C-286/95

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3. On 2 May 1991, Solvay initiated annul- 5. The Commission submitted written ment proceedings to challenge Decisions observations on the new pleas raised by 91/298/EEC and 91/299/EEC (Cases Solvay in a separate document on 4 June T-31/91 and T-32/91), while on 14 May 1992, and in its rejoinder of 7 May 1992 in 1991, ICI initiated annulment proceedings ICI. In each case, the Commission argued against Decision 91/300/EEC (T-37/91). that the plea was inadmissible under Arti- cle 48(2) of the Rules of Procedure of the Court of First Instance as no matter of fact or law regarding alleged textual discrepan- cies between the versions notified and those published had come to light in the course of the proceedings.

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8. Following that judgment, on 6 July 1994 10. The C o m m i s s i o n r e p l i e d on the Court of First Instance sent a number of 11 November 1994, enclosing 'the authen- questions to the parties inviting them to ticated texts' 5of the contested Decisions in give their views on the inferences to be French, English and German, with an drawn from the PVC Appeal. The Com- undated form of authentication signed by mission was requested to produce the the President and Secretary-General of the extracts of the minutes of the Commission Commission. meeting at which the contested Decisions were adopted and the text of those Deci- sions 'authenticated at that time, in the languages in which they are authentic, by the signatures of the President and the 11. The Court of First Instance annulled Secretary-General and annexed to the min- the three Commission decisions by judg- utes'. In its reply, the Commission took the ments given on 29 June 1995, against view that the merits of the plea regarding which the Commission is now appealing: authentication should only be examined after the Court had ruled on its admissi- bility, and declined to produce the docu- ments requested.

— Case T-31/91 Solvay v Commission, concerning Decision 91/298/EEC (on appeal, Case C-287/95 P);

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12. In each of the judgments under appeal, — even if this provision did require that a the Court of First Instance made the new matter be raised as expeditiously following findings: as possible, the applicants had, in the circumstances, satisfied this require- ment;

— the statements made by representatives of the Commission in PVC that this institution had failed over several years to authenticate acts adopted by the — even if the applicants were not entitled college of Commissioners is a fact upon to raise the issue of authentication, an which the applicants could rely; allegation of an infringement of an essential procedural requirement could in any case be raised by the Court of its own motion;

— as even a careful reading of the text notified would not have revealed the failure to authenticate, the applicants could not have been expected to rely on it at the time they lodged their applica- — the mere failure to observe the essential tions; procedural requirement constitutes the infringement, regardless of whether there were any discrepancies between the texts, or whether such discrepancies were material;

— Article 48(2) of the Rules of Procedure of the Court of First Instance lays down neither a time-limit nor any particular formality for the submission of a new plea in law; in the absence of an express, unequivocal rule requiring — regardless of the above, in the present- that a new submission be made imme- cases authentication was carried out diately, or within a particular period, after the originating application was after the matters of fact or of law to brought; an institution may not, with- which it refers come to light, the out infringing legal certainty and the applicants were entitled to raise the rights of the parties affected, cure a authentication issue before the oral material defect by effecting a retro- hearing; active regularisation.

If in the course of the procedure one of the parties puts forward a new plea in law The President shall, as may be required, which is so based, the President may, even notify acts adopted by the Commission to after the expiry of the normal procedural those to whom they are addressed.' 7 time-limits ... allow the other party time to answer on that plea.

14. The relevant provisions of the Rules of Procedure of the Court of First Instance, in

Consideration of the admissibility of the 7 — OJ, English Special Edition, Second Series, VII, p. 3. plea shall be reserved for the final judg- Article 16 of the current Rules of Procedure provides that '[instruments] adopted by the Commission ... shall be ment.' attached ... in such a way that they cannot be separated, to a summary note prepared at the end of the meeting at which they were adopted [and] authenticated by the signatures of the President and the Secretary-General on the last page of the summary note' (OJ 1999 L 252, p. 45). 8 — OJ 1991 L 136, p. 1.

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Article 65 (2) Evidence may be submitted in rebuttal and previous evidence may be ampli- fied.'

16. In its second plea, the Commission is, decision, and by not giving reasons for in effect, challenging the qualification by its failure to so consider. the Court of First Instance of the authenti- cation requirement as an 'essential proce- dural requirement' within the meaning of the first paragraph of Article 173 of the EEC Treaty (now, after amendment, the second paragraph of Article 230 EC), and 18. In the contested paragraphs, the Court its finding that authentication must take of First Instance cited the finding of the place before notification of the measure. As Court in paragraph 76 of the PVC Appeal the legal character of this requirement is that 'authentication constituted an essential central to a consideration of the procedural procedural requirement within the meaning issues, I propose to deal first with this of Article 173 of the EEC Treaty', and question, which is raised in the first and continued: third limbs of the Commission's second plea.

'[it] should be pointed out that it is the mere failure to observe the essential proce- dural requirement in question which con- stitutes that infringement. It is therefore (a) Authentication as an essential proce- unconnected with the question whether dural requirement there are discrepancies between the texts adopted, notified and published and, if so, whether or not those discrepancies are material [, which is why it is irrelevant that 17. According to the Commission, the the textual discrepancies pointed out by the Court of First Instance has infringed Com- applicant ... are to be regarded as insignif- munity law: icant].' 9

have examined in such detail the other judgments in Distillers Company 12 and alleged defects, and in particular textual Van Landewyck, 13 and particularly in the discrepancies, in paragraphs 62 to 73 of the PVC Appeal, where the Court considered judgment. Paragraph 73 shows that the whether the defects in the procedure for authentication requirement cannot be sepa- adopting the PVC decision could have rated from the need to be able to identify affected its content. In the present cases, with certainty the full text of the acts the Court of First Instance erred in failing adopted by the college of Commissioners. to consider whether the interests of the In the absence of any indication that the applicants could have been affected by the text of the contested Decisions had been lack of contemporaneous authentication. altered after their adoption, the question of whether they had been authenticated is of no interest in verifying whether or not the principle of collegiality had been respected. This view is, the Commission argues, in line with other judgments of the Court of First Instance 10 and the Opinion of Advocate 21. The Commission's interpretation of the General Lenz in Spain v Commission. 11 term 'essential procedural requirement' is, The ruling of the Court of First Instance in in my view, erroneous. The Commission the judgments under appeal would have fails to distinguish between essential pro- even more negative effects than its finding cedural requirements and other formal of non-existence in PVC, which was at least requirements. This is demonstrated by the limited to the very specific facts of the case. very wording of the first limb of its second plea, where it describes the Court of First Instance as having held that 'authentication is a formal requirement', 14 when that Court spoke in express terms of an 'essen- tial procedural requirement'. 15 It is also clear from the terms of its remarks seeking to distinguish this case from PVC, to the effect that the applicants were required to demonstrate in what respect the alleged 20. The Commission further contends that infringement affected their interests. the qualification 'essential' in the term 'essential procedural requirement' is an expression of the principle of proportion- ality, in other words, that the sanction for a breach of such a requirement must bear a relation to the seriousness of the error. To justify annulment, the applicants would have had to show that the measures could 22. While the Court has tended to avoid have been different in the absence of the abstract definitions of the term 'essential procedural defect, as demonstrated by the 12 — Case 30/78 Distillers Company v Commission [1980] ECR 2229. 10 — C a s e T-43/92 Dunlop Slazenger v Commission [1994) 1 3 — J o i n e d Cases 209/78 to 215/78 and 218/78 Van Land- ECR II-441; Case T-35/92 John Deere v Commission ewyck v Commission [1980] ECR 3125. [1994) ECR II-957, and Case T-29/92 SPO v Commission 14 — Or, in the Solvay cases, 'l'authentification est une condition [19951 ECR II-289. de forme'. 11 — Case C-135/93 [1995] ECR I-1651. 15 — See the citation in paragraph 18 of the present Opinion.

24. The duty imposed on an adopting authority to consult other Community institutions or ancillary bodies, or the Member State concerned, clearly illustrates the nature of an essential procedural requirement. In France v High Authority, the first case decided by the Court of Justice 23. That procedural rules should in general of the European Coal and Steel Commu- be accorded such an important place in the nity, the Court considered of its own Community legal order is not the result of motion whether the defendant had failed an excessive attachment to formalism, but to consult the Council as it would have reflects rather the fact that these rules been obliged to in adopting a particular guarantee a minimum degree of input into provision if, when read in conjunction with the decision-making process for each of the an earlier Decision, this provision consti- participating institutional actors (institu- tuted 'in disguised form, an addition to the tions, ancillary bodies, Member States). It definition of prohibited practices'. 19 Simi- is in this respect that Advocate General larly in Italy v High Authority, 20 the Court Tesauro compared to a fundamental right verified the adequacy of the consultation of 'a Member State's ... right to the obser- the Consultative Committee of the ECSC, vance of those procedural rules which it on the ground that if the plea alleging non- had previously accepted, and not other rules'. 16 While the circumstances in which an individual may rely on such procedural 17 — Case 9/56 Meroni v High Authority [1957 and 1958] rules against the Commission may be more ECR 133, p. 152. 18 — As the facts of this case predate both the Treaty on limited, the Court has long recognised that European Union and the Amsterdam Treaty, for Treaty articles on which I base an argument, as opposed to those which apply to the facts of these cases, I shall in this Opinion generally refer to the current numbering. 16—Case 30/88 Greece v Commission [1989] ECR3711, 19 — Case 1/54 [1954-1956] ECR 1, p. 15. paragraph 14 of his Opinion. 20 — Case 2/54 [1954-1956] ECR 37, pp. 51 and 52.

consultation 'were well founded the Court State and to the importance of the respon- would be justified in annulling the decision sibilities which that State assumes [such of its own motion on the ground of consultation was] an essential procedural infringement of the Treaty or of an essential requirement the disregard of which renders procedural requirement'. The Court has the contested decision void'. 26 subsequently treated consultation of the European Parliament 'in the cases provided for by the Treaty', 21 and consultation of advisory, 22 management 23 and regula- tory 24 committees, as constituting essential procedural requirements: indeed, in the latter group of cases, the Court went to great lengths to identify whether the legis- lator intended to make such consultation a 25. A number of other essential procedural requirement of the validity of the measure requirements, some of even more direct and insisted on a scrupulous respect by the relevance to that at issue in the present Commission of the Rules of Procedure of proceedings, may be found in the case-law. the committee consulted. 25 The require- In the Hormones case, for example, the ment laid down in various legislative mea- Court held that the Council was obliged to sures that the Commission consult the comply with Article 6(1) of its own Rules Member State concerned before taking of Procedure governing recourse to a writ- funding decisions is equally treated as an ten procedure for the adoption of Council essential procedural requirement. Thus in acts, which required the unanimous assent of the Member States: '|the Council] can- the Social Fund cases, the Court annulled not depart from that rule, even on the basis the contested Decisions as the Commission of a larger majority than is laid down for had failed in each case to consult the the adoption or amendment of the Rules of Portuguese Government as required by the Procedure, unless it formally amends those applicable provisions of the European rules'. 27 In the Laying Hens case, the Social Fund Regulation: '[having] regard published text of a Council Directive to the central role of the relevant Member differed in three respects from that which had been adopted; though the Court expli- citly recognised that 'the alterations made

Scientific Committee for Cosmetology). 23 — Case 278/84 Germany v Commission |1987] UCR 1 (Agri- monerary Management Committee, Cereals sector); Ger- many's complaint was rejected on the facts. See also Case C-241/95 The Queen v intervention Board for 26 — Case C - 2 9 1 / 8 9 Interhotel v Commission [1991] Agricultural Produce, ex parte Accrmgton Beef and Others F.CR I-2257, paragraph 17, anil Case C-3(M/89 Olmeira [1996] ECR 1-6699 and Case C-244/95 Moskof v HOK v Commission | 1 9 9 1 | UCR 1-2283, paragraph 2 1 . [1997] ECR 1-6441. 27 _ Case 68/86 Vinteti Kingdom v Council [1988] ECR 855, 24 — Case C-263/95 Germany v Commission 11998] ECR 1-441 paragraph 48; the contested Directive was adopteil by a (Standing Committee on Construction), hereinafter 'Con- qualified majority, while only a simple majority was slruction Products'. required for the adoption hy the Council of its Rules of Procedure (Article 5 of the Merger Treaty (now, after 25 — See respectively Angelopharm and Construction Products, amendment. Article 207(3) EC) read with Article 148(2) cited in footnotes 22 and 24 above. of the EEC Treaty (now Article 205(2) EC)).

27. The difference between essential and 26. In none of these cases did the Court non-essential procedural requirements is enquire as to the concrete effects on the well illustrated by the judgments cited by interests of the complainant of the breach the Commission in this regard. In Distillers of the essential procedural requirement, or Company, the applicant complained that whether the outcome might have been any the Advisory Committee on Restrictive different if that requirement had been Practices and Monopolies did not have respected. In some cases, it is clear that available to it either the minutes of the there was no such effect, or that the hearing before the Commission or certain outcome would not in any case have been documents submitted by the applicant, and any different. In the context of infringe- that the Commission had supplied the ment proceedings, for example, the Court applicant with an incomplete copy of the has held that the requirement that a intervener's c o m p l a i n t . T h e applicant Member State be given the opportunity to sought to rely upon these as 'essential present its observations is an essential procedural requirements' justifying the procedural requirement 'even if the Mem- annulment of the contested decision as a ber State does not consider it necessary to whole, and they were even described as avail itself thereof'. 31 The fact that the such in the Opinion of the Advocate General. 3 4 The Court, on the other hand, treated the complaints as 'procedural irre- gularities' throughout, and in this context 28 — Case 131/86 United Kingdom v Council [1988] ECR 905. 29 — F o r the ECSC Treaty, see Case 18/57 Hold v High Authority [1959] ECR 4 1 ; for the E(E)C Treaty, see Case 1 5 8 / 8 0 REWE v Hauptzollamt Kiel [ 1 9 8 1 ] ECR 1805. 32 — See, respectively, Case 114/81 Tunnel Refineries v Council 30 — Case 45/86 Commission v Council [1987] ECR 1493; for a [1982] ECR 3189 and Case C-331/88 Fedesa and Others useful summary of the case-law in this area, see Joined [1990] ECR 1-4023. Cases C-164/97 and C-165/97 Parliament v Council 33 — Case C-392/95 Parliament v Council [1997] ECR 1-3213, [1999] ECR I-1139. paragraphs 21 to 2 3 . 31 — Case 211/81 Commission v Denmark [1982] ECR 4547, 34 — Case 30/78, cited in footnote 12 above, Opinion of paragraph 9. Advocate General Warner, pp. 2279 and 2290.

29. Not every provision of the Rules of Procedure of the Community institutions and bodies which participate in the politi- cal or administrative decision-making pro- 28. It seems to me to follow from the cess can, however, be considered an essen- reasoning implicit in these cases that, if a tial procedural requirement. In France v particular procedural requirement is, on a Parliament, the applicant Member State proper interpretation of the legal provisions argued that the Parliament had violated imposing it, 'essential', then it can be raised Rule 48 of its own Rules of Procedure in by any applicant with the requisite standing adopting the contested Resolution under before the Court without the further neces- the urgent procedure, when the subject of sity of showing that the situation of the the Resolution was neither topical nor applicant could have been different if the urgent. The Court rejected this submission requirement had been complied with, or- on the ground that 'the Parliament's deci- that the breach adversely affected his rights sion to hold in plenary a topical and urgent or interests. A measure which is fundamen- debate on a motion for a resolution on a tally flawed in that sense offends against given subject relates to the internal organi- the objective standards of legality of Com- sation of its work and cannot, therefore, be munity law, rather than the subjective the subject of judicial review'. 38 Similarly interests of a party; as I will show subse- in Nakajima v Comicil, the Court rejected a quently, the breach can be raised by the contention that the Council had failed to Court on its own motion, to ensure that the respect its Rules of Procedure by including measure is not allowed to continue in force on its agenda the examination of a Com- any longer than is unavoidable. The objec- mission proposal which had not been made tive character of such procedural require- available to members in good time and in ments is clear from the Court's finding in all the requisite language versions. The the Hormones case that 'the rules regarding Court noted in particular that 'the purpose the manner in which the Community of the rules of procedure of a Community

3 1 . The correctness of the Commission's 30. The Court did not deal in this case with reliance on the PVC Appeal to show that the question of whether the particular lack of authentication is only a breach of an provisions of the Council's rules were essential procedural requirement when it is essential procedural requirements. How- combined with one or more defects which ever, it is clear from the Opinion of affect the notified text depends on the Advocate General Lenz in that case 40 that interpretation of that judgment. The Com- the applicant's claim was unfounded, as the mission claims that failure to authenticate Council's rules permitted the late inclusion only constitutes such a breach when a of items on the draft agenda if the members discrepancy can be shown between the text agreed unanimously to this course of adopted and that which is authenticated. In action, 41 and that the documents were in paragraphs 62 to 73 of the judgment, the fact available in all the necessary language Court did not, as the Commission claims, versions for the vote. The terms in which 'conduct ... a detailed examination of the the Court answered this contention can be other defects found by the Court of First explained as being intended to discourage Instance in its judgment of 27 February potential litigants from raising speculative 1992, which concerned in particular the arguments about the internal operation of textual discrepancies and the question of the institutions; the applicant here had the "habilitation"'. Instead, the Court requested the Court to order the Council recalled its case-law on the principle of to produce the preparatory documents

collegiate responsibility (paragraphs 62, 63 Article 12 of its own Rules of Procedure by and 71), held that '[compliance] with this failing to authenticate the contested deci- principle ... must be of concern to the sion in the way provided for by that article' individuals affected by the legal conse- and annulled this decision for 'infringement quences of [Commission] decisions' in of [an] essential procedural requirement' competition matters (paragraphs 64 and (paragraphs 76 and 77). 65), and demonstrated the importance of the statement of reasons of such decisions (paragraphs 65 to 69), before ruling that 'reducing the act to writing is the necessary expression of the intention of the adopting 33. The finding of the Court on this point authority' (paragraph 70). The Court went seems to me to be clear and unequivocal. on to hold that Article 12 of the Commis- The Court did not indicate in paragraph 76 sion's Rules of Procedures reflected its that authentication was only an essential Obligation ... to take the steps necessary procedural requirement if the party which to enable the complete text of acts adopted sought to rely on it could show evidence of by the college of Commissioners to be defects or of a breach of the principle of identified with certainty' and that 'the unalterability; indeed, having summarised authentication of acts ... is intended to the arguments of the applicants seeking guarantee legal certainty by ensuring that annulment of the contested decision (para- the text adopted ... becomes fixed in the graphs 56 and 57) in this regard, it languages which are binding. Thus in the expressly held that it was unnecessary to event of a dispute, it can be verified that the examine them (paragraph 78). In the pas- texts notified or published correspond sages relied upon by the Commission precisely to the text adopted by the college (paragraphs 62 to 73), the Court was and so with the intention of the author' merely establishing why a provision in the (paragraphs 73 to 75). It was in the light of internal Rules of Procedure of an institu- these observations that the Court held, at tion, which the Commission had claimed paragraph 76, that: was 'a mere formality for archival pur- poses' (paragraph 75), should be classified as an essential procedural requirement; as noted above, not all procedural rules of the institutions are so classified. '[authentication] of acts referred to in the first paragraph of Article 12 of the Com- mission's Rules of Procedure therefore constitutes an essential procedural require- ment within the meaning of Article 173 of 34. The suggestion made by the Commis- the EEC Treaty breach of which gives rise sion at the hearing that authentication is to an action for annulment.' only such a requirement 'in the event of a dispute' seems to me to be based on circular reasoning. Proof that the text authenticated differs from that adopted amounts to substantial proof of lack of authenticity. It 32. Having established the nature of the is meaningless to add that, in such an event, Commission's duty to authenticate, the the failure of formal authentication is a Court concluded that 'the Commission breach of an essential procedural require- acted in breach of the first paragraph of ment; this is tantamount to depriving the

35. The Commission's argument that no doubt had been raised about the matters which authentication guarantees, and that, unlike in PVC, there was no evidence that 37. For the same reason, Spain v Commis- the text had been altered, therefore misses sion 47 does not support the Commission's the point. As the Commission was unable case. The contested decision in those pro- to produce the original of the contested ceedings was adopted in December 1992, Decisions authenticated at the time, there well after the Commission's change of was no 'authenticated original', and the practice regarding authentication; further- Court of First Instance had no way of more, the applicant's complaint in this knowing whether there were any discre- regard was one of improper notification, pancies between the decisions adopted and rather t h a n a breach of the duty of those notified and, correctly in my view, authentication. It was in this context that held as much. Like the requirement to state Advocate General Lenz correctly concluded reasons, the requirement to authenticate that 'there [was] no evidence whatsoever' serves to assist the Court in carrying out its of a failure by the Commission to respect task of judicial review of Commission its rules of procedure. 48 decisions 'in the event of a dispute'.

requirement of Article 12 of the Commis- validity; hence possible defects in the sion's Rules of Procedure, in the version notification can be corrected. It is para- which applied at the time of the adoption doxical to attribute such absolute impor- of the contested Decisions, was an essential tance to an internal procedure. It would be procedural requirement. It follows that the impossible in practice for the Commission Court of First Instance was correct not to to authenticate urgent acts before notifica- examine the questions of the existence and tion. As the 'authenticated original' of the material character of any textual discre- text shown to the Court of First Instance pancies; the reasons for its finding in this corresponded exactly 49 to the notified text, regard were sufficiently explained by the that Court was not entitled to hold that the classification of the procedural defect as the applicants' right to legal certainty was not violation of an essential procedural require- guaranteed. The Court of First Instance ment. This being so, the first and third limb was inconsistent in that it accepted that the of the Commission's third plea must be same authentication ex post facto was rejected. evidence that paragraph 63 of Decision 91/299/EEC (Solvay, abuse of a dominant position) had been adopted by the college of Commissioners, but not that the decision as a whole had been so adopted. It also erred in allowing the applicants to raise a plea ex post facto but refusing to allow the Commission to authenticate its decisions ex (b) The content of the obligation to authen- post facto. ticate

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authenticate it 'in the way provided for by affect their validity, as was the case, for that article'. 5 1 This is also the only inter- example, in the Laying Hens case. 53 The pretation which would be consistent with failure to authenticate in PVC took place the second paragraph of Article 192 of the after the adoption of the contested decision, EEC Treaty (now Article 256 EC), which and the same can be said in the present provided that the designated authority of case. N o r is it in any way 'paradoxical' to the Member States must enforce Commis- give such importance to a rule such as that sion decisions imposing a pecuniary obliga- in Article 12 of the Commission's Rules of tion, such as the decisions at issue in the Procedure. As is clear from the PVC present cases, 'without other formality than Appeal, that provision 'is intended to verification of the authenticity of the deci- guarantee legal certainty by ensuring that sion'. Unless authentication of such deci- the text adopted by the college of Commis- sions takes place in every case, there is at sioners becomes fixed in the languages least formally a danger that they may not which are binding'. 54 The circumstances be enforced, and the clear intention of which gave rise to that case and the present Article 192 was that authentication be proceedings show the utility of such a rule. systematic. 52

51 — Case C-137/92 P, cited in footnote 4 above, paragraph 77. 53 — Case 131/86, cited in footnote 28 above. 52 — See also Article 5 of the contested Decisions as published in the Official Journal, each of which specifies that the 54 — Case C-137/92 P, cited in footnote 4 above, paragraph 75. decision 'is enforceable pursuant to Article 192 of the EEC 55 — See Article 16 of the current Rules of Procedure of the Treaty'. Commission, cited in footnote 7 above.

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sion, accepted the contested 'authentica- facto its internal procedure' confuses two tion' as evidence that paragraph 63 of entirely different matters, one relating to Decision 91/299/EEC had been adopted the assessment of evidence, the other relat- by the college of Commissioners but not as ing to the admissibility of a new argument. evidence that the texts as a whole had been The two are therefore in no way compar- so authenticated. This argument misrepre- able, as Article 48 of the Rules of Proce- sents the finding of the Court of First dure of the Court of First Instance docs Instance at paragraph 47 of the judgment allow, in certain circumstances, the admis- in Case T-32/91, where it held as follows sion of new pleas, while Article 12 of the (italics added): Commission's Rules of Procedure clearly entails authentication before notification for the reasons given above.

'[the] Commission's explanation is con- firmed by the wording of the authentication subsequently appended to the text of the 47. It follows that, in my view, the Court of decision, which stated that "point 63 set First Instance was correct in holding that out in the annex hereto was adopted by the the Commission was required to authenti- Commission at its 1 040th meeting ...". cate the contested Decisions before notifi- Even though that authentication has not cation and that that requirement had not been effected in accordance with the Com- been respected in the circumstances of the mission's Rules of Procedure (...) the Court cases under appeal. considers that it should be admitted as evidence to show that the college actually adopted point 63.'

49. In the first limb of its plea on the admissibility of the authentication argu- ment, the Commission is contending that the Court of First Instance erred in law by 5 1 . ICI notes that the Commission does not holding that the statements made by its deny the veracity of the statements made by representatives during and after the PVC its representatives during and after the PVC case could be a new fact for the purposes of proceedings. Both respondents argue that Article 48(2) of its Rules of Procedure. The the statements of the Commission were Commission expressly argues that it was a material to their proceedings before the fundamental part of its case that authenti- Court of First Instance as a matter of fact cation is not a self-standing essential pro- founding a new plea in law. When deciding cedural requirement. On the other hand, if on the Polypropylene cases before it, the the Court were to find that the Commis- Court of First Instance did not decide that sion's duty to authenticate was an essential the statements did not constitute a new procedural requirement, then, as the agent fact, while p a r a g r a p h 60 of the PVC for the Commission fairly conceded in Appeal shows that such a plea, raised in response to a question at the hearing, the the course of the proceedings, is admissible parties could, in accordance with Arti- 'since it is based on matters of fact which cle 48(2) of the Rules of Procedure of the came to light in the course of the proce- Court of First Instance, rely on available dure'. 5 8 Solvay argues that the decision of credible evidence that no such authentica- the Court of First Instance was to refuse the tion had taken place.

applicants' requests to reopen the oral Article 125 of the Rules of Procedure of the procedure in these cases, requests which Court of First Instance. While conceding are subject to stricter criteria of admissi- that Article 48(2) does not prescribe a bility than a simple new plea raised in the single deadline as the appropriate time for course of the procedure. raising a new plea during the proceedings may depend on a multitude of circum- stances, the Commission argues that any new plea must be raised without delay, and that in the present case the applicants could have raised the plea some months before they did in fact do so. 52. The Commission's complaint regarding the unspecific nature of its statements made in PVC is founded on its principal argu- ment that absence of authentication is not a breach of an essential procedural require- ment where there is no evidence of any discrepancy between the text adopted and that notified to the parties. On that basis, I would agree that a merely general conces- sion of lack of authentication does not sufficiently prove such a discrepancy. How- ever, on the contrary assumption which I 54. I do not find the Commission's attempt make, namely that proof of a discrepancy is to write a deadline into Article 48(2) of the not required, an announcement such as that Rules of Procedure of the Court of First at issue carries quite different implications Instance convincing. The text does not- and in this case the statements are capable provide for such a deadline, for the simple of constituting a matter of fact within the reason that the oral procedure provides a meaning of the first subparagraph of Arti- natural cut-off point after which the parties cle 48(2) of the Rules of Procedure of the are no longer entitled to rely on Arti- Court of First Instance. cle 48(2). 59 Furthermore, the Commis- sion's reliance on Article 173 of the EEC Treaty seems to me to be misplaced; the two-month deadline definitively determines which acts may be challenged in annulment proceedings, but not the pleas which may be raised in such proceedings. I would add 53. In the second limb of its plea on the that the decision of the Court of First admissibility of the authentication issue, Instance in a particular case to admit a the Commission argues that the Court of 'new plea in law' is a matter assigned to the First Instance erred in holding that there is discretion of that Court, and not that of the no time-limit for raising a new plea under appellate Court. The exercise of such Article 48(2) of its Rules of Procedure. In discretion can be reviewed on appeal only its view, such an interpretation infringes the if the appellant establishes an error of law. principle of legal certainty, which is The autonomy of procedure of the court reflected in the strict time-limits for the hearing the case at first instance requires initiation of annulment proceedings laid down in Article 173 of the EEC Treaty, and for the revision of a judgment under 59 — See further paragraph 73 below.

that a wide margin of discretion be allowed 57. Both Solvay and ICI submit that this in admitting points of law as well as in limb of the plea is inadmissible because the investigating the facts. Court of First Instance Order of 25 Octo- ber 1994 was not a decision in respect of which an appeal is possible under Arti- cle 49 of the Protocol on the Statute of the Court of Justice of the EC (hereinafter 'the EC Statute of the Court of Justice'). Fur- thermore, Article 21 of the EC Statute of the Court of Justice and Article 66 of the 55. The third limb of the Commission's Rules of Procedure of the Court of First first plea alleges that, in ordering the Instance demonstrate that the Court of Commission to produce the text of the First Instance is not bound to decide only decision as authenticated, the Court of First on the evidence supplied by the parties, but Instance infringed Community law, in so enjoys a wide discretion in deciding on far as its order was based on a mistaken measures of instruction. view of the rules governing the procedure and the rules of proof and evidence; the Court of First Instance also made a mistake of reasoning in that it failed to explain why it had concluded that it should order the 58. ICI further contends that the Court of Commission to produce that text. First Instance did not presume that the contested Decisions were procedurally flawed, but merely sought to carry out its duty to examine the plea relating to non- authentication. In so far as the Court of First Instance was bound by Article 190 of the EC Treaty (now Article 253 EC), the Order of 25 October 1994 was sufficiently 56. According to the Commission, the reasoned, and the case-law cited therein Court of First Instance cannot look of its amply supports the unexceptionable pro- own motion for evidence of procedural position that the Community judicature defects; it must decide on the basis of the can, of its own motion, consider breaches evidence supplied by the parties, and can- of essential procedural requirements. not, any more than the Commission in competition cases, set out on a mere 'fish- ing expedition'. In the absence of any evidence to the contrary, the Court of First Instance presumed that the contested deci- 59. In so far as the Commission could be sion was formally flawed and left the said to be challenging the validity of the Commission to prove the contrary. The Order of the Court of First Instance of Order of 25 October 1994 does not pro- 25 October 1994, in particular on the vide any reasons why the Commission grounds that it contains an insufficient should produce the documents to which it statement of reasons, I agree with the refers. Nor could the Court raise the matter respondents that this limb of the first plea of its own motion, as this possibility is is inadmissible. However, it is in my view limited to matters of admissibility and does open to the Commission to argue that the not extend to raising new grounds. measure of inquiry contained in the Order

62. The Commission has sought to chal­ lenge the conclusions on the power of the 60. The principal question which arises in Community judicature to raise new picas in examining this limb of the first plea is that law of its own motion which were drawn of the jurisdiction of the Court of First by the Court of First Instance from a Instance to consider a new plea, rather than number of judgments of this Court cited that of the application of the rules of in the Order of 25 October 1994. It 6 evidence. It is clear, particularly from the considers Nold 3 irrelevant because the wording of Article 48(2) of its Rules of procedural requirement at issue was Procedure, that the Court of First Instance the obligation to provide reasons, and the is competent to examine new pleas where properly raised by one of the parties in 61 — Case 30/59 | 1 9 6 1 | ECU 1, pp. 17 ami 18. 62 — Case C-252/96 I' Vjimpcan Parliament v Qwiami y Lloráis 119981 ECR 1-7421, paragraph .10. 60 — Case C-349/99 I' | 1 9 9 9 | ECR 1-6467. 63 — Case 18/.S7. cited ill inntiime 29 above.

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manifest. It follows, in the Commission's matter went to the exercise of its jurisdic- view, from Amylum 67 that the power of the tional functions. The Commission has Court to raise matters of its own motion is explicitly recognised in the present pro- limited to questions of admissibility. ceedings that authentication serves a pur- pose 'in the event of a dispute', and it would therefore be inconsistent to deny that the Court can raise the breach of this obligation of its own motion.

The as required by the Treaty. As a result the issue raised by the Court on its own motion in Amylum itself did not concern the admissibility of the action, nor indeed were 64 — Case 1/54, cited in footnote 18 above, p. 15. the issues raised in the case-law on essential 65 — Case 2/54, cited in footnote 19 above, pp. 51 and 52. 66 — Case C-291/89 Interhotel v Commission and Case procedural requirements cited above C-304/89 Oliveira v Commission, both cited in foot- note 26 above.

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72 — Case 1/54, cited i n footnote 19 above. 73 — Case 2/54, cited in footnote 20 above.

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powers should be hedged around with rules only the Commission had access to the and procedures which are intended to documents which would show whether or ensure the rights of the defence, including not the contested Decisions had been the prohibition against what the Commis- authenticated in accordance with its Rules sion terms 'fishing expeditions'. The role of of Procedure, and the course of action that Court, as it emerges from the EC followed by the Court of First Instance Statute of the Court of Justice and its Rules cannot be criticised on this ground. 74 of Procedure, is rather different, and the provisions of these two instruments show that it is not, contrary to the affirmations of the Commission, restricted to basing its judgments on the sole evidence presented by the parties, or on the pleas in law which they have submitted. (d) The pertinence of the 'Polypropylene' judgments

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close of the oral procedure'. While stressing pylene would be relied upon, and indeed that the Court of First Instance has a would be 'decisive', in 'Soda ash'. discretion in this regard, the Court held, in accordance with established case-law, that that Court is not obliged to accede to a request to reopen the oral procedure unless the same two conditions are fulfilled. 76

72. I do not, however, consider this to be the case. The principal difference between the situations in these two sets of proceed- ings is that in Polypropylene, the new issue was raised by the parties after the oral 70. It was in this procedural context that procedure was over, while in the present the Court ruled that: proceedings, the issue of authentication of the contested Decisions was raised both by the applicants during the course of the written procedure and by the Court of First Instance of its own motion. Furthermore in Polypropylene, the appellants sought to rely on a purported obligation on the Court of First Instance to order measures of organisation of procedure, to order mea- '[indications] of a general nature concern- sures of inquiry and/or to reopen the oral ing an alleged practice of the Commission procedure, while in the present proceedings and emerging from a judgment delivered in the Commission is seeking to overturn the other cases, or statements made on the exercise by the Court of First Instance of its occasion of other proceedings, could not, as discretion in considering a new plea in law. such, be regarded as decisive for the purposes of the determination of the case then before the Court of First Instance.'

their reply or rejoinder, by means of an inquiry submitted after the oral procedure offer of further evidence submitted late for has closed, 79 and to requests to reopen the justifiable reasons, through a new plea in oral hearing. 8 0 This does not take away law based on a matter of law or of fact from the discretion of the Court of First which has come to light in the course of the Instance in either of these matters; it does proceedings, by requesting a measure of however follow that the oral procedure is organisation of procedure or a measure of the cut-off point beyond which the Court is inquiry, and at the oral hearing. 7 7 Once the under no obligation to comply with a oral hearing is closed, however, this latitude request to reopen the oral procedure, unless no longer exists; the case is henceforth the strict conditions of Article 41 of the entirely in the hands of the Court itself and, Statute are fulfilled. apart from the rather extreme possibility that a party could draw to the attention of the Court the existence of an absolute bar to proceeding with the case, 78 the parties are in effectively the same position, as regards the procedural steps they may take, as they would be if the case had already been decided.

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the contested Decisions which the Commis- revealed that the original of the decision sion had produced, and was able to find as had not been authenticated at the relevant an uncontested matter of fact that they had time'. 85 As this constitutes the appraisal by not been authenticated until after the the Court of First Instance of the evidence introduction of the originating applica- before it, it is not, 'save where the clear tions. The Court of First Instance was sense of that evidence has been distorted, a therefore relying not on 'indications of a point of law which is subject, as such, to general nature', but on documentary evi- review by the Court of Justice'. 86 dence specific to the contested Decisions, which was exactly what was missing in the Polypropylene cases. 82 It is significant in this regard that the Court held that the 'indications of a general nature ... could not as such be regarded as decisive for the purposes of the determination of the case then before the Court of First Instance'. 83

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IV — Conclusion

78. In the light of the foregoing, I recommend to the Court that it:

— Reject the appeals against the judgments of the Court of First Instance in Case C-286/95 P Commission of the European Communities v Imperial Chemical Industries plc and Joined Cases C-287/95 P and C-288/95 P Commission of the European Communities v Solvay SA as unfounded; and

— Order the appellant to bear the costs of the three appeals.