C-227/92

HOECHST V COMMISSION

OPINION OF ADVOCATE GENERAL COSMAS delivered on 15 July 1997 *

Table of Contents

I — Facts and course of the procedure before the Court of First Instance I - 4448 II — Admissibility of the appeal I-4451 III — Admissibility of the intervention I-4452 IV — Grounds of appeal I-4453 A — Relevant provisions of the Court's PVC judgment I-4453 B — The judgment appealed against I-4453 C — Examination of grounds of annulment I-4454 (1) Limits of the powers of the appellate jurisdiction I-4454 (a) Adoption of measures of inquiry by the appellate jurisdiction I-4455 (b)The new matters of fact raised at the appeal level I-4455 (2)The existence of substantial procedural defects vitiating the contested decision I-4456 (a) Arguments of the parties I-4456 (b) My reply to the abovementioned arguments I-4458 (i) Extent of the powers of the appellate jurisdiction and issues reviewed of the Court's own motion I-4458 (ii) The existence of proven formal defects in the contested decision . . I-4459 (3)Possible existence of substantial procedural defects vitiating the contested decision I-4460 (a) Arguments of the parties I-4461 (b) My reply on the above issues I-4464 Conclusion I - 4464

In this case the Court of Justice is called judgment of the Court of First Instance of upon to deliver judgment on the appeal of 10 March 1992. 1 The judgment under H o e c h s t AG ( h e r e i n a f t e r ' H o e c h s t ' ) appeal dismissed the action brought by brought pursuant to Article 49 of the EEC the appellant company pursuant to Arti- Statute of the Court of Justice against the cle 173 of the EEC Treaty (hereinafter 'the

1. As regards the facts of the dispute and the course of the procedure before the Court of First Instance, the judgment under 3. At the end of that procedure, the Com- appeal relates as follows: Before 1977 the mission adopted the abovementioned deci- west European polypropylene market was sion of 23 April 1986, which has the supplied almost exclusively by ten produ- following operative part: cers, one of which was Hoechst, with a market share fluctuating somewhere between 10.5 and 12.6.%. After 1977 and following the expiry of the controlling patents held by Montedison, seven new producers appeared with substantial pro- 'Article 1 duction capacity. This was not accompa- nied by a corresponding increase in demand, with the consequence that demand did not match supply, at least until 1982. More generally, for the greater part of 1977-1983, the polypropylene market (The Companies)... Hoechst AG... have was characterised by low profits or even infringed Article 85(1) of the EEC Treaty, significant losses. by participating:

3 — First Regulation implementing Articles 85 and 86 of the 2 — IV/31.149 — Polypropylene, OJ 1986 L 230, p. 1. Treaty (OJ, English Special Edition 1959-1962, p. 87.)

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(c) agreed various measures designed to facilitate the implementation of such target prices, including (principally) temporary restrictions on output, the exchange of detailed information on their deliveries, the holding of local meetings and from late 1982 a system — in the case of Hoechst, ICI, Montepo- of "account management" designed to limeri and Shell from about mid-1977 implement price rises to individual until at least November 1983 customers;

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respect of the infringement found in be concluded, according to Hoechst, that Article 1: the contested decision was vitiated by serious procedural defects, for the exam- ination of which a further review of the evidence is required.

(vi) Hoechst AG, a fine of 9 000 ECU, or 19 304 010 German marks (...)'· By its abovementioned decision of 10 March 1992, the Court of First Instance, having again heard the views of the Advocate General, rejected the request for the oral procedure to be reopened, and 4. Fourteen of the 15 companies which rejected the application in its entirety. were the addressees of the decision, includ- ing the appellant, brought an action for its annulment. At the hearing which took place from 10 to 15 December 1990, the parties presented oral argument and answered questions from the Court.

9. As a preliminary matter it should be recalled that, under Article 51 of the EEC Statute of the Court of Justice, an appeal 'shall be limited to points of law. It shall lie II — Admissibility of the appeal on the grounds of lack of competence of the Court of First Instance, a breach of proce- dure before it which adversely affects the interests of the appellant as well as the infringement of Community law by the Court of First Instance.' Moreover, the 7. In its response the Commission at the provisions of Articles 113(2) and 116(2) outset requests the Court to reject the of the Rules of Procedure of the Court of appeal as inadmissible in its entirety. In Justice preclude the appellant from chan- that connection it contends that at no point ging the subject-matter of the proceedings in its appeal does Hoechst rely on an error before the Court of First Instance in its of law by the Court of First Instance. appeal; nor may it be changed in the Conversely, the appellant is raising for the response. At any stage of the proceedings first time at the appeal stage a whole series and under Article 119 of the Rules of of facts, arguments and pleas. Those Procedure, where an appeal is clearly belated pleas go to the non-existence of inadmissible, the Court may by reasoned the Commission's Polypropylene decision order dismiss the appeal. or other serious procedural flaws affecting the procedure by which that decision was adopted. In the Commission's view, by raising those pleas, the appellant is altering the subject-matter of the dispute, in breach For an appeal to be inadmissible in its of Articles 113(2) and 116(2) of the Rules entirety it must contain no admissible of Procedure of the Court. ground of appeal. Thus, it is necessary to examine all the grounds of appeal put forward and to determine that each one of them is inadmissible. 5

10. It is in that light, too, that the objection considerations set forth in the relevant of inadmissibility raised by the Commission paragraphs of my Opinion in Hüls v must be examined. Indeed, at first sight, the Commission, 6a case whose subject-matter vague terms in which the grounds of appeal is analogous, apply to the present case and I are couched do raise a certain number of refer to them. questions concerning their admissibility: in fact, the alleged breach of the law by the Court of First Instance is not readily discernible. None the less, as to the first ground of appeal raised by Hoechst, that refers to errors of law made, in the appellant's submission, when the Court of First Instance dismissed the request for the procedure to be reopened after closure of the oral procedure. Since that plea is purely It follows that the intervention by DSM in legal in nature and is based on matters the present case could theoretically be which were before the Court of First adjudged admissible in part, to the extent Instance and on which it gave its decision, to which it supports the appellant's request it may be regarded as an autonomous that the Court of First Instance, following ground of appeal which has been validly annulment of the judgment at first instance, raised. declare the Polypropylene decision non- existent. The other claims by the intervener and the arguments which it relies on in support of other claims by the appellant cannot in any event be examined on their merits, because they are inadmissible. 11. Consequently, even on the supposition that the Court must uphold the Commis- sion's assertions (which I shall examine subsequently, together with the appellant's counter-arguments in the context of the individual discussion of each ground of appeal), it cannot be contended that the appeal should be dismissed in its entirety on the ground that it is inadmissible. However, in the present case the appellant in its reply abandoned its pleas going to non-existence of the Polypropylene deci- sion: indeed, it has reduced its claims inasmuch as it is henceforth seeking no longer a declaration that the contested decision is non-existent but its annulment. III— Admissibility of the intervention Accordingly, the intervention by DSM has thus become inadmissible, on account of there being no legitimate interest.

14. I refer to paragraphs 19 to 23 of my Opinion in Hüls v Commission. 13. Hoechst considers that the Commis- sion's Polypropylene decision, which it challenged in proceedings before the Court of First Instance, is vitiated by substantial formal defects which render it null and void. 7 On the basis of this principle, Hoechst argues that the Court of First B — The judgment appealed against Instance cannot have it both ways: either there was adequate evidence of those defects which the Court of First Instance ought to have taken into consideration in annulling the Polypropylene decision or of 15. The Court of First Instance dismissed which the Court could have taken cogni- the claims made by the applicant in its sance for the first time in the context of pleading of 2 March 1992, 8on the follow- these proceedings, or at the very least there ing grounds, set out at paragraphs 374 and were clear presumptions in favour of the 375 of the judgment appealed against: existence of procedural defects vitiating the contested decision, in which case the refu- sal by the Court of First Instance to examine those presumptions more closely, in spite of the request to that effect, was in 'It must be stated first of all that the breach of the Rules of Procedure. More abovementioned judgment does not in itself precisely, the appellant attributes to the justify the reopening of the oral procedure matters on which it relies a twofold func- in this case. Furthermore, unlike the argu- tion: first, they constitute in its view ments which it put forward in Joined Cases complete proof of the existence of substan- T-79 etc/89 (see the judgment of the Court, tial procedural defects which ought to have at paragraph 14), in this case the applicant led the Court of First Instance to declare did not, until the end of the oral procedure, the Polypropylene decision null and void; argue even by allusion that the Decision secondly, it considers that those matters was non-existent because of the alleged afforded sufficient evidence to compel the defects. It must therefore be asked whether Court of First Instance to grant its applica- the applicant has adequately explained why tion for the reopening of the oral procedure in this case, unlike Joined Cases T-79 etc./ and the adoption of fresh measures of 89, it did not raise those alleged defects organisation of procedure. The line of earlier, since they must in any event have defence followed by the Commission fol- existed prior to the commencement of lows this twofold view of the matter. proceedings. Even though the Community Courts, in an action for annulment under

the second paragraph of Article 173 of the not exist in all the authentic languages. EEC Treaty, must of their own motion That alleged defect, if true, would not in consider the issue of the existence of the itself entail the non-existence of the con- contested measure, that does not mean that tested Decision. In this case, unlike the in every action under the second paragraph PVC cases, cited above, the applicant has of Article 173 of the Treaty the possible not put forward any concrete evidence to non-existence of the contested measure suggest that any infringement of the prin- must automatically be investigated. It is ciple of the inalterability of the adopted only in so far as the parties put forward measure took place after the adoption of sufficient evidence to suggest that the the contested Decision and that the Deci- contested measure is non-existent that the sion thus lost the presumption of legality court must review that issue of its own attendant upon its appearance, to the motion. In this case the arguments put benefit of the applicant. In such a case, forward by the applicant do not provide a the mere fact that there is no duly certified sufficient basis to suggest that the Decision original does not in itself entail the non- is non-existent. In point III of its written existence of the contested measure. In this pleading of 2 March 1992 the applicant respect too, therefore, there was no reason simply asserted that there were "reasonable to reopen the oral procedure in order to grounds" to presume that the Commission carry out further measures of inquiry. had infringed certain procedural rules. The Inasmuch as the applicant's arguments alleged infringement of the language rules could not justify an application for revi- laid down in the Rules of Procedure of the sion, its suggestion that the oral procedure Commission cannot, however, entail the be reopened should not be upheld.' non-existence of the contested measure, but only its annulment, if the argument is raised at the proper time. Moreover, the applicant has not explained why the Com- mission would have made subsequent alterations to the Decision in 1986, that is to say in a normal situation entirely unlike the special circumstances of the PVC case, where the Commission's term of office was about to run out in January 1989. The C — Examination of grounds of annul- ment general presumption put forward by the applicant in this respect does not constitute a sufficient ground to justify the order by the Court of measures of inquiry after then reopening of the oral procedure.

17. The appellant requests the Court, if it deems fit, to order additional measures of inquiry in connection with the existence of formal defects in the Polypropylene deci- sion. More specifically, Hoechst considers (b) The new matters of fact raised at the that the action brought by it before the appeal level Court of First Instance was inadmissible on the ground that it was directed against a legally non-existent act. It also points out that, under a general principle of the law of procedure, which also applies within the 19. In the appellant's submission, adoption Community legal order, the courts are of the judgment appealed against was required to review, if necessary of their followed by the discovery of a whole series own motion, the admissibility of the of facts of decisive significance for the actions availed of. In Hoechst's view, that resolution of the dispute, which were obligation is also incumbent on the appel- unknown to the Court of First Instance late jurisdiction. In order to discharge that and to the parties. It is for that reason and obligation, the appellate jurisdiction has in order to secure legal protection that the the power to order measures of inquiry into appellant is raising those matters of fact for the admissibility of the action, without the first time on appeal before the Court. exceeding the limits of its powers, as laid down in the first paragraph of Article 51 of the EEC Statute of the Court of Justice.

20. However, to raise matters of fact for the first time at the appeal stage is contrary to the principles governing review by the 18. It is no longer necessary, it seems to me, appellate jurisdiction and to the provisions to reply to the appellant's submissions in of the first paragraph of Article 51 of the this regard since they are based on its EEC Statute of the Court of Justice. An reasoning in more general terms that the appeal can only be on a point of law. decision contested at first instance was Consequently, the appellant cannot prop-

23. The appellant further points out that, in addition to the lack of authentication, the Commission failed to adopt the deci- (a) Arguments of the parties sion in all the mandatory language versions provided for, although it was under an obligation to do so. As regards, in particu- lar, the adoption of the Dutch and Italian versions, the Commission, according to the 21. The appellant considers that the Court appellant, delegated authority to one of its of First Instance misdirected itself by not members. In Hoechst's view, that delega- having regard to the substantial procedural tion of authority is without legal founda- defects vitiating the Polypropylene decision tion because it is not covered by Article 27 at issue, in breach of the second and fourth of the Commission's Rules of Procedure paragraphs of Article 173 of the Treaty. which limits delegations of authority solely Hoechst argues that it raised these irregu- to preparatory and executory acts. In larities before the Court of First Instance in Hoechst's view, the adoption of a definitive its pleading of 2 March 1992. decision in certain of the mandatory lan- guages is not legally permissible. It follows that the fact that, when the Polypropylene decision was adopted, the Italian and Dutch versions had not been drawn up, amounts to a substantial procedural defect 22. First, the appellant maintains that there which, the appellant maintains, ought to is no original of the contested decision have led to the annulment of that decision.

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27. With regard to the absence of an of the decision in Italian and Dutch ex post authenticated original, the Commission facto, the Commission observes that this is agrees with the reasoning of the Court of not proven by the matters relied on by First Instance (paragraph 375 of the judg- Hoechst. Nor, in the Commission's view, ment appealed against), according to which has it been established that the content of the irregular absence of the original is not the contested decision was altered ex post sufficient in itself to render the act unlaw- facto; accordingly, the text notified to ful. In the Commission's view, it is also Hoechst did not differ from the one initially necessary for the party raising this plea to adopted. As regards more specifically what provide sufficient evidence in support of the the appellant described as flagrant altera- suggestion that the act was unlawfully tions to the German text, the Commission amended after its adoption. It will only be observes that, apart from the fact that they if sufficient evidence to this effect is are not proven, submissions are made on adduced that the presumption of legality them for the first time at the appeal stage of the act will be rebutted and that the and may therefore not be taken into failure of authentication will have legal consideration. consequences. 12 According to the defen- dant, the same reasoning was followed in the PVC judgments of the Court of First Instance 1 3 and of t h e Court. 14 In any event, the Commission points out that the plea based on infringement of an essential procedural requirement constituted by non- observance of Article 12 of the Commis- sion's Rules of Procedure was raised out- (b) My reply to the abovementioned argu- side the time -limits, after closure of the ments oral procedure, and that it was proper for the Court of First Instance not to uphold it.

30. I would refer on this point to my ated by substantial procedural defects. It analysis at paragraphs 26, 27 and 30 of cannot be inferred from the judgment my Opinion in Hüls v Commission. It appealed against that the Court of First follows from this analysis that, even on Instance had before it evidence of such a points of law reviewable of the Court's own nature and significance or, a fortiori, that it motion, review by the appellate jurisdiction misappraised such evidence. Moreover, the is limited, on the one hand, to examining appellant maintains that it made submis- whether the lower court correctly classified sions at first instance, chiefly in its pleading its findings of fact under the appropriate of 2 March 1992, concerning the relevant legal rule and, where such a request was procedural defects of the decision at issue, made in the appeal, to verify whether which the Court of First Instance erro- relevant factual submissions were properly neously declined to appraise. made before the lower court and that court failed to examine them. Accordingly, the appellant's other factual and legal argu- ments, whereby it seeks an order for further measures of inquiry in order to ascertain the existence of formal defects in the 32. To the extent to which Hoechst submits Commission's Polypropylene decision and that there was a failure to examine a in which, in particular, it endeavours to substantive plea and distortion of written supplement its pleading of 2 March 1992, evidence, the appeal plea in that regard is cannot be examined in these appeal pro- admissible. As to whether it is well foun- ceedings. ded, the following observations should be made: in none of its pleadings in the proceedings at first instance 15 does the appellant formulate in clear terms a claim for annulment of the contested decision on the ground of substantial defects, nor is reliance placed on matters from which such irregularities may be clearly inferred. With particular regard to the pleading of 2 March 1992, it should be observed that it is merely making suppositions as to the (ii) The existence of proven formal defects existence of defects rendering the decision in the contested decision non-existent and seeking reopening of the oral procedure and not the submission of a plea of annulment. Yet even if that pleading were to be interpreted as containing, irre- spective of the submissions going to non- existence, factual evidence which the lower

16 — The decisive matter raised by the appellant at first instance concerns not the existence or otherwise of the contested decision but the likely existence of the formal defects of the absence of the requisite signatures, the ex post facto alteration of the content of the decision and the infringe- ment of the linguistic regime. In fact, for the courts what legal classification the parties attribute to the facts on (3) Possible existence of substantial proce- which they rely is not important; what is important are

Under Article 48(2) of the Rules of Procedure of the Court ments, even if the matters before the Court of First Instance 'no new plea in law may be introduced in the course of the proceedings unless it is based on matters of law or fact which come to light in the course of the procedure.' Irrespective of the question whether that 18 —Moreover, of the procedural defects relied on, the non- derogation applies also in cases where the oral procedure existence of an authenticated original of the Commission's has been closed, it does not seem to me that the matters decision, under Article 12 of its Rules of Procedure, is the raised by Hoechst in its pleading display the abovemen- most decisive. This defect subsumes within it the other tioned characteristics such as to justify late submission of irregularities relied on by the appellant (see in this regard

p rocedure.' This reasoning is not in my view correct because knowledge of these procedural defects, even if dure was not sufficiently demonstrated in law it was not only in outline, predates the disclosures made at the possible to infer with any certainty, first, that the decision hearing before the Court of First Instance in the PVC cases. notified was altered after its adoption by the Commission, Consequently, those defects ought to have been raised, that the Commission did not adopt the decision in all the even if only in summary form, at the time of the languages provided for by the Rules of Procedure and, originating application or, in any event, before closure of finally, that there was any substantial procedural defect in

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35. The appellant maintains that, in its the Polypropylene decision was adopted pleading of 2 March 1992, it requested the lawfully. Court of First Instance, on the one hand, to reopen the oral procedure under Arti- cles 62 and 64 of its Rules of Procedure and, on the other, to adopt measures of organisation of procedure under Arti- cles 65 and 66 of those Rules. It also 36. The appellant also maintains that the considers that, contrary to the Commis- Court of First Instance did not reject the sion's assertions, the Court of First Instance pleas in its pleading on the ground that they does not enjoy unlimited discretionary were formulated out of time but rather power in responding to such applications examined them in detail. None the less, in and that that response must be examined in Hoechst's submission, although it was the context of the review conducted by the under an obligation to do so, the Court of appellate jurisdiction. In order to appraise First Instance neglected to examine them the legality of the judgment at first not only in regard to non-existence but also instance, it is essential, in Hoechst's view, in regard to infringement of essential for- to appraise the objective pursued by the mal requirements. In any event, again in application for reopening of the procedure. Hoechst's submission, the Commission Where that application seeks the adoption cannot be heard to say that the pleading of measures of inquiry with a view to was submitted out of time. In fact, for the making new findings of such a nature as to Commission to make that allegation is have a decisive effect, in which case those tantamount to its challenging the accuracy matters will have to be ventilated in fresh in law of the judgment appealed against, pleadings and hearings, the possibility open although it did not appeal and, therefore, to the Court of First Instance is trans- that allegation is inadmissible.

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The Commission states that, as early as the afternoon of 22 November 1991, one of its officials had acknowledged in the context of the proce- dure leading to the hearing in the PVC 37. For its part, the Commission points out cases that the procedure laid down in as a preliminary matter that the appellant is Article 12 of the Commission's Rules of wrong to maintain that the Court of First Procedure had fallen into disuse. From that Instance was obliged to order reopening of day on, then, according to the contentions the procedure because to do so was not on behalf of the respondent, Hoechst knew indispensable in the present case. The of the facts on which it relied in its request request for reopening of the oral procedure for the reopening of the oral procedure. by the appellant was not, it is the Com- The Commission adds that the appellant is mission's contention, based on matters of wrong to take the view that the Court of significance in achieving a resolution of the First Instance indirectly acknowledged that dispute and was, moreover, made out of the pleading had been submitted within the

they affect. As regards the matters pre- sented by the appellant as new facts, the Commission points out that, as such facts 38. The Commission further contends that are connected with the PVC judgment of the Court of First Instance rightly held that the Court of First Instance, they cannot be relied on in support of an application for 20 — The Commission refers to the order of 26 March 1992 in Case T-4/89 Rev. BASF v Commission [1992] ECR II-1591, and to the judgment in Case C-403/85 Rev. 19 — See paragraph 14 above. Ferrandi v Commission [1991] ECR I-1215.

Hoechst had not submitted with the request First Instance to decide whether reopening in question the requisite sufficient evidence of the procedure was necessary or not. 24 for its application for the reopening of the procedure to be acceded to. The position taken by the Court of First Instance con- tinues to be correct even if the request of 39. As far as the interpretation of the 2 March 1992 is interpreted as meaning provisions of Article 64(3)(d) of the Rules that it is alleging formal invalidity and not of Procedure is concerned, the Commission that the Polypropylene decision in question observes that there are no predetermined is non-existent.

Conver- Commission's Rules of Procedure. It had to sely, the respondent relies on the provisions bring forward concrete evidence to show of Article 173 of the Treaty, the first that the polypropylene decision had under- paragraph of Article 19 of the EEC Statute gone alterations as to its content after its of the Court of Justice and Article 44(1)(c) adoption. That interpretation which was and (e) and Article 48(1) and (2) of the followed by the Court of First Instance in Rules of Procedure of the Court of First the judgment under appeal is supported, Instance from which it derives the principle again in the Commission's view, by the of the obligation on the part of the judgment in Lestelle v Commission 22 and applicant party to present his applications the Court's PVC judgment. 23 In any event, within the time-limits, together with evi- the possible formal invalidity of the Poly- dence in support. Measures of organisation propylene decision ought, in accordance of procedure are not intended to remedy with Article 48(2) of the Rules of Proce- omissions of the parties as regards the dure of the Court, to have been submitted presentation of their arguments within the in the originating application and not in time-limits and in accordance with legal any event after the conclusion of the oral requirements. In any event, owing precisely to its exceptional nature, any application

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(b) My reply on the above issues Polypropylene decision. In this connection I would refer to the analysis at paragraphs 47 to 79 of my Opinion in Hüls v 40. In light of the foregoing, the question Commission from which it is apparent that arises whether the Court of First Instance the solution which the Court of First was legally entitled to reject the application Instance opted for was correct, albeit on to reopen the procedure, a question directly different grounds; accordingly, the pleas in linked with the likely existence of substan- support of the contrary viewpoint must be tial procedural defects in the Commission's rejected.

Conclusion

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

(1) Dismiss in its entirety the appeal brought by Hoechst AG;