C-5/93

DSM V COMMISSION

OPINION OF ADVOCATE GENERAL COSMAS delivered on 15 July 1997 *

In this case the Court of Justice is called Court of First Instance, the judgment under upon to deliver judgment on the appeal of appeal relates as follows: DSM NV (hereinafter 'DSM') brought pursuant to Article 49 of the EEC Statute of the Court of Justice against an order of the Court of First Instance of 4 November 1992 1 and against a judgment of that Court of 17 December 1991. 2The order of 4 November 1992 dismissed the appli- cation for revision brought by the appellant company, pursuant to Article 41 of the Before 1977 the west European polypropy- EEC Statute of the Court of Justice and lene market was supplied almost exclu- Article 125 of the Rules of Procedure of the sively by ten producers. After 1977 and Court of First Instance, against the afore- following the expiry of the controlling mentioned judgment of 17 December 1991 patents held by Montedison, seven new dismissing the action brought by the appel- producers appeared with substantial pro- lant pursuant to Article 173 of the EEC duction capacity. This was not accompa- Treaty (hereinafter 'the Treaty') against the nied by a corresponding increase in Commission's decision of 23 April 1986 demand, with the consequence that (hereinafter the 'Polypropylene' decision). 3 demand did not match supply, at least until That decision concerned the application of 1982. More generally, for the greater part Article 85 of the Treaty in the polypropy- of 1977-1983, the polypropylene market lene production sector. was characterised by low profits or even significant losses.

simultaneous investigations in a number of — in the case of BASF, DSM and Hüls, undertakings operating in the polypropy- from about mid-1977 until at least lene production sector. Following those November 1983... investigations, the Commission addressed requests for information, under Article 11 of Regulation No 17, to the above compa- nies, and also to other related undertakings. From the evidence obtained during the course of those investigations the Commis- sion concluded that, between 1977 and in an agreement and concerted practice 1983, certain polypropylene producers, originating in mid-1977 by which the including DSM, had been acting in contra- producers supplying polypropylene in the vention of Article 85 of the Treaty. On territory of the EEC: 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.

(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 (The Companies)... DSM NV... have facilitate the implementation of such infringed Article 85(1) of the EEC Treaty, target prices, including (principally) by participating: temporary restrictions on output, the exchange of detailed information on their deliveries, the holding of local meetings and from late 1982 a system of "account management" designed to implement price rises to individual customers;

5. By separate document lodged at the Registry of the Court of First Instance on 26 May 1992, DSM applied for revision of that judgment of the Court of First Instance. In support of that request, it Article 3 relied on certain factual evidence of which, it maintained, it had only become aware after delivery of the judgment of the Court of First Instance of 17 December 1991 and, in particular, of the judgment of 27 Febru- The following fines are hereby imposed on ary 1992 in the related cases BASF and the undertakings named herein in respect of Others v Commission (hereinafter 'the the infringement found in Article 1: PVC cases'). 5From that evidence it can be concluded, according to DSM, that the contested decision was vitiated by serious procedural defects which justified revision of the judgment of 17 December 1991. In its abovementioned decision of 4 Novem- ber 1992, the Court of First Instance dismissed the application for revision.

5 — Joined Cases T-79/89, T-84/89, T-85/89, 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 (iv) DSM NV, a fine of 2 750 000 ECU, or T-104/89 BASF and Others v Commission [1992] ECR 5 898 447,50 German marks II-315.

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6. DSM lodged an appeal against that Instance of 17 December 1991, toge- decision, requesting the Court to: ther with interest as provided for by law and the costs incurred by DSM;

(i) Declare the present appeal to have been (vi) In the alternative, annul the order of brought within the time-limits; 4 November 1992 made by the Court of First Instance in Case T-8/89 REV, and refer the case back to the Court of First Instance for judgment;

tains that the Court of First Instance appealed against and put forward at misconstrued Article 41 of the EEC Statute point 2.3 of the application for revision. of the Court of Justice which lays down the The appellant considers that the Court of conditions under which it may avail an First Instance ignored the factual submis- applicant to make an application for revi- sions contained in points 2.1 and 2.2 of the sion. Under the interpretation favoured by application for revision. Those submissions the appellant, for a judgment to be revised concerned the following matters: it is sufficient simply for a fact of such a nature as to be a decisive factor to be discovered, without there being any need for that fact to precede in time delivery of the judgment of which revision is sought. First, DSM had raised the hypothetical According to DSM, there was no legal basis question whether the Dutch text of the for the imposition of that additional con- Polypropylene decision had been before the dition by the Court of First Instance. DSM College of Commissioners. also emphasises that the Court of First Instance focused its examination on the moment in time when the facts relied on by DSM became known to it, without first Secondly, DSM had pointed to the like- examining to what extent the factual lihood that the Polypropylene decision was elements in question constituted facts vitiated by 'particularly serious and man- within the meaning of Article 41 of the ifest defects' analogous to those accepted EEC Statute of the Court of Justice. DSM by the Court of First Instance in the PVC takes the view that the factual elements cases. 6 In particular, the following proce- relied on by it could not be regarded as dural defects are alleged: facts but merely as suppositions from which after examination certain facts could possibly be inferred which would be rele- vant to a determination of the dispute. It was for that reason, moreover, that the (i) Non-submission to the College of appellant had submitted to the Commis- Commissioners of the authentic text sion, on 5 May 1992, a request for the in Dutch of the contested decision. communication of certain important items of evidence. Accordingly, the appellant concludes that the Court of First Instance misapplied Article 41 of the EEC Statute of the Court of Justice. (ii) Unlawful delegation of authority to the Commissioner for Competition to issue the text of the contested decision in Dutch.

the Commission's Rules of Proce- 'amendments and additions' to the decision dure. adopted by the College of Commissioners contained in the text communicated to DSM. However, in the application for revision there is no mention of 'facts' (iv) Failure to annex the authentic text of within the meaning of Article 41 of the the original of the decision to the EEC Statute of the Court of Justice, but minutes of the Commission meeting at merely of suppositions concerning possible which the decision in that regard was alterations and additions to the content of adopted. the decision adopted by the College of Commissioners. The actual facts remain unknown to both DSM and the Court of First Instance. (v) Existence of changes in the content of the Polypropylene decision after its adoption which are not merely 'spel- ling or grammatical corrections.' 11. (d) According to the appellant, the Court of First Instance incorrectly took the view in paragraph 18 of the order (vi) The non-existence of an authentic appealed against that the amendments and Dutch text of the Polypropylene deci- additions subsequently made to the content sion also means that there was no of the contested Polypropylene decision enforcement order for the levying of were known to the applicant for revision the fine, as required under Article 192 prior to delivery of the judgment of which of the Treaty. revision is sought. The Court placed reli- ance on the fact that, at the hearing before it in the PVC case, which took place on 10 December 1991, the applicant for revi- 9. According to DSM, those submissions sion was present and was represented by are particularly serious in view of the the same lawyer who also represented it in Commission's refusal to produce relevant the polypropylene case. At that hearing the evidence, in spite of a request in that regard Commission's representatives gave ade- from the appellant. The latter maintains quate explanations concerning the content that the submissions in question were not of the supposed amendments and additions duly examined by the Court of First alleged above. Consequently, the applicant Instance with the result that the order for revision had knowledge of those mat- appealed against does not contain an ters and was in a position to invoke them in adequate statement of the reasons on which due time, before delivery on 17 December it is based. 1991 of the order of the Court, in the context of an application for the reopening of the oral procedure. 10. (c) The appellant further considers that the rules concerning statements of reasons for judgments of the Community judicature were broken because, in paragraph 16 of 12. DSM counters that reasoning in the the order appealed against, the Court of contested order with the following argu- First Instance described as a 'new fact' the ments: the fact that its lawyer was present I - 4702

at the hearing in the PVC cases is legally certain that the text of the judgment must irrelevant. He was present there as the have been settled definitively before representative of another undertaking in 10 December 1991 and merely the text the context of a different case which thereof was in translation. Consequently, concerned the lawfulness of a different there was not on the facts any possibility of Commission decision. Nor did the Com- reopening the oral procedure. mission representative refer to subsequent amendments to the content of the Com- mission's already adopted decisions but to the issue of their authentication under Article 12 of the Commission's Rules of 14. (e) The appellant challenges paragraph

The appellant considers that that term is essentially a paraphrase of wording appearing in a judgment of 26 February 1987 7 which 13. As regards the viewpoint of the Court spoke of 'particularly serious and manifest of First Instance to the effect that DSM was defects.' In the appellant's view the reason- in a position, prior to delivery of the ing in that case cannot be transposed to the decision of which revision is sought, to present case. The defects in the Polypropy- submit in due time an application for the lene decision are not obvious.

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rial (. . .).' there was a breach of the principle of equality owing to the fact that the Court of First Instance, unlike the position it took in the PVC cases, refused to examine the application for revision on its merits, on the 16. According to the appellant, the above- basis of the evidence relied on by DSM. In mentioned letter which it sent to the the PVC cases the Court adopted measures Commission on 5 May 1992, as well as of organisation of procedure whereby it the fact that it remained unanswered, are of requested the Commission to produce a particular significance for the determina- series of relevant evidential items in con- tion of the present case. Moreover, as may nection with the possible existence of be inferred from the Court's PVC judg- substantial procedural defects in the con- ment, in such cases the parties are not tested decision. Basing themselves on the required to adduce conclusive evidence of material which the Commission finally defects but merely the evidential items submitted to the Court of First Instance, which may be available to them. Nor does the applicants were able to identify and Community law preclude, the appellant invoke the substantial procedural defects in submits, applications for revision from the Commission's PVC decision which led being made by parties who merely suspect to its being declared void.

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DSM V COMMISSION

them. That fact carries much weight, in the time-limits and be examined by the Court appellant's view, for it amounts to unfa- of its own motion. In that connection the vourable treatment of the undertakings in appellant relies on paragraph 68 of the respect of which the judgments in their PVC judgment from which it believes the actions were delivered on 24 October 1991 following matters may be inferred: every and 17 December 1991. plea based on the non-existence of the contested decision is a matter of public interest and may be raised by the parties even outside the procedural time-limits and must be examined by the Community

Justification that the Court considered that difference in for departing from the letter of the provi- treatment to be unimportant since DSM sions is to be found, the applicant submits, was already aware of the relevant facts in paragraphs 71 to 77 of the PVC before judgment was delivered in the PVC judgment of the Court of First Instance in case. The appellant refers to its previous which reference is made to the importance analysis in order to maintain that that of guaranteeing 'the stability of the legal reasoning is erroneous. Finally, the appel- order and legal certainty for those subject lant points out that the First Chamber of to measures adopted by Community insti- the Court, which adjudicated on the appli- tutions.' In light of the foregoing, by cation for revision, was aware of the declining to review, in the context of an matters that had been revealed during the examination of the application for revi-

25. As regards the submission that the 22. In its reply the Commission requests Polypropylene decision was not submitted the Court to dismiss the appeal as inad- to the College of Commissioners in its missible in its entirety. The respondent authentic Dutch version, the respondent contends that the appeal concerns the counters by contending that that is of no question whether a 'new fact' has emerged practical significance. The relevant factor is in the present case or simply a 'fact' capable whether that decision was none the less of justifying revision of the judgment. adopted by the College of Commissioners However, that question, according to the in one of the five authentic languages; it is Commission, is a question of fact and not a not essential for that decision to be taken point of law. Accordingly, it is not admis- separately in each of the authentic language sible under Article 51 of the EEC Statute of versions. Accordingly, since the French the Court of Justice for it to be raised at the draft of the Polypropylene decision was appeal stage. presented to and approved by the College of Commissioners, no procedural irregular- ity occurred.

23. In the alternative, the Commission contends that that part of the head of claim on appeal in which the Court is asked to order the Commission to reimburse the fine paid is inadmissible since it is contrary to 26. As to the submission that power was Article 176 of the Treaty. improperly delegated to the Commissioner I - 4706

DSM V COMMISSION

27. As regards the failure to authenticate the decision in accordance with Article 12 of the Commission's Rules of Procedure, the respondent contends that that provision 30. Finally, the Commission observes that does not confer rights on third parties. The none of the abovementioned issues come addressee of a Commission decision cannot within the subject-matter of the decision on plead non-compliance with the abovemen- revision. The investigation by the Commu- tioned provision, or with the Rules of nity judicature is limited in such cases to an Procedure in general, in order to obtain appraisal of the claim in light of the annulment of the decision concerning him. requirements of Article 41 of the EEC Nor can he plead a failure to adjust the Statute of the Court of Justice. Moreover, original authenticated text in line with the none of the abovementioned procedural minutes of the meeting at which it was failings and irregularities, on the supposi- adopted. tion that they exist, affect the validity of the Commission's Polypropylene decision because they are in connection with proce- dural rules which govern the internal action of the Commission and do not confer rights on third parties affected by the decisions adopted. The addressees of the decisions at 28. As regards the absence of an enforce- issue are bound by the text communicated ment order, as provided for in Article 192 to them which produces effects for as long of the Treaty, as a consequence of there as it is not revoked or amended. being no authentic Dutch version of the Polypropylene decision, the Commission observes that that is a misinterpretation of 10 — Judgment in Case 131/86 United Kingdom v Council Article 192. In any event the decision [1988] ECR 905.

(ii) Secondly, the Commission replies to the not constitute 'facts' but simply matters grounds of appeal raised by DSM which do not relate to particularly obvious procedural defects in the Polypropylene decision but to defects which in the end were not obvious but simply hypothetical. 31. As regards the first and second grounds Also, in the fourth ground of appeal, the of appeal, the appellant, according to the appellant is challenging the assessment Commission, was wrong to accuse the made by the Court of matters of fact. That Court that it first examined at what point ground of appeal, according to the respon- in time the facts which it submitted with its dent, is inadmissible. In one way or another application for revision became known to the Commission considers that the appel- the applicant for revision before examining lant acquired knowledge of the factual whether the relevant 'factual' submissions matters relied on in the application for constituted facts within the meaning of revision prior to delivery of the judgment of Article 41 of the EEC Statute of the Court the Court on the action, that is to say of Justice. That provision cumulatively before 17 December 1991. Since the appel- requires, first, the submission of 'facts of lant's legal representative took part in the decisive significance' which, secondly, were written procedure and hearing in the PVC 'unknown' to the applicant and to the cases he was in a position to apprise himself Community judicature prior to delivery of of those matters of fact already with effect the decision. Accordingly, the Court was from 19 July 1989, that is to say when the right to focus its examination on the grounds of annulment relied on by the question whether the factual submissions applicants in the PVC cases were published made by the appellant in its application for in the Official Journal or, in any event, on revision were unknown to it prior to 10 December 1991, the date on which the 17 December 1991, the date on which the hearing in those cases was concluded. decision in respect of which revision was sought was delivered. The Court was entitled to examine first whether the factual matters in respect of which submissions were made were unknown to the party and to the Court before examining, if necessary, 33. As regards the sixth ground of appeal, whether those submissions amounted to the Commission agrees with the reasoning 'facts of decisive significance'. adopted by the Court of First Instance at paragraph 20 of the order appealed against.

35. The ninth ground of appeal makes raised by the Commission. It is appropriate reference to the unfair treatment allegedly first to recall that, under Article 51 of the accorded by the Court to the appellant on EEC Statute of the Court of Justice, an account of the fact that it did not deliver appeal 'shall be limited to points of law. It judgment in all the joined cases on the same shall lie on the grounds of lack of compe- date. The Commission observes that no tence of the Court of First Instance, a such obligation on the Court can be breach of procedure before it which inferred from any procedural or substantive adversely affects the interests of the appel- rule of Community law. In any event, the lant as well as the infringement of Com- appellant acquired knowledge of the fac- munity law by the Court of First Instance.' tual matters in respect of which he made Moreover, the provisions of Articles 113(2) submissions, at the latest on 10 December and 116(2) of the Rules of Procedure of the 1991, that is to say before the Court gave Court of Justice preclude the appellant judgment on its action against the Poly- from changing in its appeal the subject- propylene decision. matter of the proceedings before the Court of First Instance; nor may the subject- matter be changed in the response. In the Commission's submission, to the extent to which the appeal exclusively concerns the issue whether at first instance a 'new fact' 36. In its tenth ground of appeal the was submitted of such a nature as to lead to appellant submits that, in accordance with revision of the judgment in respect of which the Court's PVC judgment, the Court ought revision is sought, the appeal is inadmissi- to have checked of its own motion whether ble in its entirety because it raises not a the Polypropylene decision had within it legal but a factual question. substantial procedural defects which ren- dered it non-existent. However, according to the Court's PVC decision, as the Com- mission interprets it, judicial review of the Court's own motion is required only in cases where the parties have produced 'concrete evidence' of a likelihood that the contested decision was non-existent.

connection are inadmissible. Accordingly, it B — The grounds of appeal put forward by is a matter of interpreting the statement of DSM claim on the appeal and of each of the grounds of appeal put forward in order to determine in each case whether the plea is In the present case the following matters one of misinterpretation of the legal con- may be inferred from DSM's appeal plead- cept of 'a fact (. . .) of such a nature as to be ing and the grounds of appeal contained a decisive factor, and which was unknown therein:

A plea challenging the Court of First Instance's appraisal of the medical character tioned article. of the findings made by the committee appointed to decide whether invalidity is of occupational origin is inadmissible. 13 — As regards the Commission's ancillary plea of inadmissi- bility of one of the heads of claim in the statement of claim on appeal, the following observations should be made: first, the appellant is seeking, legitimately and without its claim being called in question by the Commission, the 40. Yet I believe that the logical approach setting aside of the order of the Court of First Instance of 4 November 1992 rejecting its application for revision of followed by the Court of First Instance the original judgment at first instance of 17 December

Instance.

of Justice. For an application for revision to lants; for in those grounds it is argued that be admissible, it is essential that the facts the factual submissions made in the appli- on which it is based should remain cation for revision do not amount to 'facts' unknown to the applicant and to the Court but to mere suppositions as to defects until delivery of the judgment in respect of presumed to be latent in the Commission's which revision is sought. In the present case Polypropylene decision. knowledge of the facts must not have been known before 17 December 1991, the date of delivery of the judgment in Case T-8/89. Irrespective, therefore, of whether the mat- ters on which submissions were made in the application for revision constituted or did 42. Furthermore, the second ground of not constitute 'facts' within the meaning of appeal going to inadequacy of the reason- Article 41 of the EEC Statute of the Court ing underlying the order appealed against of Justice, it was in any event necessary that appears to me to be unfounded.

Yet the those factual submissions redundant. There reply by the Court of First Instance related was therefore no requirement for there to to all the factual submissions made by the be an examination of whether those facts applicant for revision. More particularly, it constituted or did not constitute 'facts' is stated at paragraph 18 as follows: '(. . .) within the meaning of the relevant rule of The applicant for revision was at that Community law. 16 hearing [in the PVC cases] and was repre- sented there by the same lawyer as in the procedure which led to the judgment of

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matters on which DSM had based its that regard to assess any item of evidence, application for revision. Accordingly, the including participation of the applicant for . ground of appeal in that connection must revision or of its representative in other be dismissed as unfounded. proceedings, having a different subject- matter, in the course of which the relevant facts on which the application for revision is based were discovered. 18

17 — Nor, moreover, has the appellant alleged or proven that the evidence was distorted by the Court of First Instance, an allegation which would be reviewable on appeal (Case 18 — Knowledge of the 'fact' may have been acquired purely by C-136/92 P Commission v Brazzalli Lualdi and Others chance: see judgment in Case 116/78 REV Bellintani and [1994] ECR I-1981, paragraph 49). Others v Commission [1980] ECR 23.

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By adopting account of the fact that judgment on the that position, the Court of First Instance, in action brought by it against the Commis- the appellant's submission, infringed Com- sion's Polypropylene decision was delivered munity law and went back on its holding in on a different date from the date on which the PVC cases. judgment was given on the corresponding actions brought by other undertakings against the same decision. However, in accordance with a general principle of 48. The appellant's reasoning is based on Community procedural law, the Court is the false premiss in law that, when an master of the procedure before it and application for revision comes before it, the enjoys complete freedom in choosing the Community judicature is always obliged to date of delivery of its judgments. Nor, examine the case on its merits, ordering any moreover, may it be inferred from any measures of organisation of procedure other procedural principle, for example the which may be appropriate and examining sound administration of justice or the right issues which call for review of its own of Community-law subjects to judicial motion. However, under Article 41 afore- protection, that the Court of First Instance said of the EEC Statute of the Court of is obliged to give judgment on all related Justice and Article 127 of the Rules of cases on the same date, even where they are Procedure of the Court of First Instance, joined cases. examination of the merits of the dispute by the Court on an application for revision is appropriate only where submissions are contained in the application for revision

. .) of the document in as a second review of the merits of a case. That has been question and any other relevant information in the hands reiterated many times by the Court in its settled case-law: of the Italian administration.' On those grounds the Court see Bellintani v Commission (footnote 18) and ISAE/VP dismissed the application for revision. and Interdata v Commission (footnote 16).

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