C-199/92

HÜLS V COMMISSION

(iii) Examination of submissions put forward after closure of the oral procedure I-4320 (iii.l.) Prohibition on raising of fresh pleas after the closure of the oral procedure I-4321 (iii.2.) Exceptions to the prohibition on raising pleas after closure of the oral procedure I - 4322 (iii.2.1) Whether the matters in respect of which late submissions were made became known after the end of the oral procedure I-4323 (iii.2.2) Whether the plea raised out of time is required to be reviewed by the Court of its own motion I-4328 B — Pleas concerning the finding by the Court of First Instance of infringements of Article 85 of the Treaty I-4329 (1) Arguments of the parties I-4329 (a) Participation in regular meetings I-4329 (b) Participation in price initiatives I-4331 (c) The measures designed to facilitate the implementation of the price initiatives I-4332 (2) Legal appraisal of the pleas raised I-4333 (a) Admissibility I-4333 (b) Whether the pleas are well founded I - 4334 V — Conclusion I-4335

In this case the Court of Justice is called appeal dismissed the action brought by the upon to deliver judgment on the appeal of appellant company pursuant to Article 173 Hüls Aktiengesellschaft (hereinafter 'Hüls') of the EEC Treaty (hereinafter 'the Treaty') brought pursuant to Article 49 of the EEC against the Commission's decision of Statute of the Court of Justice against the 23 April 1986 (hereinafter the 'Polypropy- judgment of the Court of First Instance of lene' decision). 2That decision concerned 10 March 1992. 1 The judgment under

1. As regards the facts of the dispute and the course of the procedure before the Court of First Instance, the judgment under appeal relates as follows: Before 1977 the West European polypropylene market was supplied almost exclusively by ten produ- 2. On 13 and 14 October 1983 Commis- cers, one of which was Hüls, with a market sion officials, acting under the powers share fluctuating somewhere between 4.5 conferred by Article 14(3) of Council Reg- and 6.5%. After 1977 and following the ulation No 17 of 6 February 1962, 4(here- inafter 'Regulation No 17') carried out simultaneous investigations in a number 3 — The principal focus of interest in the present case, and in the other appeal proceedings (ten in all) pending before the of undertakings operating in the polypro- Court and concerning the same Polypropylene Decision pylene production sector. Following those adopted by the Commission, is the issue of the legality of the procedure followed in the adoption of the decision at issue investigations, the Commission addressed and the extent to which that decision reveals substantial requests for information, under Article 11 procedural flaws which, moreover, ought to have been detected and inquired into during the proceedings before the of Regulation No 17, to the above compa- Court of First Instance. It is worth noting that the relevant pleas raised by the appellant companies in all these cases nies, and also to other related undertakings. show significant similarities, though they are not identical, From the evidence obtained during the just as the factual circumstances of those cases are not always the same. The point of law which arises, however, course of those investigations the Commis- calls in a certain number of places for the discussion of the same issue, particularly in the case of the six undertakings, sion concluded that, between 1977 and including the appellant, upon whose actions the Court of 1983, certain polypropylene producers, First Instance adjudicatea in six judgments delivered on 10 March 1992. Those undertakings had requested the including Hüls, had been acting in contra- Court of First Instance, in the period between 27 February 1992, the date of delivery of the PVC judgment of the Court vention of Article 85 of the Treaty. On of First Instance, and 10 March 1992, to resume the oral procedure in order to determine, in the light of the matters 30 April 1984 the Commission decided to arising out of the contemporaneous and analogous PVC cases, the extent to which all the essential formal and open the proceedings provided for by procedural requirements had been observed on the adoption Article 3(1) of Regulation No 17 and sent of the contested 'Polypropylene' judgment. The Court of First Instance rejected all the requests made in that a written statement of objections to the connection. For systematic reasons it is appropriate for undertakings in contravention. Cases C-199/92 P (Hüls), C-49/92 P (Enichem), and C-235/92 P (Montecatini) to be examined first. In those cases most of the issues arising in that group of cases are dealt with and, for the avoidance of repetition, reference will be made thereto, as far as possible. 4 — OJ, English Special Edition 1959-1962, p. 87.

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5. By separate document lodged at the Registry of the Court of First Instance on 4 March 1992, when the written and oral procedure had, as stated above, been com- pleted, but nevertheless before judgment had been delivered, Hüls asked the Court of First Instance to reopen the oral proce- dure. In support of that request it relied on Article 3 certain factual evidence of which, it main- tained, it had only become aware after the conclusion of the oral procedure and, in particular, after the hearing and delivery of the judgment of the Court of First Instance on 27 February 1992 in the related cases BASF and Others v Commission (herein- after 'the "PVC" cases'). 5That evidence The following fines are hereby imposed on showed, according to Hüls, that the con- the undertakings named herein in respect of tested decision was vitiated by serious the infringement found in Article 1 : procedural defects for the examination of which fresh measures of inquiry into the evidence is required. 6

In its abovementioned decision of 10 March 1992, the Court of First Instance, after hearing the views of the Advocate General once again on the ques- tion arising, rejected the request for the oral procedure to be reopened, and rejected the application in its entirety.

(vii) Hüls AG, a fine of 2 750 000 ECU, or 5 6. Hüls lodged an appeal against that 898 447,50 German marks (...)' decision, requesting the Court to set it

The Commission contends that the Court should dismiss the appeal and order the appellant to pay the costs. 8. As a preliminary matter it should be recalled that, under Article 51 of the EEC Statute of the Court, an appeal 'shall be limited to points of law. It shall lie on the grounds of lack of competence of the Court of First Instance, a breach of procedure before it which adversely affects the inter- ests of the appellant as well as the infringe- DSM NV intervened in the appeal in ment of Community law by the Court of support of Hüls. First Instance.' Moreover, the provisions of Articles 113(2) and 116(2) of the Rules of Procedure of the Court of Justice preclude the parties from changing the subject- matter of the proceedings before the Court of First Instance in the appeal or in the response. At any stage of the proceedings and under Article 119 of the Rules of Procedure, where an appeal is clearly inadmissible, the Court may by reasoned order dismiss the appeal. I I— Admissibility of the appeal

7. In its response the Commission, at the outset, requests the Court to reject the For an appeal to be inadmissible in its appeal as inadmissible. In that connection entirety it must contain no admissible

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OPINION OF MR COSMAS — CASE C-199/92 P

The intervener reinforces its submissions by invoking the factual cir- 9. Viewed in that light, the Commission's cumstances of and the solution adopted in objection of inadmissibility is ineffectual, the 'Soda Ash' 8and 'LdPE' 9cases by the inasmuch as it raises objections only to the Court of First Instance. Finally, it requests second series of grounds of appeal relied on the Court to allow the appeal, to quash the by Hüls concerning possible infringements judgment of the Court of First Instance of substantive Community competition appealed against and to declare the Poly- law, and not to the other grounds of appeal, propylene decision to be non-existent or that is to say the first series of grounds invalid. According to DSM, allowing the contained in the notice of appeal. The latter appeal and holding the Polypropylene deci- grounds of appeal allege procedural flaws sion to be non-existent or invalid would not before the Court of First Instance. Conse- benefit only the appellant but also the quently, even if the Commission's conten- intervener itself. On that ground, it main- tions were fully upheld (a matter to be tains that it has a legal interest in making examined below, together with the appel- this intervention. lant's counter-arguments, in the context of the individual discussion of each ground of appeal), that could not result in the dis- missal of the appeal as inadmissible in its

T-101/89, T-103/89, T-105/89, T-107/89 and T-112/89 C-53/92 P Hilti v Commission [1994] ECR I-667). BASF and Others v Commission [1995] ECR II-729.

12. It must at the outset be clarified that examination of the admissibility of the intervention does not run counter to the earlier decision of the Court, as formulated in its order of 30 September 1992. By that The Commission further points out that by order DSM was granted leave to make this its intervention DSM is seeking to make intervention. When that order was made good its omission to exercise its right of the issue of admissibility was examined appeal against the judgment of the Court of prima facie, in the light of the decision whether or not to authorize the party

10 — Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555, see below, paragraph 20 et seq. 11 — Case T-8/89 DSM v Commission [1991] ECR II-1833.

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seeking leave to intervene to participate in Community, which are covered by the first the written and oral stages of these pro- paragraph of Article 37) who have an ceedings. The view formed in that order on interest in the result of the case. That legal the admissibility of the intervention was, I interest must be direct and present. The consider, provisional and gave rise to no intervention may be concerned solely to question of res judicata which would support the pleas of the party in support of preclude examination of that issue at the whom the intervention is made. present stage. That is corroborated by both the literal and purposive interpretation of the applicable procedural provisions, 12 and by the Court's case-law. 13

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15. The question arises, then, as to the at least in the rendering ineffective of that manner in which it is to be judged whether individual decision in respect of the part a person, who did not bring independent concerning it. Whatever indirect justifica- proceedings against, or apply for other tion is likely to be inferred as regards the relief from, a specific act, has a legal intervener from the fact that defects have interest in intervening in pending proceed- been shown to exist which vitiate the ings in which another person, having the legality of the act in question, is not status of a party, is challenging the same sufficient to justify its participation in the act. 16 The existence of a direct and present pending proceedings. 20 legal interest is'assessed on the basis of the form of order sought by the party in whose support the intervention is made. 17 Although it is easier to prove the existence of a legal interest where the annulment of a regulatory act is sought — precisely because that annulment takes effect erga omnes — that is not true of a case, such as the present proceedings, where the dispute 16. On the basis of the foregoing I shall turns on the legality of an individual act. In now examine — in whole and in part — the latter case, only a finding that the act is the admissibility of the intervention by non-existent, owing to the existence of DSM in the present case.

paragraphs 8 and 9. The fact that the person seeking leave is to say going beyond that which is sought to intervene did not bring independent proceedings merely entails the negative consequence for that person of being limited to supporting the form of order sought by the party in whose favour it is intervening. See also order in Case T-35/91 Eurosport Consortium v Commission [1991] ECR 18 — Precisely because there is found to be no act embodying II-1359. both the individual decision which concerns the party in 16 — It is worth noting that when an individual act, that is to say whose favour the intervention is made and the individual an act which contains no general abstract rules of law, decision concerning the intervener. On that ground, if the governs the legal situation of more than one person it principal party proves the non-existence of the embodying constitutes in actual fact a series of several individual acts act, that is of direct benefit to the intervener as well.

That position, is not the individua! decision concerning it but another fully warranted by the rationale of the power to quash, individual decision which is embodied in the same decision need not occasion surprise; besides, it is accepted by the as the one that concerns it. courts of cassation of the Member States. 17 — See the abovementioned orders in Case C-245/95 P 20 — That was the position adopted in the Scaramuzza order (footnote 15) and C-76/93 P (footnote 14). (paragraph 7 et seq.), cited at footnote 15.

In any event the appellant seeks the setting aside of the judgment at first instance with Again, where the appellant seeks, in addi- reference back, if appropriate, to the Court tion to the annulment of the first-instance of First Instance for a fresh judgment. That judgment, an adjudication by the Court on claim by itself cannot give rise to any direct the merits of the case and a declaration that legal interest in favour of the intervener, the Polypropylene decision is invalid, on inasmuch as the annulment of the judgment grounds connected with its formal or at first instance, in so far as it affects Hüls, substantive legality, annulment of that act has no influence at all on the legal situation does not operate erga omnes but only in of DSM. Even where, in addition to the favour of the appellant. Consequently, the annulment of the judgment at first instance, intervener cannot rely on a legal interest an order referring the case back to the stemming from annulment of the Polypro- Court of First Instance is sought, the likely pylene decision. benefit for the intervener — which in the best case would be the probability that the Court of First Instance, in adjudicating upon the matter afresh, would form the view that the Polypropylene decision was non-existent — consists merely in a hypo- thetical, indirect and future legal interest which is not sufficient for the admissibility of the intervention to be upheld. Moreover, the appellant is not seeking, nor 21 — See on that point judgment in Case C-225/91 Matra v could it seek, to extend the results of the Commission [1993] ECR I-3203, patagtaphs 11 and 12. annulment of the abovementioned act to all

18. Hüls considers that the Commission's Polypropylene decision, which it chal- lenged in proceedings before the Court of First Instance, is vitiated by substantial procedural defects which render it non- 17. It follows from the foregoing that the existent or invalid. Those defects, or at intervention by DSM is admissible only in least clear and sufficient indications of their part, as regards that part in which the existence, were raised by it in its pleading intervener backs the appellant's request prior to delivery of the first-instance judg- that the Court should, in addition to setting ment. According to the appellant, the Court aside the first-instance judgment, declare of First Instance infringed a series of legal the Polypropylene decision to be non- and procedural rules by declining to inquire existent in accordance with the exposition into those matters further, even though it set out above. 23 Neither the other claims was requested to do so in the pleading of made by the intervener nor the arguments 4 March 1992. That refusal was also based relied on by it in support of the appellant's on erroneous reasoning: the Court of First other claims need be examined on their Instance misinterpreted the concepts of a merits since they are inadmissible. non-existent act and of the presumption of legality. 22 — It is not possible to construe to that effect the appellant's claim that the contested act should be annulled and 'declared invalid in its entirety.' The appellant may seek annulment of an act only in so far as it concerns him. Apart from the case of a finding that an act is non-existent, the Community judicature cannot correspondingly accept the general nullity of an act containing several individual decisions. 23 — The Commission's objection of inadmissibility, to the extent to which it is based on the view formed by the Court in the PVC cases (see above footnote 11 and paragraph 20 below) in connection with whether certain substantial formal defects in a decision render it non- In the following part I shall first examine existent or merely invalid, is unfounded because it the ground of appeal involving the inter- disregards the limits of the adjudication in the Court judgment in question. The fact that in the PVC cases the pretation of those concepts before going on Court did not find in favour of non-existence does not to deal with the issue of the alleged preclude, notwithstanding the similarities of the two cases, a finding of non-existence in the present case. breaches of procedural rules.

It is of particular relevance to cite the provisions governing the exercise of the In accordance with Articles 60 and 61(2) of right of appeal. those rules:

Article 41 of the EEC Statute of the Court, which is also applied in proceedings before 'Where an Advocate General has not been the Court of First instance, states as designated in a case, the President shall follows : declare the oral procedure closed at the end of the hearing (...).

'An application for the revision of a judgment may be made to the Court only on discovery of a fact which is of such a After the delivery, orally or in writing, of nature as to be a decisive factor, and which, the Opinion of the Advocate General the when the judgment was given, was President shall declare the oral procedure unknown to the Court and to the party closed.' claiming the revision.'

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20. That judgment 24 is of particular impor- tance in the solution of the issues arising in the present case. In the context of the appeal against the PVC judgment of the 22. After setting aside the judgment of the Court of First Instance of 27 February Court of First Instance as to non-existence, 1992 the case turned on the legal conse- the Court proceeded to give final judgment quences of the non-existence of an authen- in the matter and therefore examined ticated original of a Commission act signed whether those same formal irregularities by the President and the Executive Secre- constituted any other ground on which the tary, in accordance with the provisions of act might be annulled. 27 In that connection Article 12 of the Commission's Rules of it took into consideration three important Procedure. 25 elements. The first was the fundamental nature of the principle of collegiate respon- sibility governing the functioning of the 24 — See above, footnote 10. Commission. 28 Observance of that princi- 25 — In the PVC cases the non-existence of an authenticated original and, with it, an infringement of Article 12 of the Commission's Rules of Procedure, were established judi- cially and not doubted by the Commission. Consequently, 26 — Paragraphs 48 to 54. unlike the facts in the 'Polypropylene' case, the Court merely had to determine the legal consequences flowing 27 — Paragraphs 61 to 78 of the judgment. from an already established infringement of Article 12 of 28 — The Court cites its judgment in Case 5/85 AKZO Chemie v the Commission's Rules of Procedure. Commission [1986] ECR 2585.

(2) The judgment appealed against

23. It follows from the foregoing that 'the Commission has an obligation, inter alia, to take the steps necessary to enable the 25. The Court of First Instance rejected the complete text of acts adopted by the college pleas submitted in the applicant's pleading of Commissioners to be identified with certainty.' It was in pursuance of that 29 — It would be possible to counter the case-law set out above obligation that the rule contained in Arti- by saying that that solution does not confront with the cle 12 of the Commission's Rules of Proce- necessary rigour such a serious breach of the law by the Commission as is constituted by its infringement of dure was enacted. Accordingly, 'far from Article 12 of its own Rules of Procedure. Especially the jurist acquainted with the rules in force in the domestic being, as the Commission claims, a mere laws of certain Member States may be occasioned surprise formality for archival purposes, the authen- by the failure to declare an unsigned substantive act non- existent. It should not, however, be overlooked that the tification of acts referred to in the first Court, in arriving at that view of the matter, took account of the special features of the 'administrative' functioning of paragraph of Article 12 of its Rules of the Community institutions and adjudged, again in my personal view, that to characterize the infringement at Procedure is intended to guarantee legal issue as an infringement of an 'essential procedural certainty by ensuring that the text adopted requirement' entailing annulment of the act was the best means of protecting both the proper functioning of the by the college of Commissioners becomes Community institutions and the legal interests of the parties concerned. For that reason and notwithstanding the fixed in the languages which are binding. doubts set out above as to the extent to which the sanction Thus, in the event of a dispute, it can be against the Commission's infringements in the PVC cases was sufficiently severe, I consider that the same judicial verified that the texts notified or published solution may be accepted in the cases under consideration.

of 4 March 1992 30 on the basis of the nity Court must review that issue of its own following reasoning contained in para- motion. In the present case, the arguments graphs 384 and 385 of the judgment put forward by the applicant do not appealed against: provide a sufficient basis to suggest that the Decision is non-existent. In point 1(2) of its document, the applicant pleads an alleged infringement of the rules on lan- guages laid down in the Commission's Rules of Procedure. Such an infringement cannot, however, entail the non-existence of the contested measure but only its annulment, provided that the argument is received at the proper time. The applicant also contends, in point 1(3) of its docu- ment, that in view of the circumstances of 'It must be stated first of all that the the PVC case there must be a presumption judgment of 27 February 1992 in the of fact that the Commission also made PVC cases does not in itself justify the subsequent amendments to its polypropy- reopening of the oral procedure in the lene decisions without having the authority present case. Furthermore, unlike the argu- to do so. The applicant has not, however, ment which it put forward in the PVC cases explained why the Commission would have (see paragraph 13 of the judgment), in the made subsequent alterations to the Deci- present case the applicant did not once sion in 1986, that is to say in a normal argue, even by allusion, in the oral proce- situation entirely unlike the special circum- dure that the Decision was non-existent stances of the PVC case, where the Com- because of the alleged defects. The question mission's term of office was about to run to be examined, therefore, is whether the out in January 1989. Mere reference to applicant has adequately explained why in "unawareness of irregularity" is not suffi- the present case, unlike in Joined Cases cient in this regard. The general presump- T-79/89 et al, it did not plead the existence tion put forward by the applicant in this of those alleged defects earlier, since they respect does not constitute a sufficient must in any event have existed before the ground for ordering measures of inquiry action was brought. Even though the after the reopening of the oral procedure. Community Court, in an action for annul- ment brought under the second paragraph of Article 173 of the EEC Treaty, must of its own motion consider the issue of the existence of the contested measure, that does not mean that in every action brought under the second paragraph of Article 173 of the EEC Treaty the possibility that the contested measure is non-existent must automatically be investigated. It is only in so far as the parties put forward sufficient evidence to suggest that the contested measure is non-existent that the Commu- Finally, the argument put forward by the applicant in point 1(d) of its document 30 — See paragraph 5 above. must be interpreted as asserting, on the

27. On the question whether the Court may order measures of inquiry at the appeal stage in connection with determin- ing the existence of formal defects in the (3) Examination of the grounds of appeal contested Commission decision, the follow- ing matters should be emphasized: it fol- lows from the nature of appellate review, as that concept is understood in the judicial systems of the Member States and is described in the relevant provisions of the EEC Statute of the Court of Justice and the (a) Limits of the powers of the appellate Rules of Procedure of the Court, that that jurisdiction review is limited to determining the legality of the judgment of the court trying the substantive issues, that is to say it focuses on the legal validity of the latter's judicial 26. I consider it useful as a preliminary step reasoning, on the basis of the facts as found to reply to an issue raised by Hüls con- by that court. Conversely, the appeal court

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has no warrant to appraise evidence, except the Court of First Instance is misinterpret- where a plea is raised alleging distortion of ing and misapplying the legal concepts of the clear sense of the factual evidence. 31 'non-existent' act and 'presumption of Thus, the carrying out of further measures legality'. of inquiry is inconceivable at the appeal stage. 32

28. The appellant maintains that the con- 33 — Judgment in Joined Cases 7/56 and 3/57 to 7/57 Algera tested judgment should be quashed because and Others v ECSC [1957] ECR 157. According to the appellant, that judgment is in line with widely accepted notions known to the national laws of the Member States and defines a non-existent act as one which is vitiated by particularly serious and manifest defects. The appellant 31 — As laid down in Case C-136/92 P Commission v Brazzelli infers from the Court's case-law that the absence of a Lualdi and Others [1994] ECR I-1981 (paragraph 49): signature on the act is such a serious and manifest defect. 'The Court of First Instance thus has exclusive jurisdiction In that connection it refers to the Opinion of Advocate to find the facts except where the substantive inaccuracy of General Trabucchi in Joined Cases 15/33 to 33/73, 52/73, its findings is apparent from the documents submitted to 53/73, 57/73 to 109/73, 116/73, 117/73, 123/73, 132/73 it.' and 135/73 to 137/73 Schots-Kortner and Others v 32 — The prohibition on the conduct of measures of inquiry Council, Commission and Parliament [1974] ECR 177, applies both at the stage prior to a decision by the appeal and to the Opinion of Advocate General Mischo in Case court on whether an appeal is well founded and in the 15/85 Consorzio Cooperative d'Arbruzzo v Commission event that the appeal is upheld and the question arises as to [1987] ECR 1005. The omission of the requisite signatures whether the case should be referred back to the court from the Polypropylene decision is, according to Hüls, trying the substantive issues for a fresh judgment. Prior to manifestly obvious. Accordingly, the appellant maintains annulment the prohibition is based on the fact that no that, from its submissions contained in its pleading of defect could be found in the judicial reasoning of the court 4 March 1992, there may be presumed to have been trying the substantive issues on a mattet of fact of which another particularly serious and manifest defect, namely that court was not aware. After an appeal has been upheld, the alteration to the content of the Polypropylene decision Article 54 of the EEC Statute of the Court provides that subsequent to its adoption. Inasmuch, then, as the Court of the Court may itself give final judgment in the matter, First Instance did not form the view that the abovemen- 'where the state of the proceedings so permits'. In the event tioned defects had rendered the act in question non- that supplementary measures of inquiry were required, existent ab initio, it conttavened Community law in the that would mean that the state of the proceedings does not manner in which it interprets the concept of a 'non- 'permit' final judgment to be given. existent' act.

35 — Both non-existence and substantial procedural defects relied on by Hüls belong to the category of issues which 34 — On the need for full evidence of such formal defects the the Court may review of its own motion. See, for example, Commission refers to the aforementioned PVC judgment judgments in Case 1/54 France v High Authority [1954] and to the judgments in Case T-43/92 Dunlop Slazenger v ECR 7, Case 2/54 Italy v High Authority [1954] ECR 73, Commission [1994] ECR II-441; and Case T-34/95 Case 18/57 Nold v High Authority [1959] ECR 89, and in Fiatagri and New Holland Ford v Commission [1994] Cases C-291/89 Interhotel v Commission [1991] ECR ECR II-905 and Case T-35/92 Deere v Commission [1994] I-2257, paragraph 14, and C-304/89 Oliveira v Commis- ECR II-957. sion [1991] ECR I-2283, paragraph 18.

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one hand, to review of the correct classifi- 32. On the basis of the foregoing I would cation under the appropriate rule of law of observe that the Court of First Instance did the facts as found by the court trying the not err in law in identifying and appraising substantive issues and, on the other, if evidence from which there appeared to be requested in the notice of appeal, whether substantial formal defects in the Polypro- corresponding factual submissions were pylene decision. It cannot be inferred from made in a manner which was admissible the judgment appealed against that the before the court trying the substantive Court of First Instance had before it issues and that court failed to examine evidence of such a nature and significance them. or, a fortiori, that it misappraised such evidence.

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appellant maintain that it had raised a legality as a defence against non-existence corresponding plea in a clear and concrete is in my view wrong in law. On the one manner or adduced full and cogent evi- hand, as the appellant also states, and as is dence from which such irregularities were apparent from the abovementioned analy- apparent. Consequently, the Court of First sis of the Court in the PVC cases, judgment Instance did not err in law in not holding as to the existence of an act logically that the Commission decision at issue precedes the formation of a view on revealed substantial procedural defects. whether a presumption of legality, of which it is a necessary precondition, has arisen. On the other hand — and this is more important since it covers the case in which infringement of Article 12 of the Commis- sion's internal rules of procedure entails the annulment and not the non-existence of the act vitiated on that ground — there cannot be reliance on the presumption of legality (iii) The correctness of paragraph 385 of of an act against which proceedings have the judgment appealed against been brought in order to counter the arguments and pleas raised by the parties challenging that act. That is to say, a procedural defect in the contested act cannot be defended on the ground that it 35. On the basis of the foregoing clarifica- is covered by the presumption of legality, tions, I now proceed to examine the merits given that that presumption does not of the ground of appeal according to which preclude judicial review. the Court of First Instance misinterpreted and misapplied the legal concepts of the 'non-existent' act and the 'presumption of legality'.

quashed on appeal because the solution it procedure with a view to ordering fresh adopts in response to the submissions of measures of organization of procedure. Hüls concerning non-existence of the act in question is correct, irrespective of the specific grounds of the contested judgment on that point. Thus, it was right to hold that the alleged relevant defects inherent in the Polypropylene decision, even if they are present, do not render the act non-existent. That position was also corroborated by the PVC judgment of the Court whose reason- ing is cited and analysed in an earlier part — Arguments of the parties of my Opinion. 40 As the Court has held, in the context of appellate review, where the reasoning of the Court is defective but the operative part is correct, the corresponding ground of appeal relied on by Hüls and the intervention by DSM must be rejected in 40. The appellant maintains that, by reject- their entirety. 41 ing its request for the oral procedure to be reopened, the Court of First Instance infringed Community law, misapplying Articles 62 and 64(3)(d) of the Rules of Procedure of the Court of First Instance and Article 21 of the EEC Statute of the Court. It emphasizes in that connection the particular position occupied by those pro- visions within the Community system of legal protection. It goes on to point out that they afford the necessary procedural guar- antees for safeguarding the parties' rights of (c) As to the likelihood of the existence of defence. substantial defects in the contested act

and for that reason was unable to bring to facts only on 10 December 1991. In any the notice of the Court until after the oral event, submission of a request for the procedure was concluded. 42 Facts of that reopening of the procedure was not subject kind, the appellant alleges, were those to any legal period of limitation. The three- revealed on 10 December 1991 by officials month limitation period in Article 125 of of the Commission in the context of the the Rules of Procedure of the Court of First PVC cases which, owing to their gravity Instance concerns solely the review proce- and general import, go beyond the bounds dure of application for revision and, con- of that case and directly concern the sequently, as a limitation placed on a Polypropylene decision under considera- procedural right, cannot be applied by

Instance. Specifically the non-existence of interpreted in conjunction with the provi- an authenticated original, following the sions of Article 64(1) thereof and Arti- Court's holding in the PVC judgment, cle 21 of the EEC Statute of the Court. constitutes an infringement of an essential According to Hüls, the Court of First procedural requirement entailing annul- Instance, in the context of its obligation ment of the contested decision without the to assemble the evidence essential to the need to adduce any further evidence. As resolution of the dispute, is required to regards the time-limit for making the order measures of inquiry when the follow- request to reopen the oral procedure, Hüls ing three preconditions are cumulatively points out that it learnt of those relevant satisfied: first, the facts having evidential value must refer to arguments of the parties having a decisive influence on the outcome of the dispute; secondly, the Community judicature must be unable to reach a decision precisely because it does not know whether those facts are relevant or not and, thirdly, further evidence must be obtained 42 — The appellant refers on that point to judgments in Joined in order to ascertain their concurrence. Cases 2/62 and 3/62 Commission v Luxembourg and When the above preconditions are met, the Belgium [1962] ECR 425 and Case 195/80 Michel v Parliament [1981] ECR 2861. Community judicature is bound to carry

out the necessary measures of inquiry. On the proceedings in the PVC cases. Finally, this point the appellant relies on the Hüls considers that, in holding in "its Opinion of Advocate General Lagrange in judgment appealed against that there had the La Providence case 43 and the position not been submitted to it adequate and taken by the Court in the Nolle case. 44 concrete evidence capable of supporting its According to the appellant, its request of request for further measures of inquiry to 4 March 1992 satisfied the abovemen- be carried out, the Court of First Instance tioned preconditions and, consequently, infringed the rules on the burden of proof. ought to have led to the reopening of the oral procedure. That request entailed in all likelihood a submission as to the non- existence of the Polypropylene decision. The reply to that submission cannot have other than decisive importance for the resolution of the dispute. Likewise it founds its request on factual circumstances (non- existence of an original, breach of the linguistic regime, ex post facto alterations of the content of the act) which would be likely to be well founded. In order to ascertain those matters it was essential for 43. For its part the Commission observes, further measures of inquiry to be carried to begin with, that the appellant is wrong out and specifically for the Commission to to claim that the Court of First Instance be requested to produce relevant docu- was under an obligation to order the ments in its possession. According to the reopening of the oral procedure because appellant, the Court of First Instance was, that measure was not essential in the therefore, obliged to accede to its request to present case. In the Commission's view, carry out fresh measures of inquiry (as the applicant's request for the reopening of contained in its application for the reopen- the oral procedure was not based on facts ing of the oral procedure). That application of relevance to the resolution of the dis- was not subject to a procedural time-limit pute, and was submitted out of time. The or, consequently, to that laid down in submissions concerning breach of the lin- Article 125 of the Rules of Procedure of guistic regime governing the act or con- the Court of First Instance which concerns cerning non-existence of an authenticated solely the procedure for an application for original of the contested act were rightly revision. It ought, then, to have been dismissed by the Court of First Instance acceded to, which was precisely what because, as the Court subsequently held in happened in similar circumstances during its PVC judgment, those defects, even if they are present, do not render non-existent the act vitiated by them. As far as the matters relied on by the applicant as new facts are concerned, the Commission makes the following observation: inasmuch as they are related to the PVC judgment of the Court of First Instance they cannot be 43 —Judgment in Joined Cases 29/63, 31/63, 36/63, 39/63 to prayed in aid to support an application to 47/63, 50/63 and 51/63 Usines de la Providence and reopen the oral procedure; it has been held Others v High Authority [1965] ECR 911. 44 —Judgment in Case C-16/90 Nölle [1991] ECR I-5163. that the content of a judicial decision

cannot justify the reopening of the oral that it is alleging formal invalidity and not procedure in another case. 45 If the new that the Polypropylene decision in question facts are considered to be constituted by the is non-existent. Moreover, it points out that disclosures made at the hearing by the the appellant bore the burden of proof as representatives of the Commission on regards the existence of the relevant proce- which the PVC judgment of the Court of dural defects and not the Commission. The First Instance was based, their submission contrary interpretation advocated by the by Hüls in its request of 4 March 1992 was appellant runs counter to the presumption out of time. The relevant request ought to of legality of acts of Community institu- have been made within three months of the tions in accordance with case- law. 46 date when those new facts came to the Further, Hüls could not merely rely on a applicant's knowledge by analogy with the probable failure to observe the procedure provisions laid down in the case of an laid down in Article 12 of the Commis- application for revision under Article 125 sion's rules of procedure. It had to bring of the Rules of Procedure of the Court of forward concrete evidence to show that the First Instance. The Commission states that, Polypropylene decision had undergone as early as the afternoon of 22 November alterations as to its content after its adop- 1991, one of its officials had acknowledged tion. That interpretation which was fol- in the context of the procedure leading to lowed by the Court of First Instance in the the hearing in the PVC cases that the judgment under appeal is supported, again procedure laid down in Article 12 of the in the Commission's view, by the judgment Commission's rules of procedure had fallen in Lestelle v Commission. 47 In any event, into disuse. From that day on, then, the possible formal invalidity of the Poly- according to the contentions on behalf of propylene decision ought, in accordance the respondent, Hüls knew of the facts on with Article 48(2) of the Rules of Proce- which it relied in its request for the reopen- dure of the Court of First Instance, to have ing of the oral procedure. been submitted in the originating applica- tion and not in any event after the conclu- sion of the oral procedure. In the alterna- tive, it is contended on behalf of the respondent that it was in the absolute discretion of the Court of First Instance to decide whether reopening of the procedure was necessary or not. 48

of Procedure is concerned, the Commission — My reply on the above issues observes that there are no predetermined conditions which may be inferred either from those provisions or from any other procedural rule which, when met, oblige the Community judicature to accede to a request for the adoption of measures of 47. In light of the foregoing, the question organization of procedure. Consequently, it arises whether the Court of First Instance is not correct to assert that the Court of lawfully rejected the application to reopen First Instance is required to engage in the the procedure which is directly linked with task of information collection concerning the likely existence of substantial proce- also facts raised belatedly or in a general dural defects in the Commission's Polypro- and uncertain manner by the parties. Con- pylene decision. versely, the respondent relies on the provi- sions of Article 173 of the Treaty, the first paragraph of Article 19 of the EEC Statute of the Court of Justice and Article 44(1)(c) and (e) and Article 48(1) and (2) of the Rules of Procedure of the Court of First Instance from which it derives the principle of the obligation on the part of the applicant to submit its applications within the time-limits together with evidence in (i) Powers of the Community judicature in support. Measures of organization of pro- regard to the organization and conduct of cedure are not intended to remedy omis- proceedings sions of the parties as regards the presenta- tion of their arguments within the time- limits and in accordance with legal require- ments. The Commission goes on to observe that the appellant's submission that there is a discrepancy between the PVC judgment 48. Neither from a literal or purposive and the present case on the relevant issue interpretation of the provisions of Arti- was put forward for the first time in the cles 49, 62 and 64 of the Rules of Proce- reply and is for that reason inadmissible. dure of the Court of First Instance, 49 nor Finally, the Nolle judgment relied on by from any other procedural rule, may an Hüls did not concern the Community obligation on the Community judicature be judicature and does not interpret or apply inferred to grant applications by the parties any procedural rule relevant to the solution to reopen the oral procedure or to order of the present dispute. additional measures of inquiry. The Court of First Instance simply has the discretion- ary power to do so, in accordance with the general principle of procedural law whereby the Court is master of both procedure and evidence. Those powers of the Court are recognized both by the 46. Concerning the observations and argu- ments of the intervener, I would refer to 49 — Corresponding to Articles 45 and 61 of the Rules of paragraph 10 et seq. of my Opinion. Procedure of the Court.

51. In the first place, the Court of First (ii) The refusal by the Court of First Instance did not err in holding that, even Instance in the light of the rules concerning though the Commission had committed the the burden of proof irregularities raised, there was no ground for a declaration of non-existence. 50 Nevertheless, as mentioned earlier in my

50 — At this juncture I would refer to the Court's PVC judgment, discussed above, and to my observations relating to the legal classification of the defect constituted 50. In the present case the appellant relied by the lack of an authenticated original. See also para- in the proceedings at first instance, after graphs 20 et seq. and 38 of my Opinion.

I-4318

HÜLS V COMMISSION

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where that party by its conduct has ren- which it could and was obliged to. Cer- dered access to them impossible. 53 In those tainly, that evidence does not constitute full cases the party making that submission is, proof, or even detailed indications of the in my view, under the following obliga- commission of an illegality. However, tions: first, to adduce evidence to show that under the rules governing the burden of the material unknown to it would be proof — at any rate in the present case — 'relevant to its defence'; 54 and secondly, Hüls was under an obligation to adduce to adduce at least prima facie evidence for prima facie evidence of a suspected infrin- the conjectures which it considers may be gement and not full and sufficient evidence borne out by those materials to which it has of such infringement. no access. 55

53 — Judgment in Case 49/65 Acciaierie Napoletane v High Authority [1966] ECR 73. 54 — Cf. judgment in Case T-145/89 Baustahlgewebe v Com- mission [1995] ECR II-987, paragraph 34. 55 —Judgment in Case 51/65 ILFO v High Authority [1966] ECR 87. I would observe that the party in question is not free from every procedural burden in making its submis- (iii) Examination of submissions put for- sion because there would then be a presumption in favour ward after closure of the oral procedure of finding that the defects which ne alleges are indeed present. The party must, in order to persuade the court to investigate further his submission and possibly to order further measures of inquiry, adduce prima facie evidence of the matters in respect of which he makes submissions. Certainly, prima facte evidence fluctuates according to the particular circumstances of each case and cannot be equated with full proof. It would, moreover, be excessive to require a person to produce full proof before a court of matters of which he cannot have full knowledge, a fortiori when that is required of a party who, since he precisely does not have 57. However, the above finding does not access to certain materials, on that ground is seeking a court order for further measures of inquiry, in order to suffice to uphold the appeal. As has been produce 'sufficient evidence' of the irregularities which he repeatedly emphasized, the plea as to the surmises will emerge following the carrying out of such further measures of inquiry. existence of procedural defects in the

60. Accordingly, the possibility of raising pleas in law based on matters which have come to light subsequently is provided for in Article 48(2) of the Rules of Procedure of the Court of First Instance but, since it is exceptional, must be narrowly construed. 59. One such procedural limitation is that contained in Article 48(2) of the Rules of Procedure of the Court of First Instance. 56 — See Article 44(1) of the Rules of Procedure of the Court of Under that provision 'no new plea in law First Instance.

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61. Moreover, even when the Court is requested to examine a matter or plea (iii.2.) Exceptions to the prohibition on which was submitted late, albeit within raising pleas after closure of the oral the temporal limits of the written proce- procedure dure, it assesses the extent to which that delay prevents the other party from effec- tively defending its interests, pursuant to the principle of equality as between the 63. None the less, the rule enunciated parties, or impedes the Court in the perfor- above is in my view subject to exceptions. mance of its judicial tasks. 58 In the affir- I believe there to be two possible grounds mative they are not examined. Extrapolat- which might justify derogations from the ing that reasoning to cases where pleas are prohibition on the submission of new pleas raised and matters relied on after the after the closure of the oral procedure. The closure of the oral procedure, I would first is where the issue raised out of time by observe that that is likely to affect the the party falls within the category of those rights of the defence of the other party and which may be examined by the Community at all events impedes by definition the work judicature of its own motion. In that event of the courts. In such a case they are being there is not essentially a reversal of that prohibition but a relativization of its 57 — That limitation is to be found in all national systems of procedure, stemming as it does from the fundamental principle of legal certainty and the proper administration 59 — That is precisely the difference between the present case of justice. and the PVC, LdPE and Soda Ash cases. In the latter cases 58 — See judgment in Case 74/74 CNTA v Commission [1975] the parties' submissions as to the likely existence of formal ECR 157, paragraph 4: also judgment in Case T-109/92 defects in respect of the contested parts of the decision may Bassols v Court of Justice [1994] ECR II-105, paragraph have been raised belatedly but in any event before closure 67. of the oral procedure.

65. One further observation is of particular (iii.2.1) Whether the matters in respect of relevance : the grounds which would justify which late submissions were made became a reopening of the oral procedure are the known after the end of the oral procedure same which, a fortiori, justify reversal of a judgment in the event of an application for revision. The link between the legal issue examined here and that arising when an application for revision is made is in fact very close and of particular relevance for an understanding and solution of the present case. 64. A derogation from the prohibition on raising new matters or pleas out of time, particularly where they were not known to the party concerned before closure of the oral procedure, must be accepted by Com- munity procedural law. On the one hand, it follows from the general provision con- tained in Article 48(2) of the Rules of Procedure of the Court of First Instance. Even though that paragraph belongs sche- matically to the chapter concerning the 66. In accordance with the aforementioned written procedure, it refers generally to the provisions of Article 41 of the EEC Statute submission of new pleas 'in the course of of the Court of Justice and Article 125 of proceedings'. Consequently, as the Court the Rules of Procedure of the Court of First has held, 61 it also includes the possibility of raising new pleas after the closure of the 62 — It should be noted that Article 64(4) of the Rules of Procedure of the Court of First Instance provides that 'each party may, at any stage of the procedure, propose the 60 — See below paragraph 77 et seq. adoption (...) of measures of organization of procedure.' 61 — Judgment in Case 77/70 Prelle v Commission [1971] ECR That request may be based on the existence or probability 873, paragraph 7. of new factual matters.

68. It will be necessary, then, to allow application to be made of the Community judicature for the reopening of the oral procedure, whenever a fact of importance — it was not known to the party and to to the judgment to be given, which was the Court prior to judgment being unknown to the Court and to the party given; seeking a reopening, becomes known prior to closure of the oral procedure. It remains to be determined whether it is essential for the application for reopening of the oral procedure to be submitted within three months of the date on which the fact came to the applicant's knowledge by analogy with Article 125 of the Rules of Procedure — a period of three months has not of the Court of First Instance in the case of elapsed after it came to the notice of an application for revision. Analogous the person seeking revision. interpretation of a procedural provision — particularly of a time-limit conditioning the exercise of a right — does not appear to be applied in the Community legal order in the same way as for other provisions in gen- eral. Nevertheless, it would be contrary to the fundamental principles requiring the speediest and best possible administration 67. I am of the opinion that an application of justice for a party to be allowed com- for reopening of the oral procedure should plete freedom of choice as to the moment be upheld when the analogous conditions when it wishes to submit its application for to those laid down for an application for reopening of the procedure. Such applica- revision to be deemed admissible are met. If tion will have to be made not only within a it were otherwise, we would be faced with reasonable time of the date on which the the legal absurdity that the party learning relevant fact became known (which period of a relevant matter after closure of the oral ceases to be reasonable, again in my view, procedure not only would not be able to after the expiry of a three-month period)

72. In the present case the moment when 63 — It could be argued that the disclosures by the Commission the fact of importance for the judgment representatives in the PVC cases, on which the applicant's pleading was founded, do not constitute 'facts' but rather an indirect means of covertly putting forward a series of grounds of annulment of the Polypropylene decision. Under that interpretation those grounds were raised out 64 — That viewpoint is also echoed by the Court when it of time and are therefore inadmissible. I do not think that examines the admissibility of an application for revision. It the above interpretation of the pleading needs to be has been made clear in case-law that the application for followed, though it does not lack logical support. The revision, owing to its exceptional nature, is subject to pleas in law of the applicant presuppose a factual particularly strict criteria of admissibility. 'Total absence of circumstance, namely breaches by the Commission on knowledge' of the fact underpinning the application for the adoption of the Polypropylene decision. What is revision is required; that is not the case if knowledge of the important is to determine the moment in time when the fact was possible during the course of the original applicant at first instance learnt or ought to have learnt of proceedings. See judgment in Case 116/78 Rev Bellintani those irregularities. v Commission [1980] ECR 23.

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65 — It should be observed that the party who through its own fault did not learn in due time of a fact cannot plead the 74. That evidence is, none the less, weighty delay in its information in order to succeed in its inasmuch as it concerns the probability that application for reopening of the oral procedure. That solution was adopted by the Court in Case 56/70 Mandelli an infringement of an essential procedural v Commission [1971] ECR 1, in regard to the examination as to the admissibility of an application for revision. The requirement occurred on adoption of the party seeking revision relied on a report by the Italian Polypropylene Decision at issue. Yet they authorities of which it learnt only after the end of the original proceedings. However, the Court held that the do not constitute unknown facts of decisive applicant could not have been unaware of the existence of importance to the judgment in the sense that report and that there was nothing to prevent it from having 'suggested that the Court should make a prepara- that they create doubts for the first time as tory inquiry directed towards the production... of the document in question and any other relevant information to the formal legality of the contested act; in the hands of the Italian administration.' On those they simply further reinforce the suspicions grounds the application for revision was refused. The Court will refuse an application for the adoption of already aroused by the documents in the further measures of inquiry submitted after closure of the oral procedure where the party had the possibility of file which were available to the party prior submitting the application prior to closure thereof (judg- to commencement of proceedings. The duty ment in Case C-415/93 Bosman [1995] ECR I-4921, paragraph 54). of diligence incumbent on the latter

76. Thus, the fact first giving rise to doubts as to the observance of the formal pre- conditions on the adoption of the Polypro- pylene decision by the Commission is 75. Furthermore, the case-file must be constituted by the omission from the Court complete and accessible to the parties so file of the case of such evidence as would as to enable verification of its contents, as prove beyond doubt observance of the also the omission of other relevant mate- formal preconditions in question. 67 Tem-

appropriate. On the other hand, I do not agree with the proof, it was sufficient for the applicant to viewpoint of the Court of First Instance in the above- mentioned Soda Ash and LdPE cases (footnotes 8 and 9 raise at the appropriate time the issue of the respectively) in which it was held that the applicants were possible absence of an original of the act in right to await final judgment in the PVC cases before making the relevant factual submissions in their own cases. order for the Court of First Instance to Irrespective of whether the disclosures made during the course of the procedure in the PVC cases were unknown or order the carrying out of further measures not to the parties to the other proceedings, those parties of inquiry and, in particular, to order the were bound in any event to examine diligently the formal legality of the act concerning them, even if only from a Commission to produce evidence in its review of the case-file. The subsequent disclosures simply reinforced suspicions that the Commission had been guilty of irregularities. Again, the appellant cannot rely on the presumption of legality of the contested act as a reason why it could not 66 — Thus, the applicant was precluded from validly raising the conceive that behind its apparent completeness lay sig- substantial procedural defects after closure of the oral nificant defects. From the moment when a person chal-

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(iii.2.2) Whether the plea raised out of time was adopted in breach of an essential is required to be reviewed by the Court of procedural requirement, is the judicature its own motion obliged to annul the act. Certainly, it may avail itself of its discretion not to be satisfied by the evidence of the file and to order the carrying out of further measures of inquiry. That investigation is however 77. It remains to be examined whether the optional and not mandatory. The fact alone consequences of the fact that a plea is that starting from certain indications from raised out of time may be overcome in the the already existing evidence concerning event that that plea is to be reviewed of the issues reviewed of the Court's own motion, Court's own motion. Indeed, the absence of the Court could have pursued its investiga- an authenticated original of the Commis- tion further in order possibly to establish sion's decisions constitutes, as already sta- that the contested act is unlawful, does not ted, an infringement of an essential proce- suffice in order to set aside the judgment as dural requirement and as such may be having been delivered in breach of the rules reviewed by the Community judicature of on ex officio judicial review. its own motion. 6 9The question arises, then, whether the Court of First Instance would need to proceed to an examination of the pleas of the parties raised out of time and to set aside the contested act or at least to order measures of inquiry to be con- ducted in order to establish the existence of any formal defect.

I - 4328

HÜLS V COMMISSION

paragraph of Article 173 of the EEC Treaty 81. The question arises, as the Commission the possibility that the contested measure is rightly points out, whether and under non-existent must automatically be investi- which conditions the manner in which the gated'. 71 facts were found by the court trying the substantive issues, on the one hand, and the content of those findings, on the other, constitute points of law in accordance with Article 51 of the EEC Statute of the Court and, as such, whether they may be reviewed by the appellate jurisdiction. It follows from the foregoing that the application for reopening of the procedure submitted by the appellant prior to delivery of the judgment at first instance was rightly dismissed. All the grounds of appeal to contrary effect are unfounded and must be The issue of admissibility will be examined rejected. in the context of the investigation into the pleas raised by the appellant. In its plead- ings, correctly construed, Hüls is challen- ging the findings of the Court of First Instance on three main issues: its participa- tion, first, in regular meetings of Polypro- pylene producers, secondly in price initia- tives and, thirdly, in the adoption of B — Pleas concerning the finding by the measures designed to facilitate the imple- Court of First Instance of infringements of mentation of the price initiatives. Article 85 of the Treaty

80. In the second part of its application the appellant company points to a series of errors alleged to have been made by the (1) Arguments of the parties Court of First Instance in its review and in the finding of the relevant facts in the present case.

Polypropylene producers from the end of requiring the appellant to prove a negative 1978 or the beginning of 1979. In actual fact: its non-participation in anti-competi- fact, according to the appellant, the Court tive conduct. In that connection reference is of First Instance based its finding, first, on a made to the Opinion of Advocate General reply from a competing company, ICI, to a Sir Gordon Slynn in Musique Diffusion question from the Commission which states Française v Commission. 73 The appellant nothing concerning the duration of the further maintains that the Court of First appellant's participation in those meetings, Instance, by inferring its regular participa- secondly, on various tables in the posses- tion in the meetings of Polypropylene sion of ICI, ATO and Hercules which, producers without there being any prima however, constitute particularly subjective facie evidence for that, is essentially estab- evidence, just as there are several views as lishing a presumption against the appellant, to how they were assembled, and do not requiring the appellant to rebut that pre- enable conclusions to be drawn concerning sumption, thus reversing the rules on the the duration of participation in the relevant burden of proof. meetings and, finally, on the appellant's reply to the request for information addressed to it by the Commission from which it was inferred, against logic and in conjunction with the appellant's participa- 83. The Commission considers that in its tion in the meetings in 1982 and 1983, that arguments Hüls is calling in question the the company also participated 'regularly' in facts as found by the Court of First Instance earlier meetings (see paragraphs 114 to 118 and that, accordingly, its plea in that of the judgment appealed against). Conse- connection must be rejected as inadmissi- quently, Hüls maintains, the Court of First ble. In the alternative it stresses that the Instance based its conclusion on that point Court of First Instance did not base its on evidence lacking conviction and, sub- finding concerning the period of time stantively, solely on the information pro- during which Hüls participated in the vided by the competitor undertaking, ICI. meetings of polypropylene producers solely In that connection the appellant relies on on information supplied by ICI (paragraph the Court's judgment in Duraffour v Coun- 114 of the judgment appealed against) but

In intention (paragraph 126 of the judgment those circumstances there can be no ques- appealed against), the Court of First tion, in the Commission's view, of a rever- Instance infringed the rules governing the sal of the burden of proof. Nor may any burden of proof and violated the presump- such thing, moreover, be upheld in connec- tion of innocence of the accused by, in fact, tion with paragraph 126 of the judgment

appealed against. In that paragraph the the concept of a concerted practice: accord- Court of First Instance requires Hüls to ing to Hüls, for there to be a concerted substantiate the grounds on which it main- practice the matters which were the subject tains that its participation in substantively of consultations must be implemented. The unlawful evaluations are none the less not fact remains, according to the appellant, contrary to the rules on competition. That that its participation in all the price initia- requirement by the Court of First Instance tives was not proven and, therefore, the cannot be deemed to be contrary to the deliberately vague finding by the Court of rules governing the burden of proof nor to First Instance on that point (paragraph 173 violate the presumption of innocence. of the judgment appealed against) is in contradiction with the facts as found and infringes Article 190 of the Treaty. At the same time, Hüls calls in question the evidentiary value of the reply by ICI to the questions addressed to it by the Com- mission (see paragraph 174 of the judgment appealed against) in connection with the appellant's participation in the price initia- (b) Participation in price initiatives tives, certainly from as early as 1979. In light of the foregoing observations, finally, it casts doubt on the judgment at first instance holding it responsible for partici- pation in the price initiatives (paragraph 177 of the judgment appealed against). 84. In that limb of its arguments the appellant challenges the findings at first instance that it took part in the periodic meetings of polypropylene producers to determine price targets and that it adhered to initiatives in that regard (paragraphs 167 and 168 of the judgment appealed against). Hüls maintains that its participation was 85. According to the Commission, in the proven only in a limited number of meet- present case the requirement to produce ings. Furthermore, the fact that the Court concrete evidence in support of the sub- of First Instance infers from that participa- mission that participation in the meetings tion its collaboration in the price initiatives, of polypropylene producers did not entail requiring evidence to the contrary (para- collaboration in the price initiatives which graph 168 of the judgment appealed formed the subject-matter of those meet- against), amounts to a reversal of the ings (see paragraph 168 of the judgment burden of proof and a violation of the appealed against) does not amount to a presumption of innocence. That is all the reversal of the burden of proof. In the same more so, according to Hüls, since it rarely way the Court of First Instance adjudged followed the target prices and the relevant that the price instructions issued by the price instructions which it issued in that appellant were not purely of an internal connection were merely of an internal nature (paragraph 173 of the judgment nature within the undertaking. The whole appealed against). Finally, the reference to issue is linked, moreover, to a misunder- Article 190 of the Treaty, in relation to the standing on the part of the Commission of reasoning contained in the judgment

88. As regards, finally, target tonnages and quotas, Hüls points out that the Court of 86. In that limb of its arguments the First Instance imputed liability to it based appellant challenges, first, the finding by on the mistaken finding that it regularly the Court of First Instance that, by parti- participated in the meetings of polypropy- cipating in the meetings at which a series of lene producers (paragraph 231 of the measures were adopted in order to create judgment appealed against). Moreover, conditions favourable to price increases, the reliance placed by the Court of First Hüls subscribed to those measures, inas- Instance on mention of the name Hüls in much as it adduces no evidence to the certain tables as supplementary evidence contrary (paragraph 190 of the judgment (paragraph 232) would appear to give the appealed against). According to the appel- impression that there was a series of lant, such reasoning based on an ill-defined indications as to the participation by Hüls reference to a 'set of measures' and which in the commission of the infringement. ignores the legal arguments and evidence However, those tables, in light of the adduced by Hüls at first instance, is not foregoing arguments, do not, in the appel- consistent with the obligation to provide a lant's view, constitute a reliable source, nor statement of reasons as provided for in do they permit the inference of the conclu- Article 190 of the Treaty, or with the rules sions drawn from them by the Court of concerning the correct appraisal of evi- First Instance. dence.

based on an incomplete reading of the cle 51 of the EEC Statute of the Court of judgment of the Court of First Instance. Justice, an appeal is limited to points of Moreover, the arguments by Hüls concern- law. It follows from those provisions, as the ing the system of account leadership dis- Court has consistently held, that an appeal regard the finding by the Court of First can only be based on grounds of an Instance (paragraphs 192 and 193) that infringement of rules of law to the exclu- that system was partially operational for sion of any appraisal of the facts. There- two months, even though the parties con- fore, the appellate court does not review cerned were dissatisfied by its results. the appraisal of the evidence by the court trying the substantive issues but only whe- ther an admissible plea has been raised that the court below has misdirected itself by distorting the clear sense of the evidence. The Court has jurisdiction under the afore- mentioned Article 168a of the EC Treaty to 90. As regards the target tonnages and review the legal classification of the facts as quotas, criticism is levelled by Hüls at the found, as well as the conclusions drawn findings made by the Court of First from those facts by the Court of First Instance in paragraphs 231 and 232, which Instance. 74 Thus, the Court is not compe- are said to disregard both the existing tent to find the facts or, in principle, to evidence and the precise content of the examine the evidence accepted by the tables, as is apparent from paragraph 233 Court of First Instance in connection with of the judgment appealed against. Conse- those facts. Provided that the evidence was quently, the appellant's arguments are inad- adduced and relied on lawfully and in missible, inasmuch as they refer to the accordance with the rules and general appraisal of the evidence by the Court of principles of law relating to the burden of First Instance. proof and the procedural rules governing the obtaining of evidence, the Court of First Instance is competent to appraise the value to be given to the evidence before it. 75

appellant's arguments is aimed at the reversal of the burden of proof by the Court appraisal of the existing evidence by the of First Instance and the attendant violation Court of First Instance on the basis of an of the presumption of innocence enuring to essentially different interpretation of that the appellant's benefit, does Hüls impute to evidence. In that context the evidential the judgment at first instance an error weight of various elements is called in reviewable on appeal. 77 question, such as the information supplied by ICI (paragraphs 114 and 174 of the judgment appealed against), the evidence gleaned from various tables (paragraphs 115 and 232 of the judgment) or that contained in notes of meetings of the polypropylene producers (paragraphs 191 and 192 of the judgment). In the appellant's view, that evidence cannot warrant the conclusions arrived at by the Court of First Instance concerning the participation by (b) Whether the pleas are well founded Hüls in the meetings of polypropylene producers during the whole of the period imputed to it, and its collaboration in the initiatives undertaken at those meetings. In doing so, however, the appellant is impugn- ing the substantive evaluation of the evi- dence without pleading and proving that the Court of First Instance distorted the 93. In my opinion the Court of First clear sense of the evidence, and conse- Instance in the judgment appealed against quently the allegations made in that regard did not infringe the rules on the burden of are inadmissible and must be rejected. 76 proof or the general principle of observance Only in regard to the allegation of a of the presumption of the innocence of the accused. Concerning those issues I refer to the analysis set out in the relevant para- graphs of my Opinion in the Enichem and Montecatini cases. 78

I - 4334

HÜLS V COMMISSION

V — Conclusion

94. In light of all the foregoing I propose that the Court should:

(1) Dismiss in its entirety the appeal brought by Hüls Aktiengesellschaft;

(2) Dismiss the intervention;