C-200/92

2. On 13 and 14 October 1983 Commis- sion officials, acting under the powers I — Facts and course of the procedure conferred by Article 14(3) of Council Reg- before the Court of First Instance ulation No 17 of 6 February 1962 3 (here- inafter 'Regulation No 17'), carried out simultaneous investigations in a number of undertakings operating in the polypro- pylene production sector. Following those 1. As regards the facts of the dispute and investigations, the Commission addressed the course of the procedure before the requests for information, under Article 11 Court of First Instance, the judgment under of Regulation No 17, to the above compa- appeal relates as follows: Before 1977 the nies, and also to other related undertakings. west European polypropylene market was From the evidence obtained during the supplied almost exclusively by ten produ- course of those investigations and from cers, one of which (and also one of 'the big the requests for information, the Commis- four') was ICI, with a market share fluctu- sion concluded that, between 1977 and 1983, certain polypropylene producers, * Original language: Greek. 1 — Case T-13/89 ICI v Commission [1992] ECR II-1021. 2 — IV/31.149 — Polypropylene, OJ 1986 L 230, p. 1. 3 — OJ, English Special Edition 1959-1962, p. 87.

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including ICI, had been acting in contra- originating in mid-1977 by which the vention of Article 85 of the Treaty. On producers supplying polypropylene in the 30 April 1984 the Commission decided to territory of the EEC : open the proceedings provided for by Article 3(1) of Regulation No 17 and sent a written statement of objections to the undertakings in contravention.

(d) i n t r o d u c e d s i m u l t a n e o u s price 4. Fourteen of the fifteen companies which increases implementing the said tar- were the addressees of the Commission gets; decision, including the appellant, brought an action for its annulment. At the hearing before the Court of First Instance, which took place from 10 to 15 December 1990, the parties presented oral argument and answered questions from the Court. (e) shared the market by allocating to each producer an annual sales target or "quota" (1979, 1980 and for at least part of 1983) or in default of a definitive agreement covering the whole year by requiring producers to limit their sales in each month by reference to some previous period 5. By letter lodged at the Registry of the (1981, 1982). Court of First Instance on 4 March 1992, when the written and oral procedure had, as stated above, been completed, but never- theless before judgment had been delivered, ICI asked the Court of First Instance to reopen the oral procedure. In support of that request it relied on certain factual evidence of which, it maintained, it had only become aware after the conclusion of the oral procedure and, in particular, after delivery of the judgment of 27 February 1992 of the Court of First Instance in the related cases BASF and Others v Commis- Article 3 sion (hereinafter 'the "PVC" cases'). 4ICI alleged that that evidence had brought to light serious procedural defects in the contested decision, the investigation of The following fines are hereby imposed on which required further measures of inquiry. the undertakings named herein in respect of the infringement found in Article 1 :

7. With regard to the admissibility of the intervention of DSM in the present case, in principle the same considerations apply as are set out in the corresponding points of my Opinion in the related case Hüls. 6 From that analysis the following conclu- 6. ICI lodged an appeal against that deci- sions may be drawn: sion, requesting the Court to set it aside and to recognize the non-existence or invalidity of the Commission's Polypropy- lene decision, or, in the alternative, to refer the appeal back to the Court of First Instance. At the same time it asked for an order that the respondent pay the costs. In DSM's intervention in the present case its observations on the appeal, ICI stated could be held partially admissible as that, following the judgment of the Court regards the part in which the intervener of Justice in PVC, 5 it was no longer lends support to the appellant's request that claiming that the Polypropylene decision the Court, after setting aside the judgment was non-existent but maintained its pleas of the Court of First Instance, hold the regarding the invalidity of the decision. Polypropylene decision non-existent. The remaining claims in the intervention or the arguments upon which it relies in order to support other claims in the appeal need not, in any case, be considered as to their substance since they are not admissible.

The Commission requests that the Court dismiss the appeal and order the appellant to pay the costs.

However, in the present case, the appellant withdrew, in its reply, its arguments con- cerning the non-existence of the Polypro- pylene decision; that is to say, it has reduced its claims and now seeks annul- ment of the decision, not a declaration that DSM NV intervened in the appeal in the decision in question is non-existent. In support of ICI. consequence, DSM's intervention is ren-

A — Arguments of the parties 'It must be stated that the judgment deliv- ered in the abovementioned cases (judg- ment of 27 February 1992 in Cases T-79/89, T-84/89 to 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 Commission [1992] ECR (a) Pleas submitted by the applicant II-315) does not in itself justify the reopen- ing of the oral procedure in this case. The Court observes that a measure which has been notified and published must be pre- 9. ICI relies in its pleadings, first, on defects sumed to be valid. It is thus for a person in the procedure followed before the Court who seeks to allege the lack of formal of First Instance and, secondly, on infringe-

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12. Further, ICI considers the reasoning of the Court of First Instance, according to which the applicant had not put forward any evidence to suggest that the contested 10. In the alternative, the appellant main- decision had not been adopted by the tains that the Court of First Instance Members of the Commission acting as a should, of its own motion, have annulled college, to be unfounded in so far as the the contested decision on the grounds of said statements of the Commission's agents infringement of an essential procedural at the hearing of the PVC cases before the requirement. In addition, inasmuch as Court of First Instance made it quite clear those substantial procedural defects fall that the procedure laid down in Article 12 within the category of grounds of annul- of the Commission's Rules of Procedure ment to be reviewed of the Court's own was no longer complied with when deci- motion, the Court is bound to examine sions were adopted. The same Commission them of its own motion and to take the agents defended the Commission's practice appropriate steps to enable it to reach a of subsequently altering the content of decision on them. In particular, the appel- decisions after their adoption and empow- lant maintains that the reasoning contained ering one of the Members of the Commis- in paragraph 401 of the judgment under appeal, rejecting its claims that the oral procedure should be reopened and mea- 7 — See footnote 4 above.

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OPINION OF MR COSMAS — CASE C-200/92 P

15. In particular, the appellant observes that, according to the PVC judgment of the Court of Justice, authentication of the Commission's decisions constitutes an 14. With regard to the statement in the essential procedural requirement under judgment under appeal according to which Article 12 of the Commission's Rules of

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Instance. The appellant relies on the above- mentioned provisions of Article 48(2) of the Rules of Procedure of the Court of First Instance which, according to the interpre- tation which it considers correct, allow the submission of new pleas at any stage of the proceedings if they are based on matters which come to light in the course of the procedure. ICI maintains that the proce- dure terminated only when the judgment at issue was delivered by the Court of First 16. In addition, the appellant points out Instance and consequently reliance on evi- that the Court of First Instance was wrong dence which only became known after the in law in holding that ICI had not produced oral procedure had been concluded and the the 'evidence' required in order for its request for reopening of the oral procedure to be upheld.

procedural requirement. At all events, Commission [1995] ECR II-1901) in which, according to ICI, it was held, first, that the statements of the Commis- however, ICI considers that it complied sion's agents in the PVC cases could be adduced by the with the rules on the burden of proof and applicants as evidence from which the existence of an infringement in the contested decision of an essential submitted both the documents and evi- procedural requirement could be inferred and, secondly, that by those statements the Commission admitted that it dence required under those rules. On that did not comply with the procedural requirements when point the appellant considers it useful to adopting decisions produced prior to the end of 1991. In addition, the appellant points out that in the Parker Pen review the solutions accepted by the Court judgment of 14 July 1994 (Case T-77/92 [1994] ECR II-549), the Court of First Instance had invited the of First Instance in recent judgments where Commission to produce the authenticated copy of the it was confronted with exactly the same contested decision prior to the hearing.

submission of new pleas was generally 18. As regards the duty to investigate of its possible on 4 March 1992, the date on own motion procedural defects in contested which it submitted its letter to the Court of decisions outside the procedural time-lim- First Instance. The possibility of supple- its, the appellant points out that it relies on menting pleas until the judgment of the the principles of procedural economy and Court of First Instance has been delivered proper administration of justice as recog- also follows from Articles 49 and 62 of the nized in the case-law. 12

According to the that it is procedurally possible to raise the Commission, there is no doubt that parties plea of procedural defects in the contested who have a lawful interest are bound to decision even after the conclusion of the plead the procedural defects in the decision written procedure. Lastly, the appellant that they have challenged and to produce adds that, at all events, the question the relevant evidence in due time. From the whether its letter and the pleas raised procedural point of view, if reliance is therein were out of time does not have placed on such defects, they should be any practical significance inasmuch as the pleaded with the application initiating Court of First Instance should have exam- proceedings, unless the pleas in question ined those pleas of its own motion. are based on evidence which became known in the course of the procedure. Particularly in a case where failure to observe the procedural requirement of authentication of the Commission's deci- 9 — See footnote 8. sions, pursuant to Article 12 of the latter's 10 — Judgment of the Court of First Instance in Case T-442/93 Rules of Procedure, is alleged, it is essential AAC [1995] ECR II-1329. 11 — See footnote 8. The appellant emphasizes the similarities of to question compliance with that require- those cases with the case before the Court and considers ment with cogent evidence which must be that the reasoning of those cases should have been followed when its application was being heard. According submitted in proper time by the party with to the appellant, the Court of First Instance held as follows in the Soda Ash cases: the applicant was held to have the burden of proof, and that evidence must submitted its new plea, that the existence of procedural defects could be inferred, as expeditiously as possible; it was also held that the appellant could not have been aware of an infringement of Article 12 of the Commission's Rules of Procedure before the statement of the Commission's 12 — The appellant refers to the result reached by the Court of agents at the hearing of the PVC cases and the applicant First Instance in the said PVC and Soda Ash cases, cited in was considered to have been justified in waiting for the footnote 8, and the judgments in Case 18/57 Nold [1959] PVC judgment to be delivered before raising those new ECR 41; Case C-291/89 Interhotel [1991] ECR I-2257;

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facts of a different kind. For that purpose it refers to the terms of ICI's request sub- mitted to the Court of First Instance o n 4 March 1992; the Commission observes that in that request there is an express reference to the PVC judgment of the Court of First Instance. Moreover, if ICI had in fact intended to base its request not on that judgment but on the disclosures of the Commission's agents at the hearing in the PVC cases, it would not have awaited

22. As regards ICI's arguments in respect of reopening of the oral procedure. Secondly, the second ground contained in paragraph it held that ICI had not put forward any 401 of the judgment under appeal, the evidence to suggest that the Polypropylene Commission contends that these are inad- decision had not been adopted lawfully by missible. In particular that ground is based the Commission, acting as a college, or that on the finding by the Court of First Instance there had been a change to the text after its that ICI had not, in its letter of 4 March adoption. 1992, put forward any evidence to suggest that the Polypropylene decision had not been adopted by the Members of the 13 —The Commission points out that even if the disclosures made by its agents before the Court of First Instance at the Commission acting as a college or that that hearing in the PVC cases were considered to be cogent decision had been altered after its adoption. evidence for a decision in the present case, that evidence was properly not taken into account because it was The Commission observes that the failure submitted out of time. In particular, the Commission contends, first, that those disclosures took place at the to produce specific evidence in respect of hearing on 20 November 1991 and not on 10 December the alleged unlawful alteration of the 1991 as the appellant maintains; secondly, even if the latter date were accepted, the letter seeking the reopening of the content of the Polypropylene decision after oral procedure was submitted late, only at the beginning of March 1992. its adoption can be deduced from simply

reading the letter submitted by ICI on and points out that the Court of First 4 March 1992; the appellant does not, Instance was right in not reopening the oral moreover, dispute that point. Furthermore, procedure, not simply because ICI had not the question whether or not it had pro- relied in support of its request on suffi- duced sufficient evidence to suggest defects ciently weighty evidence to suggest the in the decision at issue constitutes a ques- alleged procedural defects in the Polypro- tion of fact, not of law. Consequently it pylene decision, but also because that cannot form the subject-matter of review evidence was submitted out of time. The on appeal. Commission considers that that ground underlies the Court's rejection of ICI's request that the procedure be reopened. It draws that conclusion from the formula- tion of the judgments of the Court of First Instance in the other actions challenging the same decision which were published on the same date as the judgment under Lastly, the respondent contends that, in any appeal, and adds, in conclusion, that the case, the Court of First Instance did not appellant's plea that the Court of First infringe any procedural or substantive rule Instance required it, in order to succeed in of Community law in refusing, despite ICI's its request that the procedure be reopened, request, to reopen the oral procedure and to adduce full evidence, is unfounded, since to order further measures of enquiry. The it does not explain why that request and the appellant's pleas on that point should, related arguments were submitted late; accordingly, be dismissed as unfounded. from that point of view the criteria applied According to the Commission's contention, by the Court of First Instance in the case the Court of First Instance properly disre- were correct in law. garded ICI's request, inasmuch as it was not based on pleas of fact or law sufficient to cast doubt on the presumed validity of the Polypropylene decision following from its notification and publication. The Commis- sion cites the PVC judgment of the Court of Justice, from which it considers that a principle of interpretation can be deduced to the effect that the presumed validity of a decision of a Community body may be called into question only by a party having B — Examination of the grounds of appeal a lawful interest and raising substantiated and serious doubts as regards compliance with the procedural rules in the adoption of that decision. In addition those doubts must be raised at the appropriate time. 14 The respondent applies that rule of inter- 23. (a) I will take as my starting point the pretation to the facts of the present case lawfulness of the first ground contained in paragraph 401 of the judgment under appeal. The Court of First Instance dis- 14 — In support of its arguments, the Commission cites the missed ICI's request that the oral procedure judgments of the Court of First Instance in Case T-34/92 be reopened because it considered that the Fiatagri v Ford [1994] ECR II-905 and Case T-35/92 John Deere [1994] ECR II-957. sole evidence put forward to suggest pro- I - 4412

cedural defects in the Polypropylene deci- ing of the oral procedure, but took into sion was the content of the PVC judgment account all the arguments of fact and law of the Court of First Instance of 27 Febru- contained in ICI's request of 4 March ary 1992. 15 According to the appellant, the 1992. That ground of appeal is conse- Court of First Instance was wrong in its quently unfounded. assessment of the content of its request of 4 March; in that request it was not putting forward the PVC judgment of the Court of First Instance as the crucial evidence giving rise to doubts in respect of the formal 25. (b) The second ground contained in validity of the Polypropylene decision, but paragraph 401 of the judgment under the abovementioned disclosures by the appeal must now be examined.

. . any evidence to suggest that the appeal. That view is not, in my opinion, measure notified and published had not correct. The appellant is not challenging been approved or adopted by the members the findings and assessments of the facts by of the Commission acting as a college. . . .' the Court of First Instance, but raising the Consequently, when the Court of First question of a wrong interpretation of law. Instance delivered its judgment, it did not In particular, it maintains that the Court of confine itself to stating that reliance on the First Instance required it to produce exces- PVC judgment of the Court of First sively complete evidence in corroboration, Instance did not in itself justify the reopen- going beyond that which the rules on the burden of proof normally require.

. . .', misapplied the likelihood of procedural defects, viz. failure to authenticate the document, subsequent alteration to its content, and rules on the burden of proof to the facts. infringement of the language rules. In other words, it is not the legal characterization attributed by the parties to the Consequently those pleas in the appeal are facts but the facts themselves as relied upon by the parties admissible. which are significant. In particular, that is the case if those facts, if shown, although they may not render the decision non-existent, nevertheless constitute infringement of an essential procedural requirement in the adoption of the decision at issue. 16 — It is worth pointing out that that plea by the appellant is admissible at the appeal stage. While it is true that the Court of First Instance has sole competence to find the 26. As regards whether the said pleas are facts, it cannot, however, ignore a plea of fact properly put forward by one of the parties. founded, I would refer to the analysis

27. (c) The next question to be examined is whether the Court of First Instance could 29. My answer to the foregoing is in the reject ICI's request of 4 March 1992 on negative. I consider that it was correct not other grounds. That is to say, there remains to reopen the procedure because the request the question whether the Court of First in question did not fulfil the required Instance should have either granted the conditions, nor was there any obligation request of 4 March 1992 or, of its own to that effect under the rules of Community motion, reopened the oral procedure and procedural law on review by the Court of ordered measures of organization, in order certain questions of law of its own motion. that possible procedural defects in the That position is based on the analysis set decision at issue could be further investi- out at points 58 to 79 of my Opinion in gated. Hüls, to which I would refer in this case.

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VI — Conclusion

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

(1) Dismiss the appeal of Imperial Chemical Industries PLC in its entirety;