C-234/92
ECLI:EU:C:1997:361
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SHELL V COMMISSION
OPINION OF ADVOCATE GENERAL COSMAS delivered on 15 July 1997 *
In this case the Court of Justice is called fluctuating between approximately 10.7 upon to deliver judgment on the appeal of and 11.7%. After 1977 and following the Shell International Chemical Company Ltd expiry of the controlling patents held by (hereinafter 'Shell') brought pursuant to M o n t e d i s o n , seven new producers Article 49 of the EEC Statute of the Court appeared with substantial production capa- of Justice against the judgment of the Court city. This was not accompanied by a of First Instance of 10 March 1992. 1The corresponding increase in demand, with judgment under appeal dismissed the action the consequence that demand did not brought by the appellant company pur- match supply, at least until 1982. More suant to Article 173 of the EEC Treaty generally, for the greater part of 1977- (hereinafter 'the Treaty') against the Com- 1983, the polypropylene market was char- mission's decision of 23 April 1986 (here- acterized by low profits or even significant inafter the 'Polypropylene decision'). 2 That losses. decision concerned the application of Arti- cle 85 of the Treaty in the polypropylene production sector.
2. On 13 and 14 October 1983 Commis- sion officials, acting under the powers conferred by Article 14(3) of Council Reg- I — Facts and course of the procedure ulation No 17 of 6 February 1962 3 (here- before the Court of First Instance inafter 'Regulation No 17'), carried out simultaneous investigations in a number of undertakings operating in the polypro- pylene production sector. Following those investigations, the Commission addressed 1. As regards the facts of the dispute and requests for information, under Article 11 the course of the procedure before the of Regulation No 17, to the above compa- Court of First Instance, the judgment under nies, and also to other related undertakings. appeal relates as follows: Before 1977 the From the evidence obtained during the west European polypropylene market was course of those investigations and from supplied almost exclusively by ten produ- the requests for information, the Commis- cers, one of which (and also one of 'the big sion concluded that, between 1977 and four') was Shell, with a market share 1983, certain polypropylene producers, including Shell, had been acting in contra- * Original language: Greek. 1 — Case T-11/89 Shell v Commission [1992] ECR II-757. 2 — IV/31.149 — Polypropylene, OJ 1986 L 230, p. 1. 3 — OJ, English Special Edition 1959-1962, p. 87.
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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.
(a) contacted each other and met regularly (from the beginning of 1981, twice each month) in a series of secret meet- ings so as to discuss and determine their commercial policies; 3. At the end of that procedure, the Com- mission adopted the abovementioned deci- sion of 23 April 1986, which has the following operative part:
(b) set "target" (or minimum) prices from time to time for the sale of the product in each Member State of the EEC;
'Article 1
(c) agreed various measures designed to facilitate the implementation of such target prices, including (principally) temporary restrictions on output, the (The Companies)... Shell International Che- exchange of detailed information on mical Co. Ltd... have infringed Arti- their deliveries, the holding of local cle 85(1) of the EEC Treaty, by participat- meetings and from late 1982 a system ing:... in the case of Hoechst, ICI, Mon- of "account management" designed to tepolimeri and Shell from about mid-1977 implement price rises to individual until at least November 1983... customers;
(d) i n t r o d u c e d s i m u l t a n e o u s price in an agreement and concerted practice increases implementing the said tar- originating in mid-1977 by which the gets;
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(e) shared the market by allocating to each 4. Fourteen of the fifteen companies which producer an annual sales target or were the addressees of the Commission "quota" (1979, 1980 and for at least decision, including the appellant, brought part of 1983) or in default of a an action for its annulment. At the hearing definitive agreement covering the before the Court of First Instance, which whole year by requiring producers to took place from 10 to 15 December 1990, limit their sales in each month by the parties presented oral argument and reference to some previous period answered questions from the Court. (1981, 1982).
5. By letter lodged at the Registry of the Court of First Instance on 6 March 1992, when the written and oral procedure had, as stated above, been completed, but never- theless before judgment had been delivered, Shell 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 Article 3 the hearing and delivery of the judgment of the Court of First Instance in the related cases BASF and Others v Commission (hereinafter 'the "PVC" cases'). 4 Accord- ing to Shell, it can be concluded from that The following fines are hereby imposed on evidence that the contested decision was the undertakings named herein in respect of vitiated by serious procedural defects and the infringement found in Article 1 : was therefore non-existent; there were also significant grounds to suggest that the decision in question was vitiated by other substantial procedural defects. For those reasons, Shell requested the Court of First Instance to reopen the oral procedure and order measures of inquiry.
By its abovementioned decision of 10 March 1992, the Court of First
4 — Joined Cases T-79/89, T-84/89, T-85/89, T-86/89, T-89/89, (xiii) Shell International Chemical Co. Ltd, T-91/89, T-92/89, T-94/89, T-96/89, T-98/89, T-102/89 and a fine of 9 000 000 ECU, or £ 5 803 T-104/89 BASF and Others v Commission [1992] ECR 11-315. The hearing in those cases was completed on 173... .' 10 December 1991.
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Instance, after hearing the views of the The Commission asks the Court to dismiss Advocate General once again, rejected the appeal and to order the appellant to pay those requests. At the same time it partially the costs. upheld the application and reduced the fines imposed.
DSM NV intervened in the appeal in support of Shell. 6. Shell lodged an appeal against that decision, requesting the Court to:
1. set aside the decision under appeal, I I— Admissibility of the intervention particularly in so far as the Court of First Instance refused to reopen the oral proce- dure and to order measures of enquiry; and 7. As regards the admissibility of DSM's intervention in this case, I would make exactly the same points as I did in my Opinion in the related Case C-199/92 P Hüls v Commission. 5 — either declare the Commission's deci- sion non-existent, or annul the said decision for lack of competence or infringement of essential procedural requirements ;
III — Examination óf the grounds of appeal
— or remit the case to the Court of First Instance.
A — Arguments of the parties
2. order any further measures of enquiry which the Court deems appropriate for a 8. According to the appellant, the judgment decision in the case. under appeal, in so far as the arguments put forward in its request of 6 March 1992 were examined and rejected, is wrong in
5 — See points 10 to 16 of my Opinion of today's date in Case 3. order the Commission to pay the costs. C-199/92 P.
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law. Shell considers that it had put forward (3) it committed an infringement of Com- compelling evidence which no court could munity law by rejecting that request properly have ignored. That evidence refer- and by refusing to declare the Poly- red to the lack of authentication of the propylene decision non-existent. Polypropylene decision pursuant to Arti- cle 12 of the Commission's Rules of Proce- dure, from which it followed that the contested decision was legally non-existent. Consequently it was not necessary to produce further evidence that the text of 9. In the alternative, the appellant main- that decision had been amended at a date tains that in its request it had produced subsequent to its adoption. At all events, evidence suggesting that the contested deci- however, Shell relies on the text of the sion was probably vitiated by substantial Polypropylene decision notified to it, which procedural defects. By refusing to take the it has produced for the Court, as evidence relevant presumptive evidence into account of those alterations. It further points out and order measures of enquiry, the Court of that it could not produce more complete First Instance infringed the rules of Com- evidence precisely because the Court of munity law (both substantive and proce- First Instance refused to order the necessary dural). measures of organization of procedure in order to obtain such evidence. The appel- lant concludes that the Court of First Instance should have ordered the reopening of the oral procedure and found the contested decision to be non-existent, ulti- 10. Lastly, the appellant submits that the mately dismissing the main application as Court of Justice may, of its own motion, inadmissible. Since it failed so to act, the declare the contested decision non-existent, judgment should be set aside on the follow- taking any appropriate measures of orga- ing grounds: nization for that purpose. According to Shell, the Court has a duty to do so in order to protect the public interest.
(1) the Court of First Instance lacked 11. The arguments put forward by the competence to make the final orders Commission to counter the appellant's 1-4 in the decision under appeal; claims are identical to those relied on in its response in the related case ICI v Commission. A detailed presentation of the Commission's arguments is given in my Opinion in that case to which I would refer the Court in order to avoid repeti- tion. 6 (2) it committed a breach of procedure by rejecting without proper reasoning its 6 — See point 19 et seq. of my Opinion of today's date in Case request of 6 March 1992; C-200/92 P.
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B — My reply to the above arguments to make the final orders in the decision under appeal.
(a) Limits of appellate review and powers of the Court hearing the appeal (c) Failure by the Court of First Instance to declare the Polypropylene decision non- existent 12. The claim in the appeal to the effect that the Court of Justice may, or should, order any appropriate measures of organi- 14. The reasoning in the judgment under zation in order to marshall evidence relat- appeal to the effect that the defects put ing to the non-existence of the contested forward in the request of 6 March 1992 decision is inadmissible before the Court of were not sufficient to warrant the Polypro- Justice since it exceeds the limits of appel- pylene decision being deemed non-existent late review. On that point I would refer to is correct. In fact, in accordance with the the relevant points in my Opinion in the view taken by the Court of Justice in the related case Hüls v Commission. 7 PVC cases, 9 which I consider should be followed in the present case, failure to comply with the procedure laid down in Article 12 of the Commission's Rules of Shell's reference to evidence which is not Procedure, if ultimately proved, does not contained in the judgment under appeal is render non-existent the decision thereby inadmissible and it does not claim that affected, but constitutes a ground for corresponding arguments of facts were put annulment. forward, admissibly, before the Court hear- ing the substance of the case. 8 15. Even if, to some extent, the mistaken legal characterization by the applicant of the procedural defects on which the latter relied in its request before the Court of First (b) Competence of the Court of First Instance was partly applicable, 10 the judg- Instance ment of the Court of First Instance cannot
9 — Case C-137/92 P Commission v BASF and Others [1994] 13. This ground of appeal is inadmissible ECR I-2555. See also point 20 et seq. of my Opinion of since it was put forward only vaguely. The today's date in Case C-199/92 P Hüls v Commission. 10 — The relevant evidence put forward by the applicant before appellant does not put forward at any point the Court of First Instance does not consist in the in its appeal the factual and legal argu- probability that the contested decision was non-existent but in the likelihood of procedural defects, viz. the failure ments on which it bases its view that the to authenticate the validity of the decision, subsequent alteration of its content and infringement of the language Court of First Instance lacked competence rules. In other words the legal characterization which the parties ascribe to the facts is not important for the Court, but rather the facts themselves on which they rely. In particular, where those facts, if shown, may not render the decision non-existent but nevertheless constitute infringe- 7 — See points 26 and 27. ment of an essential procedural requirement in the 8 — See points 19 and 20 of my Opinion of today's date in Case adoption of the decision at issue, they must be examined of the Court's own motion, which implies their invalidity. C-227/92 P Hoechst v Commission.
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be set aside. That is because it does not provisions of Articles 48, 62 and 64 of the appear from the judgment under appeal Rules of Procedure of the Court of First that that Court, responsible for deciding Instance, required the latter to order the the substantive issues, found there to be reopening of the oral procedure on the sole evidence showing such defects. Conse- basis of the evidence relied upon in the quently the appellant's arguments to that letter of 6 March 1992 by Shell, is a effect, together with the intervention as a question of law concerning application to whole, are unfounded. (On this point I the facts of the applicable rules of law, and would refer to the analysis contained in hence can be reviewed on appeal. 11 point 31 et seq. of my Opinion in Hoechst v Commission.)
(d) Possibility of the existence of substantial procedural defects in the contested decision
16. The appellant maintains that, on the 18. Furthermore, I consider that the evidence it produced with its letter of grounds on which the Court of First 6 March 1992, there were sufficient indi- Instance rejected the appellant's request cations to suggest that the Polypropylene that the oral procedure be reopened are decision was adopted in infringement of an wrong in law. 12 However the solution essential procedural requirement; conse- reached at first instance is correct, regard- quently the Court of First Instance erred, less of the content of the particular reason- since it refused to reopen the oral proce- ing in the contested decision. Shell's request dure and to order further measures of did not fulfil the conditions required by law enquiry relating to the existence or other- in order to be upheld by the Court of First wise of those procedural defects. Instance, nor was that Court under any obligation under the rules relating to judi- cial review of the Court's own motion 13 to reopen the oral procedure. Consequently those grounds of appeal must be dismissed.
17. I would point out, first of all, that the 11 — See point 9 of my Opinion in Hüls v Commission. issue raised by the appellant is legal in 12 — Inasmuch as the grounds of the judgment under appeal are nature and is consequently admissible at exactly the same as those set out in paragraph 401 of the judgment in Case T-13/89 ICI v Commission [1992] ECR the stage of the appeal, contrary to the II-1021, Iconsider it useful, to avoid repetition, to refer on Commission's contention. More precisely, the question of the legality of the reasoning in question, to point 26 of my Opinion in Case C-200/92 P ICI v the question whether the correct interpre- Commission. tation and application of the rules on the 13 — See the analysis contained in points 57 to 79 of my Opinion in Hüls v Commission to which I would refer on burden of proof, in conjunction with the this matter.
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IV — Conclusion
19. In the light of all the foregoing, I propose that the Court should:
(1) Dismiss the appeal of Shell International Chemical Company Ltd in its entirety;
(2) Dismiss the intervention;
(3) Order the intervener to bear its own costs;
(4) Order the appellant to pay the remaining costs.
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