Opinion of the Advocate General — ECLI:EU:C:1997:361
Date: 1997-07-15
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Action for annulment;Appeal - unfounded
Origin: United Kingdom

Summary of the Judgment 
1. Procedure — Intervention — Admissibility — May be re-examined even where a 
previous order has held the intervention admissible 
(EC Statute of the Court of Justice, Art. 37, second para.) 
2. Acts of the institutions — Presumed lawful — Legally non-existent acts — Concept 
(EC Treaty, Art. 189 (now Art. 249 EC)) 
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SUMMARY — CASE C-234/92 P 
3. Appeals — Pleas in law — Plea alleging incorrect appraisal of the facts — Inad­
missible — Whether the Court of justice may review the appraisal of the evidence — 
Possible only where the clear sense of the evidence has been distorted — Refusal to 
reopen the oral procedure — Review by the Court — Limits 
(EC Treaty, Art. 168a (now Art. 225 EC); EC Statute of the Court of Justice, Art. 51, 
first para.) 
4. Procedure — Requests for measures of inquiry — Where the request is made after the 
oral procedure has been closed — Request that the oral procedure be reopened — 
Conditions for admissibility 
(Rules of Procedure of the Court of First Instance, Art. 62) 
5. Procedure — Oral procedure — Reopening — Whether the Court of First Instance is 
obliged to raise of its own motion issues concerning the regularity of the procedure by 
which the contested decision was adopted — No such obligation 
(Rules of Procedure of the Court of First Instance, Art. 62) 
6. Appeals — jurisdiction of the Court — Whether it may order measures of inquiry — 
Excluded 
(EC Statute of the Court of justice, Art. 54, first para.; Rules of Procedure of the Court 
of justice, Art. 113(2)) 
1. The fact that the Court has, by a 
previous order, given a person leave to 
intervene in support of the form of 
order sought by a party does not 
preclude a fresh examination of the 
admissibility of the intervention. 
2. Acts of the Community institutions are 
in principle presumed to be lawful and 
accordingly produce legal effects, even 
if they are tainted by irregularities, 
until such time as they are annulled or 
withdrawn. 
However, by way of exception to that 
principle, acts tainted by an irregularity 
whose gravity is so obvious that it 
cannot be tolerated by the Community 
legal order must be treated as having 
no legal effect, even provisional, that is 
to say they must be regarded as legally 
non-existent. The purpose of this 
exception is to maintain a balance 
between two fundamental, but some­
times conflicting, requirements with 
which a legal order must comply, 
namely stability of legal relations and 
respect for legality. 
From the gravity of the consequences 
attaching to a finding that an act of a 
Community institution is non-existent 
it is self-evident that, for reasons of 
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SHELL V COMMISSION 
legal certainty, such a finding is 
reserved for quite extreme situations. 
3. Pursuant to Article 168a of the Treaty 
(now Article 225 EC) and the first 
paragraph of Article 51 of the Statute 
of the Court of Justice, an appeal may 
rely only on grounds relating to the 
infringement of rules of law, to the 
exclusion of any appraisal of the facts. 
The appraisal by the Court of First 
Instance of the evidence put before it 
does not constitute, save where the 
clear sense of that evidence has been 
distorted, a point of law which is 
subject, as such, to review by the Court 
of Justice. 
It follows that, in so far as they 
challenge the appraisal by the Court 
of First Instance of the evidence placed 
before it in connection with the request 
that the oral procedure be reopened, an 
appellant's complaints cannot be exam­
ined in an appeal. 
On the other hand, the Court of Justice 
must examine the question whether the 
Court of First Instance committed an 
error of law in refusing a party's 
request that it reopen the oral proce­
dure and order measures of inquiry. 
4. If made after the oral procedure is 
closed, a request for measures of 
inquiry can be admitted only if it 
relates to facts which may have a 
decisive influence on the outcome of 
the case and which the party concerned 
could not put forward before the close 
of the oral procedure. The same applies 
with regard to the request that the oral 
procedure be reopened. It is true that, 
under Article 62 of its Rules of Proce­
dure, the Court of First Instance has 
discretion in this area. However, the 
Court of First Instance is not obliged to 
accede to such a request unless the 
party concerned relies on facts which 
may have a decisive influence on the 
outcome of the case and which it could 
not have put forward before the close 
of the oral procedure. 
5. The Court of First Instance is not 
obliged to order that the oral procedure 
be reopened on the ground of an 
alleged duty to raise of its own motion 
issues concerning the regularity of the 
procedure by which a Commission 
decision was adopted. Any such obli­
gation to raise matters of public policy 
could exist only on the basis of the 
factual evidence adduced before the 
Court. 
6. A request by a party that the Court of 
Justice order measures of inquiry for 
the purpose of ascertaining the circum­
stances in which the Commission 
adopted the decision which was the 
subject of the contested judgment goes 
beyond the scope of an appeal, which is 
limited to questions of law. 
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SUMMARY — CASE C-234/92 P 
On the one hand, measures of inquiry 
would necessarily lead to the Court 
ruling on questions of fact and would 
change the subject-matter of the pro­
ceedings commenced before the Court 
of First Instance, in breach of Arti­
cle 113(2) of the Rules of Procedure of 
the Court of Justice. 
On the other hand, an appeal relates 
only to the contested judgment and it is 
only if that judgment were set aside 
that the Court of Justice could, in 
accordance with the first paragraph of 
Article 54 of the Statute of the Court of 
Justice, deliver judgment itself in the 
case and examine possible defects in 
the decision that was challenged before 
the Court of First Instance. 
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