C-245/92

I — Facts and course of the procedure before the Court of First Instance 2. On 13 and 14 October 1983 Commis- sion officials, acting under the powers conferred by Article 14(3) of Council Reg- ulation No 17 of 6 February 1962 3 (here- inafter 'Regulation No 17') carried out simultaneous investigations in a number 1. As regards the facts of the dispute and of undertakings operating in the polypro- the course of the procedure before the pylene production sector. Following those Court of First Instance, the judgment under investigations, the Commission addressed appeal relates as follows: Before 1977 the requests for information, under Article 11 West-European polypropylene market was of Regulation No 17, to the above compa- nies, and also to other related undertakings. From the evidence obtained during the * Original language: Greek. 1 — Case T-15/89 Chemie Linz v Commission [1992] ECR II-1275. 2 — IV/31.149 — Polypropylene, OJ 1986 L 230, p. 1. 3 — OJ, English Special Edition 1959-1962, p. 87.

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course of those investigations the Commis- ber 1983... in an agreement and concerted sion concluded that, between 1977 and practice originating in mid-1977 by which 1983, certain polypropylene producers, the producers supplying polypropylene in including Chemie Linz, had been acting in the territory of the EEC: contravention of Article 85 of the Treaty. On 30 April 1984 the Commission decided to 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.

CHEMIE LINZ V COMMISSION

(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 decision, includ- gets; 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. (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 5. By separate document lodged at the whole year by requiring producers to Registry of the Court of First Instance on limit their sales in each month by 28 February 1992, when the written and reference to some previous period oral procedure had, as stated above, been (1981, 1982). completed, but nevertheless before judg- ment had been delivered, Chemie Linz 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 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 From that evidence it can be concluded, according to Article 3 Chemie Linz, that the contested decision was vitiated by serious procedural defects in the examination of which a further review of the evidence is required. The following fines are hereby imposed on the undertakings named herein in respect of the infringement found in Article 1 :

6. Chemie Linz seeks on appeal the setting appeal as inadmissible in its entirety. In that aside of that decision, and a declaration connection it submits that nowhere in its that it is non-existent or null and void or, in appeal does the appellant plead any error in the alternative, referral of the case back to law by the Court of First instance but the Court of First Instance. At the same rather raises, for the first time at the time it sought an order that the respondent appellate stage, a series of facts, arguments should pay the costs. In its reply of 14 April and pleas and thus, in its submissions, is 1992 the appellant stated that it was changing the subject-matter of the dispute abandoning the grounds of its appeal before the Court of First Instance in relating to non-existence of the Polypropy- contravention of the provisions of Arti- lene decision, but was maintaining the cle 113(2) and Article 116(2) of the Rules grounds relating to invalidity of that deci- of Procedure of the Court of Justice. For its sion. part the appellant maintains that the above submissions are ill-founded and cannot lead to the rejection of the appeal as inadmissible in its entirety.

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

For an appeal to be inadmissible in its considerations apply in principle as those entirety it must contain no admissible set forth in the relevant paragraphs of my ground of appeal. Thus, it is necessary to Opinion in Hüls, 6a case analogous as to its examine all the grounds of appeal put subject-matter, to which I refer. forward and to determine that each one of them lacks admissibility. 5Viewed in that light, the Commission's objection of inad- missibility is ineffectual inasmuch as, amongst the grounds of appeal raised by Chemie Linz, at least one is admissible. That is the ground of appeal going to presumed errors of law alleged to have been committed by the Court of First Instance in rejecting the request for reopen- It follows from that analysis that the ing of the procedure after closure of the intervention by DSM in the present case oral procedure. Consequently, even if the could theoretically be adjudged to be Commission's contentions were fully admissible in part, inasmuch as the inter- upheld (a matter to be examined below, vener supports the appellant in requesting together with the appellant's counter-argu- the Court to set aside the judgment of the ments, in the context of the individual lower court and declare the Polypropylene discussion of each ground of appeal), that decision non-existent. The other claims could not result in the dismissal of the made by the intervener and the arguments appeal as inadmissible in its entirety. which it relies on in order to support other pleas by the appellant do not call in any event for an examination as to whether they are well founded since they are inadmissible.

thus become inadmissible on account of of the EEC Treaty the possibility that the there being no legal interest. 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- nity Court must review that issue of its own motion. In the present case, the arguments put forward by the applicant do not provide a sufficient basis to suggest that IV — The judgment appealed against the Decision is non-existent. The applicant argues that it follows from the statements made by the Commission's agents at the hearing in Joined Cases T-79/89, T-84/89, T-85/89, T-86/89, T-89/89, T-91/89, 11. The Court of-First Instance rejected the T-92/89, T-94/89, T-96/89, T-98/89, pleas submitted in the applicant's pleading T-102/89 and T-104/89 that an original of 28 February 1992 on the basis of the duly signed by the Commission is also following reasoning contained in para- lacking in this case. That allegation, if true, graph 395 of the judgment appealed would not in itself entail the non-existence against: of the Decision. The applicant has not put forward anything to explain 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 cases, 'It must be stated first of all that the where the Commission's term of office was judgment of 27 February 1992 in the about to run out in January 1989. It is not PVC cases does not in itself justify the sufficient in that regard simply to reserve reopening of the oral procedure in the the right to make further pleas. In those present case. Furthermore, in the present circumstances there is nothing to suggest case the applicant did not once argue, even that the principle of the inalterability of the by allusion, in the oral procedure that the adopted measure was infringed after the Decision was non-existent because of adoption of the contested Decision and that defects held in that judgment to have the Decision has therefore lost, to the existed. The question to be examined, applicant's benefit, the presumption of therefore, is whether the applicant has legality arising from its appearance. The adequately explained why it did not plead mere fact that there is no duly certified the existence of those alleged defects earlier, original does not in itself entail the non- since they must in any event have existed existence of the contested measure. There is before the action was brought. Even though therefore no reason to reopen the oral the Community Court, in an action for procedure in order to carry out further annulment under the second paragraph of measures of inquiry. Since the applicant's Article 173 of the EEC Treaty, must of its arguments could not justify an application own motion consider the issue of the for revision, its suggestion that the oral existence of the contested measure, that procedure be reopened should not be does not mean that in every action brought upheld.' under the second paragraph of Article 173

14. Moreover, according to the appellant, the Court of First Instance did not comply with its obligation to marshall the eviden- 13. The first ground of appeal is identical tiary material necessary for the correct in terms to that of the appellants in Hüls solution of the dispute pending before it. and ICL The arguments in that connection That obligation flows, the appellant sub- are set out in extenso in my Opinion in mits, from Article 64 of the Rules of those cases to the relevant sections of which Procedure of the Court of First Instance in I refer. 7 For the sake of completeness the conjunction with Article 164 of the Treaty. following matters should also be adverted The Court of First Instance was, in its to: the appellant considers that the Court submission, not justified in declining to of First Instance erred in rejecting its grant the request made by Chemie Linz in request for reopening of the oral procedure. its pleading of 28 February 1992 on the The appellant maintains that its request ground that it did not adduce 'sufficient ought to have been acceded to because, in evidence' of the flaws alleged to be con- tained in the contested decision. The mat- ters of fact on which the appellant's request 7 — See paragraphs 40 to 42 of my Opinion in Case C-199/92 P Hüls v Commission and paragraphs 9 to 18 of my Opinion in Case C-200/92 P ICI v Commission delivered on the same date. 8 — See footnote 4 above.

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15. In sum, the appellant maintains that, whenever it subsequently becomes appar- ent that the contested decision is vitiated by a defect which renders it a nullity, the Court of First Instance is required to reopen the procedure and to conduct further measures of inquiry until the matter is fully 17. The appellant further maintains that it elucidated. It further emphasises that it was is entitled to adduce certain factual matters not represented at the hearing in the PVC for the first time at the appeal stage in case on 10 December 1991. Consequently, support of its submissions. Accordingly, it it first became aware of the relevant relies on the observations of the Commis- statements by the Commission representa- sion in the LdPE cases 10 of which it learnt tives only after delivery of the judgment of on 10 April 1992 and, secondly, on the the Court of First Instance in that case, appeal brought on 29 April 1992 by the namely on 27 February 1992. Further- Commission against the PVC judgments of more, the Court of First Instance made no the Court of First Instance. 1 1The appellant finding in the judgment appealed against draws certain conclusions from those docu- that the appellant's pleading of 28 Febru- ments as to the manner of conduct of the ary 1992 had been filed out of time. Commission, in general, which, in its view, Accordingly, the Court of Justice was not reinforce the suspicions that the polypro- entitled, Chemie Linz maintains, to review pylene decision was adopted in breach of in the appeal proceedings whether or not essential formal requirements.

According to Chemie 10 — Judgment in Joined Cases T-80/89, T-81/89, T-83/89, T-87/89, T-88/89, T-90/89, T-93/89, T-95/89, T-97/89, 9 — Judgments in Case T-32/91 Solvay v Commission [1995] T-99/89, T-100/89, T-101/89, T-103/89, T-105/89, ECR II-1825 and Case T-36/91 ICI v Commission [1995] T-107/89 and T-112/89 BASF and Others v Commission ECR II-1847, and Case T-37/91 ICI v Commission [1995] [1995] ECR II-729. ECR II-1901. 11 — See footnote 4 above.

authority to draw up those decisions in the mission did not follow the procedural rules other languages. provided for by Community law in order to ensure the lawful exercise of its compe- tences. Consequently, the Commission is wrong to assert that failure to observe essential procedural requirements in accor- dance with Article 12 of its internal rules of procedure does not render it open to 18. Chemie Linz considers that the Com- annulment, and that an alteration in the mission followed that same procedure in content of the decision after its adoption adopting the polypropylene decision. At renders it null and void only if the altera- least that is the inference to be drawn, in tion is substantial and does not accord with the appellant's submission, from both the the will of the author of the act. That view matters set out above and a detailed read- of the matter expressed by the Commission ing of the decision notified to it 12 and from runs directly counter to developments in the delay in notification. 13 For the avoid- the Court's case-law, as illustrated by the ance of doubt the appellant further requests PVC 15 and 'Laying hens' 16 judgments. the Court to order the Commission to produce the original of the polypropylene decision in order for it to be determined whether it is vitiated by the same formal defects which led to the annulment of the Commission's PVC decision whose content was analogous. 14 In any event, Chemie Linz maintains that the following matters are apparent from both its pleading of 28 February 1992 and the evidence which (b) Respondent's contentions it adduced for the first time in the appeal proceedings: first, on adoption of the polypropylene decision the Commission had the text of the decision available to it in only three of the five official language versions; secondly, the procedure laid down 19. In the present case, in replying to the in Article 12 of the Commission's internal appellant's submissions, the Commission rules of procedure was not followed; avails itself of precisely the same arguments thirdly, the content of the decision was as it used to answer the corresponding amended after its adoption. Finally, Chemie grounds of appeal put forward in the Linz stresses that the defects in question connected Hüls and Hoechst cases. Those must entail the nullity of the decision at arguments are extensively canvassed in my issue. In adopting that decision the Com- Opinion in those cases to which, for the avoidance of repetition, I refer. 17 12 — The appellant highlights places in the decision notified which appear in different typesetting from the rest of the text and considers it likely that the original of the decision 15 — Judgment in Case C-137/92 P Commission v BASF and underwent changes after its adoption. Others [1994] ECR I-2555, see below paragraph 20 et seq. 13 — According to the appellant the fact that the decision was 16 — Judgment in Case 131/86 United Kingdom v Council notified to it more than one month after its adoption is [1988] ECR 905. sufficient to make it likely that its content underwent 17 — See my Opinions already cited of the same date in Case changes. C-199/92 P Hüls (paragraphs 29 and 43 to 45) and Case 14 — See footnote 4 above. C-227/92 P Hoechst (paragraphs 26 to 28 and 36 to 38).

20. I shall begin my analysis with an appraisal of the second ground of appeal. As the respondent correctly observes that ground gives rise to major doubts as to its admissibility. 21. But the ground of appeal not directed against the judgment appealed against but against the Commission's contested deci- sion must also be rejected as inadmissible in its entirety because it goes to the appraisal At the outset it should be emphasised that, of matters not apparent from the judgment inasmuch as the appellant relies on evi- appealed against and it is not maintained dence for the first time at the appeal stage, that corresponding factual submissions that evidence lies outside the purview of were made, in admissible form, at first appellate review. Appellate review was instance. introduced into Community procedural law solely for the appraisal of the correct- ness in law of the judgment of the court trying the case on its merits on the basis of the matters of fact and law before the Court of First Instance on which it reached its decision. It is therefore inconceivable for 22. Nor can the fact that the formal defects there to be an error in the judgment in the decision at issue, in respect of which appealed against which is due to a failure submissions are made by the appellant, are to appraise facts unknown to the court amongst the issues to be reviewed by the trying the case on its merits either because Community judicature of its own motion they were not contained in the case-file or remedy the inadmissibility of the ground of came to light after delivery of the judgment appeal under examination. It is not con- appealed against. Community procedural tended on behalf of the appellant that the law has provided a means, that of an Court of First Instance erred in law because application for revision, whereby a party it did not of its own motion review those may bring to the attention of the court which adjudicated on a matter a fact 'of such a nature as to be a decisive factor, and 18 — Article 41 of the EEC Statute of the Court of Justice which, when the judgment was given, was applicable by analogy to proceedings before the Court of First Instance. unknown to the Court and to the party 19 — See paragraph 17 above.

22 — It is otiose at this juncture to examine the appellant's submissions going to non-existence of the decision at issue. As I have already stated, Chemie Linz abandoned those submissions in its reply. Moreover, the holding at first instance that the supposed formal defects in the polypro- pylene decision, even were they found to subsist, do not render the act non-existent is correct as to its conclusion. As the Court of Justice subsequently held, in the PVC (b) The first ground of appeal judgments, those defects can entail annulment of the act thus vitiated but not a finding that that act is non-existent. On that point I refer to the analysis of the Court's PVC judgment, as set out at paragraphs 20 to 24 of my Opinion in Hüls. For the sake of completeness, none the less, I consider it appropriate to point out that the reasoning of the judgment appealed against is wrong in point of law. A non-existent 23. In the first ground of appeal it is act does not enjoy the presumption of legality. A legal finding as to the existence of an act logically precedes a submitted that, by declining to reopen the finding as to whether a presumption of legality has arisen, inasmuch as the existence of an act is a necessary oral procedure and order supplementary precondition of any presumption of legality. The view of measures of inquiry, the Court of First the matter taken by the Court of First Instance, namely that, in order to demonstrate the non-existence of an act, Instance infringed a series of procedural evidence must be adduced capable of rebutting 'the presumption of legality enjoyed by the act', is devoid of rules. An extensive analysis of that ground logic and thus wrong at law (see paragraph 36 of my of appeal is contained in my Opinion in Opinion in Hüls). Furthermore, in my view, the proper exercise of judicial Hüls to which I also refer. 21 review requires an examination as to whether the supposed formal defects alleged to be contained in the polypropylene decision constitute an infringement of an essential proce- dural requirement, irrespective of their legal classification by the parties. Where a party purports to adduce evidence 20 — Nevertheless, the ground of appeal going to the use by the of the non-existence of the act in question, the Court of Court of First Instance of the powers available to it to First Instance is not bound by the legal classification given review of its own motion observance of essential formal to that evidence by the party. It is the task of the court, in requirements by the contested decision must, even in those seeking the true interpretation of the pleadings before it for terms, be rejected as unfounded. On that point I refer to judgment, to examine whether the contested act is in fact the analysis at paragraphs 30 to 31 and 77 to 79 of my vitiated by the defects alleged by the applicant, regardless Opinion in Hüls. of whether the applicant uses them to found a claim of 21 — Paragraphs 39 to 79. non-existence or nullity of the contested decision.

material unknown to it is relevant to its under Article 12 of the Commission's inter- defence and to adduce at least prima facie nal rules of procedure had been observed evidence of the suspicions aroused by that on adoption of the polypropylene decision, material. 23Where those preconditions are secondly, whether the Commissioners had satisfied, the Community judicature cannot before them, at the time when the decision reject a request for reopening of the oral was adopted, a draft of the decision in all procedure on the ground that there is no the official language versions and, thirdly, 'sufficient' or 'concrete' evidence as to whether the text of the decision notified to whether the applicant's submissions are the company was precisely the same as to well founded. content as that on which the College of Commissioners reached their decision. Consequently, inasmuch as the appellant, already at the stage of the written proce- dure, did not make any submissions, albeit inchoate, in that regard, at the same time requesting the Court of First Instance to order the Commission to produce the relevant documents, it is precluded from making them after the closure of the oral procedure 24 and from seeking reopening of that procedure. Thus, the Court of First Instance rightly could not accede to the

That argument is, in my view, interpreted. In the present case, Chemie incorrect. On the one hand, the Court of First Instance Linz ought to have been given pause for gave no ruling on whether the pleading was within the time-limits. Instead it expressly states in paragraph 395 thought by virtue of the very fact that there that '(. . .) The question to be examined, therefore, is whether the applicant has adequately explained why it did were omitted from the court pleadings not plead the existence of those alleged defects earlier, those elements which might have shown since they must in any event have existed before the action was brought. (.

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CHEMIE LINZ V COMMISSION

26. Thus, the Court of First Instance cor- supplementary measures of inquiry. rectly rejected the requests by the appellant Accordingly, the first ground of appeal for reopening of the oral procedure and for must be rejected.

VI — Conclusion

27. In light of all the foregoing I suggest that the Court should:

(1) Dismiss in its entirety the appeal by Chemie Linz G m b H ;