than logical: as I stated earlier (in sec­ given. It follows in any event from the tion 38 et seq.) the problem of delegation Court's case-law that the second situation is and the associated power of representation is rather an exception than the rule: the rules of closely bound up with the principle laid procedure of a Community institution have down by the Treaty of the collegiate respon­ the main aim, according to the judgments in sibility of the Commission and with the AKZO and Nakajima (see sections 41 and 48, question whether a measure was adopted or respectively, above), of regulating the inter­ carried out by an authority with the power nal functioning of the institution with a view to do so. The latter question is concerned to its sound administration. This approach with competence and is therefore subject to applies a fortiori to the Commission in view review of legality by the Court under the of the imperative set out in Article 16 of the first paragraph of Article 173 of the EEC Merger Treaty (quoted in section 48 above). Treaty. It further clearly follows from the judgment in Nakajima that natural or legal persons may not plead an infringement of the provi­ sions of rules of procedure which relate to 128 — See paragraph 14 in fine of the judgment in VBVB and VBBB v Commission, cited in footnote 48, and para­ the organization and decision-making of the graph 14 in fine of the judgment in Funoc v Commission, as set out in section 52; it appears therefrom that the institution in question and therefore aim at Court considers it possible for an applicant to provide ensuring that internal discussions are proof that the rules on delegation or on the grant of the authority to sign were infringed.

1. The interpretation given by the Court of First Instance According to the Court of First Instance, the authentication procedure fulfils more specif­ ically the following functions:

57. I would first run through the main pas­ sages of the PVC judgment in which the Court of First Instance sets out its views on the authentication procedure provided for in Article 12 of the Commission's Rules of 'First, authentication of the measure certifies Procedure. The fundamental standpoint that it exists and that its terms correspond adopted by the Court of First Instance is set exactly to those of the measure adopted by out in paragraph 72 of the PVC judgment: the Commission. Secondly, since the measure is dated and bears the signatures of the Pres­ ident and the Secretary General, authentica­ tion guarantees the competence of the 'The procedure for authenticating measures authority issuing the measure. Thirdly, by provided for by that provision of the Com­ rendering the measure enforceable, authenti-

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cation ensures that it is fully incorporated in the Treaty and are not at the disposal of into the Community legal order. the Member States or of the institutions 130 themselves".'

130 — PVC judgment, paragraph 76. 131 — See paragraphs 72 and 75 of the PVC judgment. 132 — PVC judgment, paragraph 74 in fine and paragraph 75. 129 — PVC judgment, paragraph 75. 133 — PVC judgment, paragraph 75.

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Rules of Procedure. It comes at the end of 'Article 12 that section, which deals solely with the way in which the Commission deliberates and takes decisions at meetings or by means of a 134 written procedure. As the Commission argues and the Court of First Instance 135 accepted in its judgment, Article 12 and Acts adopted by the Commission, at a meet­ Article 10 of the Rules of Procedure are ing or by written procedure, shall be authen­ closely connected. I shall set out both provi­ ticated in the language or languages in which sions in full: they are binding by the signatures of the President and the Executive Secretary.

'Article 10 The texts of such acts shall be annexed to the minutes in which their adoption is recorded.

The President shall, as may be required, notify acts adopted by the Commission to Minutes shall be taken of all meetings of the those to whom they are addressed.' Commission.

required, the President is to notify the deci­ dure to adopt a measure of administration or sions to the persons to whom they are management does not mean that such deci­ addressed. sions have been adopted by an authority lacking the requisite competence. If the Court of First Instance meant that authenti­ cation guarantees that a measure was adopted by a habilitated authority within the 3. Authentication — a guarantee with regard Commission, I consider that the Court's to the competence of the authority which case-law set out above (in section 40 et seq.) adopted the decision and its compliance with with regard to the principle of collegiate procedural requirements, in particular the responsibility and the requirements for dele­ duty to state reasons laid down by Art­ gation affords sufficient guarantees in that icle 190 of the EEC Treaty? respect to individuals in order to challenge a decision adopted by a Commission Member or official lacking the necessary competence.

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4. Articles 191 and 192 of the EEC Treaty the Court shows signs of flexibility with more closely considered regard to the formal way in which notifica­ tion must be effected: it has consistently held since the judgment in Continental Can that 'a 61. In order to assess the other functions decision is properly notified within the ascribed by the Court of First Instance to meaning of the Treaty if it reaches the authentication, including the role played by addressee and puts the latter in a position to 139 authentication for the purposes of compli­ take cognizance of it'. That case-law is a ance with the other procedural requirements logical continuation of the judgment in laid down by the EEC Treaty and its imple­ ALMA v High Authority, where the Court menting rules, I consider that I should first held, on the ground of a 'a principle of law examine the significance of Articles 191 recognized in all countries of the Commun­ and 192 of the EEC Treaty more closely. The ity', that 'a written declaration of intent procedural requirements laid down by the becomes effective as soon as it arrives in due EEC Treaty with regard to decisions in com­ course within the control of the 14 petition cases imposing a pecuniary obliga­ addressee'. 0 The decisive test as to whether tion on natural or legal persons are precisely the notification requirement laid down in set out in those two articles — as well as in Article 191 of the EEC Treaty has been ful­ Article 190, which has already been dis­ filled is, in other words, whether the cussed. addressee has been given actual access to the 141 decision in question. As the Court held in the Geigy and ICI judgments, irregularities in 62. The second paragraph of Article 191 of the manner in which a decision was notified the EEC Treaty provides in the first place, do not affect the measure itself and therefore that 'decisions shall be notified to those to cannot make it invalid: at most such irregu­ whom they are addressed'. In other words, larities may in certain circumstances prevent notification is an essential formality in order the period within which an application must 138 for a decision to take effect. Nevertheless,

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143 to which this undertaking belongs'. How ever, according to the Court, the fact that the Commission also sent the undertaking copies of the decision in other languages is not such as to call into question the validity of the In the judgment in Consten and Grundig, decision. 144 the Court expressly held with regard to a decision based on Article 85 of the EEC Treaty that 'only the text which is notified to 146 the addressees is authentic'. Consequently, the addressee cannot rely upon a mistake in

145 with it. This is also clear from the fact of judgments of the Court) which impose a that the period for bringing proceedings for pecuniary obligation on natural or legal per a declaration of nullity under Article 173 of sons, such as in 'Article 85' cases. Such deci the EEC Treaty does not begin to run until sions are enforceable vis-a-vis such persons (first paragraph of Article 192). The order for their enforcement must be appended to the decision by the national authority desig 142 — Judgments cited in footnote 75, ICI v Commission, at paragraphs 39 and 40, and Geigy v Commission, at para nated for this purpose by the Government of

144 — Judgment in Suiker Unie v Commission, paragraph 115. footnote 49, at 337. 145 — Judgment in Case 98/78 Racke v Hauptzollamt Maim 147 — Ibid. Consten alleged infringement of essential procedural [1979] ECR 69, paragraph 15 in fine. See also in that con requirements on the ground that the text published in the nection H.-W. Daig and G. Schmidt, 'Artikel 191', in Von Official Journal was described as a directive. der Groeben-Thiesing-Ehlermann, Kommentar zum 148 — For a survey of the competent authorities designated by EWG-Vertrag, IV, p . 4991, No 20; E. Grabitz, 'Ar the Member States, see J.-V. Louis, 'Article 192', in Le droit tikel 191', in Grabitz Kommentar zum EWG-Vertrag, de la Communauté économique européenne (Commentaire p . 32, No 8. Mégret), Part 10, pp. 516 and 517, footnote 5.

65. I am also unable to see in the light of Articles 191 and 192 of the EEC Treaty how authentication in accordance with Articles 10 and 12 of the Commission's Rules of Proce­ dure affords vis-à-vis persons to whom the decision is addressed any additional guaran­ 5. Assessment of the other functions ascribed tee as to the actual existence and content of by the Court of First Instance to authentica­ the measure. According to the Court's case- tion in the light of these articles of the Treaty law, where a Commission decision is notified to a natural or legal person in accordance with the second paragraph of Article 191 of the EEC Treaty, the notified measure alone is authentic and can have its authenticity veri­ fied by the national authorities, with a view to appending the order for enforcement (see sections 62 and 63 above). At that point the 64. If I assess in the light of Articles 191 Commission is no longer entitled — unless and 192 of the EEC Treaty the other func­ the measure should appear non-existent (see tions which the Court of First Instance section 77 below) — to withdraw the decla­ regards as attaching to the authentication ration of intent which it has expressed. That procedures provided for in the Commis­ would conflict with the principles of legal sion's Rules of Procedure, I am bound to certainty and of the protection of the legiti­ find straight away that the function of ren- mate expectations of the addressee, who can 15 dering a Commission decision enforceable assume that the measure is lawful. 0 Only if and ensuring that it is incorporated into the a measure is unlawful may the Commission Community legal order does not stand up. In withdraw it, yet, according to the established this connection the Court of First Instance case-law, even in such an event only 'pro­ wrongly ignored completely the second vided that the withdrawal occurs within a paragraph of Article 191 of the EEC Treaty reasonable time and provided that the and the case-law developed by the Court of Commission has had sufficient regard to Justice on the basis of that article, and Art­ how far the applicant might have been led to 151 icle 192 of the EEC Treaty, which alone lay rely on the lawfulness of the measure'. down the conditions under which a decision takes effect and by which it forms a part of the Community legal order and becomes enforceable. Before it is notified in accor­ 150 — See the judgment in Case 15/85 Consorzio Cooperative d'Abruzzo v Commission [1987] ECR 1005, in particular dance with those provisions, a decision can­ at paragraphs 13 and 17. not enter into force and cannot be enforce­ 151 — Judgment in Consorzio Cooperative d'Abruzzo v Commis- sion, paragraph 12; judgment in Case 14/81 Alpha Steel v Commission [1982] ECR 749, paragraph 10; see the judg­ ment in Joined Cases 7/56 and 3 to 7/57 Algera v Com- mon Assembly [1957 and 1958] ECR 39, at 61, as long ago as 12 July 1957; judgment in Case 14/61 Hoogovens v 149 — E. Grabitz, 'Artikel 192', in Grabitz Kommentar zum High Authority [1962] ECR 253, at 272; judgment in EWG-Vertrag, p. 36, No 11; H. P. Ipsen, Europäisches Case 111/63 Lemmerz-Werke [1965] ECR 677, at 690 and Gemeinschaftsrecht, Tübingen, Mohr, 1972, p. 535, No 13. 691.

I would emphasize first of all that the Com­ However, in the hypothesis that a party gives munity Court can only accept a request from proof of an interest in the aforementioned an addressee of a Commission decision to sense, I consider that there is indeed a role the effect that it should order, by way of for the authenticated minutes and authenti­ measure of inquiry, the production of cated original of a measure adopted by the authenticated minutes and of the authenti­ full Commission. It must indeed be possible cated original of. the decision — both of for the Community Court to examine in the which are confidential documents, since, light of those documents whether amend­ according to Article 8 of the Commission's ments were made after the event to the doc­ Rules of Procedure, the Commission's dis­ ument adopted by the full Commission cussions are confidential — if the party in which do not accord with the Commission's question shows that it has an interest. It is intention as expressed in the documents con­ for the Court to assess this interest in the cerned. I can put this in another way: where light of the actual circumstances: it may be the President and Executive Secretary of the assumed that the party does have an interest Commission sign the approved minutes of a if there are serious indications that the noti­ Commission meeting at which a particular fied version of the decision does not corre­ decision was adopted and, in addition, sign spond (or no longer corresponds) to the 152 the [authentic language version(s) of] that decision reached by the full Commission. decision, I regard this as being a real guaran­ tee for the addressee of the decision that the text which was notified to him actually cor­ 152 — Cf. the order in BAT and Reynolds v Commission, in responds to the decision taken by the full which one of the applicants requested the Court to call upon the Commission to submit to it all the documents in Commission. This guarantee operates at two the Commission's possession relating to a particular com­ levels. It performs a function beforehand petition file in order to ascertain whether its decision was influenced by factors other than those indicated in the (before a decision is notified) within the statement of reasons. The President of the Court refused this request, on the ground that this would constitute an Commission for the benefit of the Executive 'exceptional measure of inquiry', which 'would presup­ Secretary and his departments in the sense pose that the circumstances surrounding the decision in question gave rise to serious doubts as to the real reasons that, when they mark the measure to be noti­ and, in particular, to suspicions that those reasons were extraneous to the objectives of Community law and hence fied as 'certified' with a view to its notifica­ amounted to a misuse of powers': order in Joined tion, they can be sure, as a result of the Cases 142 and 156/84 BAT and Reynolds v Commission [1986] ECR 1899, paragraph 11 (my emphasis). authentication of the original copy of the

decision, of the content of the original deci­ with the judgment in Nakajima, to rely on sion against which they have to determine Articles 10 and 12 of the Rules of Procedure. the faithfulness of the copy to be notified (cf. 153 section 82 below). The guarantee likewise fulfils a function afterwards (namely after the decision has been notified) for the Com­ munity court for the benefit of the addressee of the decision in the eventuality outlined above, namely where the addressee has seri­ ous evidence that the notified text does not 68. However, the foregoing does not mean correspond to the original. that, if in the course of measures of inquiry ordered by the Community Court, it should be established that the Commission did not comply, or did not fully comply, with the authentication procedure provided for in its Rules of Procedure, the addressees of the decision concerned are entitled to plead the infringement of the relevant provisions of the Rules of Procedure as a ground for the non-existence of the decision. It will become clear later (in section 77) that in order for 67. In my view, only the last mentioned this to be so, the decision must be vitiated by function attributed by the Court of First obvious defects, that is to say, defects which Instance to authentication satisfies the crite­ become apparent, also to its addressees, on rion mentioned above (in section 56) which a reading the text notified to them. This can provision of the rules of procedure of a manifestly not be so where the Court, in the Community institution must fulfil in order course of a measure of inquiry, finds after to be able to be pleaded: authentication in the event that the Commission failed to accordance with Articles 10 and 12 of the comply with the authentication procedure Commission's Rules of Procedure also guar­ which takes place within the Commission. antees — on the authority of the President and Executive Secretary who respectively presided over or attended the meeting at which the decision was taken — that the text notified to an addressee of a Commission decision corresponds to the decision which was adopted by the full Commission. In that respect, authentication aims at better (legal) protection of parties — who, of course, in Neither, to my mind, can the Commission's view of the confidentiality of Commission failure to comply, or failure to comply in discussions, cannot themselves check that the full, with the aforementioned authentication version notified so corresponds — and the procedure be regarded as an infringement of parties are therefore entitled, in accordance an essential procedural requirement within the meaning of Article 173 of the EEC Treaty. According to the case-law of the Court of Justice, essential procedural 153 — Under the third paragraph of Article 16 of the Commis­ requirements are rules which a Community sion's Rules of Procedure, it is the duty of the Executive Secretary to 'take the necessary steps to ensure official institution must take into account before or notification of acts of the Commission and their publica­ tion in the Official Journal of the European Communities'. at the time when it adopts a measure, failing

which the measure may be declared void. after the measure has been approved — can As a result, rules with regard for example to constitute an infringement of an essential the notice or notification of a measure to the procedural requirement. person to whom it is addressed are not con sidered by the Court to be essential proce dural requirements within the meaning of Article 173 of the EEC Treaty: once a deci sion has been validly adopted, subsequent 155 acts cannot affect is validity.

administration. The Court has repeatedly 154 — See W. Waelbroeck, 'Article 173', in Le droit de la Commu- nauté économique européenne (Commentaire Mégret), affirmed that those principles apply to action Part X, p. 128, No 34; see also R. Joliet, Le droit institu- 156 tionnel des Communautés européennes. Le contentieux, by the Commission in competition cases. Liège, Faculté de Droit, d'Economie et de Sciences sociales Authentication is therefore to be con de Liège, 1981, p . 99 et seq. The latter distinguishes, on the basis of the Court's case-law, between three groups of strued as a duty of care imposed by the essential procedural requirements within the meaning of Article 173 of the EEC Treaty which may result in a mea Commission upon itself which is intended to sure's being declared void: (i) rules relating to the process ensure that the decisions which it takes fully whereby Community measures are prepared (for example, the obligation for an institution to consult another institu reflect the intention of the full Commis tion or body or the obligation for the Commission, under 157 Article 19(1) of Regulation No 17, to give undertakings an sion. opportunity of being heard on the matters to which it has taken objection: see as regards the latter point the very recent judgment of 31 March 1993 in Joined Cases

ment). That provision is, according to the Court, an tion and hence a ground of unlawfulness essential procedural requirement (paragraph 51 of the within the meaning of Article 173 of the judgment) and hence falls within the second category men tioned by R. Joliet. See also the references to that case in the judgment in Case C-331/88 Fedesa and Others [1990] ECR I-4023, paragraph 3, and in the orders in Case 160/88 R Fédération européenne de la santé animale and Others v Council [1988] ECR 4121, paragraph 12, in Case 34/88 156 — See as long ago as the judgment in Consten and Grundig, Cevap and Others v Council [1988] ECR 6265, para cited in footnote 49, at 347; judgment in IAZ v Commis- graph 6, in Case 160/88 Fédération européenne de la santé sion, paragraph 15. animale and Others v Council [1988] ECR 6399, para graph 4, and in Case 138/88 Flourez v Commission [19881 157 — In my opinion, the authentication procedure provided for ECR 6393, paragraph 4. in Articles 7 and 9 of the Council's Rules of Procedure 155 — Judgment in IAZ v Commission, cited in footnote 43, at must be understood in the same way. It consists of the fact

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utive Secretary of the Commission in accor of sound administration, given the existence dance with Article 10 of the Rules of Proce 159 of precise, authenticated minutes which have dure. Those minutes clearly indicate that essentially taken over the function connected the full Commission discussed the Decision with the authentication of the Decision itself. and further expressly state that the Commis sion (i) found an infringement of Article 85 of the EEC Treaty, (ii) imposed fines speci fied in the minutes on the fourteen undertak ings concerned, (iii) ordered them to bring the infringements in question to an end and 7.

with. It is independent of the enforceable dance with Article 10 of the Rules of Proce nature of the decision and of its taking effect dure, it may be taken that that authentication or incorporation into the Community legal order. Neither does authentication protect individuals by confirming the existence of 158 — Namely an 'infringement of this Treaty or of any rule of the decision, since, for that purpose, only the law relating to its application' within the meaning of that authentic text which has been duly adopted

therein.

VII — Misapplication of the doctrine of non-existence?

The respondents' argument boils down 1. The views of the parties and the reasoning largely to the claim that the Commission has of the Court of First Instance wrongly interpreted the doctrine of non­ existence as laid down inter alia in the Con- sorzio judgment. They argue that it is not a requirement that the flaws in the measure should be obvious to the addressee, that is to say, directly apparent. The Commission 71. In its last plea, the Commission argues wrongly bases an argument on the fact that that the Court of First Instance misapplied the Court has only once decided that a mea­ the doctrine of the non-existence of adminis­ sure was non-existent: at Community level trative measures, as it has been developed in there is no known case in which procedural the national legal systems of the Member rules were infringed on such a large scale as

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in the present case, culminating in the non- larly serious and manifest defects within the authentication of the Decision. meaning of that judgment such as to lead the Court to declare it non-existent'.

'to date the measures precisely, even though '[i]t is necessary to consider whether in this they were adopted on a date close to the case the contested measure exhibits particu­ expiry of the mandate of the Member of the Commission responsible for matters of com­ petition, to whom, it is established, the 160 — PVC judgment, paragraph 68. The Court of First Instance Commission granted at least in part such refers, as regards the concept of the non-existence of Community measures, to the judgments of the Court of power of adoption. Thus the Court is unable Justice in Joined Cases 1 and 14/57 Société des Usines à Tubes de la Sarrev High Authority [1957 and 1958] to determine the date, between 21 Decem­ ECR 105; Joined Cases 15 to 33, 52, 53, 57 ber 1988 and 16 January 1989, on which the to 109, 116, 117, 123, 132 and 135 to 137/73 Schots- Kort- ner and Others v Council, Commission and Parliament contested measures were actually adopted [1974] ECR 177; Case 15/85 Consorzio Cooperative d'Abruzzo v Commission, cited in footnote 150; Case 226/87 Commission v Greece [1988] ECR 3611; and the judgment of the Court of First Instance in Case T-156/89 Valverde Mordt v Court of Justice [1991] ECR II-407. 161 — PVC judgment, paragraph 68 in fine.

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and incorporated into the Community legal Then, in paragraph 96, the Court reaches the order, thereby acquiring binding force.' 2 following conclusion:

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12 July 1957 in the Algera case, the Court though it may be irregular, is presumed to be has adopted the following principle: 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 finding may be made, even after the period for instituting proceedings has 'The adoption of an administrative measure expired, that the measure has not produced creates a presumption as to its validity. That any legal effects. For reasons of legal cer­ validity can be set aside only by means of tainty which are evident, that classification annulment or withdrawal, in so far as those must consequently be restricted under Com­ 165 measures are permissible.' munity law, as under the national legal sys­ tems which provide for it, to measures which exhibit particularly serious and manifest 167 defects.'

In the same judgment, the Court emphasized that:

In recent years, too, the Court of Justice has 'the unlawful nature of an individual admin­ repeatedly confirmed that it is prepared to istrative measure entails its complete nullity apply the doctrine of non-existence only in certain circumstances .... Apart from those exceptional cases, the theoretical writ­ ing and the case-law of the Member States allow only of voidability and revocabil- 166 ity.'

'only if the measure at issue contained such particularly serious and manifest defects that 168 it could be deemed non-existent'. More recently in the Consorzio judgment of 26 February 1987, the Court stated its views on the non-existence of administrative mea­ sures in the following terms:

Treaty. The applicant, a steel producer, had received a letter from the High Authority which it (but not the High Authority) con­ sidered to be the opinion provided for in the fourth paragraph of Article 54 of the ECSC Treaty and contested that document before the Court. From its appraisal of the circum­ stances, the Court concluded that the High Authority had in fact intended to deliver an 75. A second case in which the Court was opinion within the meaning of that provi­ asked to rule on the non-existence of a Com­ sion. However, it found that under the munity measure was the judgment of 21 Feb­ fourth paragraph of Article 54 of the ECSC ruary 1974 in Schots-Kortner and Others v 172 Treaty the delivery of such an opinion was Council, Commission and Parliament. subject to a number of requirements (it had This was a staff case in which a number of to be a reasoned one; it had to be notified to female officials, following on from the judg­ 17 the undertaking concerned; it had to be com­ ments in Sabbatini and Bauduin, 3claimed municated to the government concerned; and payment of the expatriation allowance. One the fact that it had been delivered had to be of the applicants claimed, in order to avoid published), and that only one of those her rights lapsing owing to the expiry of the requirements, namely notification, had been time-limit for bringing an action, that the fulfilled. The Court found in particular that provision of the Staff Regulations in force at the 'statement of reasons [was] non-existent', the time — which the Court in the afore­ since the terms of the letter could not be mentioned judgments had held not to be per­ regarded 'as a statement of the essential find­ missible — under which the female officials ings of fact upon which the legal justification in question had been refused payment of the 170 allowance (the version of Article 4(3) of of the measure' depended. The Court concluded from this as follows: Annex VII in force at that time) was so unlawful that it had to be regarded as if it had never been written or as if it were non­ existent. The Court resolutely refused to cat-

76. In the Consorzio judgment, cited above, the proceedings were concerned with a financial contribution granted by the Com­ mission through the EAGGF (Guidance Sec­ 'Without there being any need even to con­ tion) to an Italian undertaking, Consorzio sider the gravity of the two irregularities Cooperative d'Abruzzo. The Consorzio alleged by the Commission, it is sufficient to claimed the annulment of a decision of Octo­ state that neither of them is manifest. Nei­ ber 1984 reducing the maximum contribu­ ther irregularity could be detected by read­ tion to its project in relation to the amount ing the decision. The internal rules for estab­ fixed in a decision of April 1982. The 1984 lishing the maximum contribution available revocation decision was worded identically from the EAGGF under Council Regulation to the earlier 1982 decision, except with No 355/77 have not been published. Hence, regard to the amount of the contribution apart from the Commission officials respons­ granted, yet it did not refer thereto. The ible for the proper application of those Commission argued in its defence that it rules, no one was in a position to ascertain never intended to grant a contribution of the by reading the decision of 7 April 1982 size specified in its 1982 decision and that whether or not those rules had been that decision was non-existent. It claimed infringed. The same holds true for the irreg­ inter alia that there had been two irregulari­ ularity consisting in the discrepancy between ties in drawing up the decision: (i) the inter­ the draft decision submitted to the manage­ nal rules for establishing the maximum con­ ment committee and the decision adopted tribution available from the EAGGF had on 7 April 1982. Accordingly, the decision been infringed and (ii) the fact that the Com­ of 7 April 1982 cannot be classified as non­ mission had granted a contribution of a dif­ existent.' 176

77. The most recent occasion on which a the present appeal — once had to consider party pleaded before the Court the non­ the non-existence of a measure, namely in existence of a Community measure was in the judgment of 27 June 1991 in the case of Case 226/87 Commission v Hellenic Repub- 180 Valverde Mordt. This was a staff case in 177 lic. The case concerned an application by which a Court official claimed inter alia the the Commission for a declaration that annulment of an open competition organized Greece had failed to fulfil its obligations by by the Court. In response to an objection of failing to take within the prescribed time- inadmissibility raised against him on the limit the measures necessary to comply with ground that his action was out of time, he a Commission decision adopted under Art­ argued that the competition was not merely 178 icle 90(3) of the Treaty. Greece argued that open to annulment but automatically void the Court should, by way of exception, exer­ because it had been organized contrary to cise its power of judicial review in regard to the provisions of a Council Regulation. The the legality of the contested decision on the Court held that that argument corresponded ground that it lacked any basis in the Com­ in substance to the rule recognized in the munity legal order. By reference to the Con- case-law of the Court of Justice according to sorzio judgment, the Court rejected that which, objection:

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COMMISSION v BASF AND OTHERS

which had been adopted in connection with are so serious, and often not entirely predict­ the accession of Spain and Portugal — was able, that extreme caution is called for in the not in any event 'one of the exceptional cases employment of this doctrine in relation to which permit an irregularity to be described acts laying down regulations, the more so if as so serious and so flagrant that it renders these have remained in force over a long 182 183 the act affected by it non-existent'. period.'

182 — Judgment in Valverde Mordt, paragraph 85. 183 — At page 197.

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OPINION OF MR VAN GERVEN — CASE C-137/92 P

measure was subject to a presumption of which adopted the Decision 'should entail validity: apart from a variety of grounds for the annulment of the contested decision' that declaring the measure void, no plea was the Court began to consider the non­ developed regarding the non-existence of the existence of the measure, in the course of 1 measure. 84It was only during the hearing which it attached decisive importance to the that, as a result of the documents produced infringement of Article 12 of the Commis­ by the Commission, the plea that the mea­ sion's Rules of Procedure, which was first 185 sure was non-existent was developed. revealed at the hearing. More generally, I find it difficult to accept that, where 96 para­ graphs are necessary in order to find that certain defects are 'so serious and so mani­ fest' that they made the relevant measure non-existent in law, the irregularities were clearly apparent to the addressees on reading the decision. All of this is in itself a clear indication that, in this case, there can be no question of a decision's being 'prima facie' non-existent.

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COMMISSION v BASF AND OTHERS

All in all, I can therefore see no reason why the Decision, as argued by the Court of First 186 — Sec paragraph 37 of the PVC judgment. Instance, should have lost the presumption

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OPINION OF MR VAN GERVEN — CASE C-137/92 P

of legal validity which it prima fade enjoys, requirement. The Court of Justice rejected on account of the two abovementioned that plea in the following terms: 'defects'.

According to the Court of First Instance, that complaint of lack of com petence, together with the two'defects' dis It is not the proper place here to set out the cussed in the preceding section, means that it differences between a decision concerning an is impossible to identify with certainty the inspection and a final decision, such as the authority which adopted the definitive ver one at issue in this case. Suffice it to say that, sion of the Decision. no less than in the case of decisions concern ing investigations, any Community provi sion imposes on the Commission the requirement that the text of a decision find ing an infringement of Article 85 of the EEC Treaty which is notified to the addressees should be signed by the competent Member Is that irregularity in itself — since I have of the Commission. Furthermore, it appears already dismissed the other two 'defects' — from the documents submitted to the Court of such a kind to affect the existence or at that the text of the decision notified to the least the validity of the Decision? I do not respondents bore the seal of the Commission think so and my reasons are as follows. In and were authenticated by the Secretary-

sion. As argued above (in section 66), the latter authenti the decision-making body constituted an cation is intended to certify that the original version of the infringement of an essential procedural decision corresponds to the decision adopted by the full Commission at its meeting.

The fact remains of course that the notified take cognizance of it, that is to say, that they text of the decision also bore at the foot the actually had access to it (see section 62 words 'for the Commission, Peter Suther­ above). None of the parties denies that this land' (without his signature) and was accom­ happened in this case. panied by a letter from Mr Sutherland dated 5 January 1989 — that is to say, the last day of his mandate — which was signed by him. Nevertheless, I consider that those circumstances are not a sufficient reason for annulling the decision, let alone declaring it non-existent. In the first place, as far as the letter dated 5 January 1989 signed by Mr Sutherland is concerned, it is clear — as 189 the Court of First Instance observes — that such a letter forms no part of a decision finding an infringement of Article 85 of the EEC Treaty. The fact that that letter — which in principle was still signed in time — came from Mr Sutherland can therefore have no effect on the validity of the decision com­ municated with it. Nor, in my view, can the fact that the letter was dated 5 January 1989, whereas the addressees were not notified until February that year, affect the legality of As for the words 'for the Commission, Peter the Decision: the critical factor for assessing Sutherland, Member of the Commission', I whether notification took place in accor­ am unable to accept that this constitutes an dance with the second paragraph of Art­ irregularity affecting the legality of the Deci­ icle 191 of the EEC Treaty is not the date of sion. Not only are such words not required signature of the accompanying letter, but the by the Community legislation, in addition it fact that the text of the decision was notified is clear that, in so far as it can be accepted to its addressees and they were enabled to that those words form part of the Decision itself, they were approved by the full Com­ mission on 21 December 1988: the English, French and German versions of the draft decision adopted by the full Commission all contain those words, doubtless because it was assumed that notification would take place before Mr Sutherland's mandate expired. What is essential, though, in my eyes, is that those words could not have placed the undertakings addressed in any doubt at all as to whether the Decision did in fact emanate from a competent authority: the Decision appeared in every respect to be a decision adopted by the Commission on the date of 21 December 1988, was clearly intended to produce legal effects, was — as all the addressees were aware — adopted as 189 — See paragraph 63 of the PVC judgment.

(2) the case is referred back to the Court of First Instance with a view to its pro­ nouncing on the pleas raised by the applicants at first instance which were not dealt with in that judgment.

190 — Cf. the judgments in Joined Cases 53 and 54/63 Lemmerz [1963] ECR 239, at 248, and in Joined Cases 23, 24 and 52/63 Henricot [1963] ECR 217, at 224.

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