Opinion of the Advocate General — ECLI:EU:C:1997:358
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: Germany

summary form, in the originating 
application. 56 They may of course be 
developed and elaborated during the course 
of the written and oral procedures. More­
over, the trial procedure is conducted in the 
framework of the pleas and arguments put 
forward by the parties and on the basis of 
the evidence adduced and relied on by them 
during the proceedings. 
60. Accordingly, the possibility of raising 
pleas in law based on matters which have 
come to light subsequently is provided for 
in Article 48(2) of the Rules of Procedure 
of the Court of First Instance but, since it is 
exceptional, must be narrowly construed. 
56 — See Article 44(1) of the Rules of Procedure of the Court of 
First Instance. 
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OPINION OF MR COSMAS — CASE C-199/92 P 
In any event, it should not be overlooked 
that the possibility for the parties to raise 
pleas and submissions, to submit applica­
tions or to invoke facts is in principle 
limited to the end of the oral procedure. 57 
That is the significance of Articles 60 and 
61(2) of the Rules of Procedure of the 
Court of First Instance which lay down 
when the President is to declare the oral 
procedure closed. Thus, the closure of the 
oral procedure results in the parties' being 
precluded from altering the matters of law 
and fact in the pending case. 
61. Moreover, even when the Court is 
requested to examine a matter or plea 
which was submitted late, albeit within 
the temporal limits of the written proce­
dure, it assesses the extent to which that 
delay prevents the other party from effec­
tively defending its interests, pursuant to 
the principle of equality as between the 
parties, or impedes the Court in the perfor­
mance of its judicial tasks. 58 In the affir­
mative they are not examined. Extrapolat­
ing that reasoning to cases where pleas are 
raised and matters relied on after the 
closure of the oral procedure, I would 
observe that that is likely to affect the 
rights of the defence of the other party and 
at all events impedes by definition the work 
of the courts. In such a case they are being 
asked to adjudicate on a matter whose 
factual and legal aspects are constantly 
changing. 
62. It follows from the foregoing that it is 
not in principle open to the parties to 
invoke matters of fact and make submis­
sions after the closure of the oral proce­
dure. 59 That preclusion must indeed be 
interpreted even more strictly than the 
preclusion on the raising in principle of 
new submissions in the reply and rejoinder 
prior to closure of the written procedure. 
(iii.2.) Exceptions to the prohibition on 
raising pleas after closure of the oral 
procedure 
63. None the less, the rule enunciated 
above is in my view subject to exceptions. 
I believe there to be two possible grounds 
which might justify derogations from the 
prohibition on the submission of new pleas 
after the closure of the oral procedure. The 
first is where the issue raised out of time by 
the party falls within the category of those 
which may be examined by the Community 
judicature of its own motion. In that event 
there is not essentially a reversal of that 
prohibition but a relativization of its 
57 — That limitation is to be found in all national systems of 
procedure, stemming as it does from the fundamental 
principle of legal certainty and the proper administration 
of justice. 
58 — See judgment in Case 74/74 CNTA v Commission [1975] 
ECR 157, paragraph 4: also judgment in Case T-109/92 
Bassols v Court of Justice [1994] ECR II-105, paragraph 
67. 
59 — That is precisely the difference between the present case 
and the PVC, LdPE and Soda Ash cases. In the latter cases 
the parties' submissions as to the likely existence of formal 
defects in respect of the contested parts of the decision may 
have been raised belatedly but in any event before closure 
of the oral procedure. 
I - 4322 
HÜLS V COMMISSION 
effects, which will be examined in the next 
part of my Opinion; 60 the second excep­
tion is where the factual circumstances 
underlying the plea raised out of time by 
the party were not known to it earlier so as 
to enable submissions to be made on them 
at the appropriate time. 
(iii.2.1) Whether the matters in respect of 
which late submissions were made became 
known after the end of the oral procedure 
64. A derogation from the prohibition on 
raising new matters or pleas out of time, 
particularly where they were not known to 
the party concerned before closure of the 
oral procedure, must be accepted by Com­
munity procedural law. On the one hand, it 
follows from the general provision con­
tained in Article 48(2) of the Rules of 
Procedure of the Court of First Instance. 
Even though that paragraph belongs sche­
matically to the chapter concerning the 
written procedure, it refers generally to the 
submission of new pleas 'in the course of 
proceedings'. Consequently, as the Court 
has held, 61 it also includes the possibility of 
raising new pleas after the closure of the 
oral procedure. 62 It also flows from the 
fundamental right to judicial protection 
and the principle of the proper administra­
tion of justice, as implemented in the 
Community judicial system and in the 
corresponding systems of the Member 
States. 
65. One further observation is of particular 
relevance : the grounds which would justify 
a reopening of the oral procedure are the 
same which, a fortiori, justify reversal of a 
judgment in the event of an application for 
revision. The link between the legal issue 
examined here and that arising when an 
application for revision is made is in fact 
very close and of particular relevance for an 
understanding and solution of the present 
case. 
66. In accordance with the aforementioned 
provisions of Article 41 of the EEC Statute 
of the Court of Justice and Article 125 of 
the Rules of Procedure of the Court of First 
60 — See below paragraph 77 et seq. 
61 — Judgment in Case 77/70 Prelle v Commission [1971] ECR 
873, paragraph 7. 
62 — It should be noted that Article 64(4) of the Rules of 
Procedure of the Court of First Instance provides that 'each 
party may, at any stage of the procedure, propose the 
adoption (...) of measures of organization of procedure.' 
That request may be based on the existence or probability 
of new factual matters. 
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OPINION OF MR COSMAS — CASE C-199/92 P 
Instance, an application for revision must 
be based on the discovery of a fact which 
satisfies the following conditions: 
— it is relevant to the solution of the 
dispute; 
— it was not known to the party and to 
the Court prior to judgment being 
given; 
— a period of three months has not 
elapsed after it came to the notice of 
the person seeking revision. 
67. I am of the opinion that an application 
for reopening of the oral procedure should 
be upheld when the analogous conditions 
to those laid down for an application for 
revision to be deemed admissible are met. If 
it were otherwise, we would be faced with 
the legal absurdity that the party learning 
of a relevant matter after closure of the oral 
procedure not only would not be able to 
make submissions on it prior to delivery of 
judgment, but would also lose the right to 
apply for revision because that matter had 
become known prior to final judgment by 
the Court. 
68. It will be necessary, then, to allow 
application to be made of the Community 
judicature for the reopening of the oral 
procedure, whenever a fact of importance 
to the judgment to be given, which was 
unknown to the Court and to the party 
seeking a reopening, becomes known prior 
to closure of the oral procedure. It remains 
to be determined whether it is essential for 
the application for reopening of the oral 
procedure to be submitted within three 
months of the date on which the fact came 
to the applicant's knowledge by analogy 
with Article 125 of the Rules of Procedure 
of the Court of First Instance in the case of 
an application for revision. Analogous 
interpretation of a procedural provision — 
particularly of a time-limit conditioning the 
exercise of a right — does not appear to be 
applied in the Community legal order in the 
same way as for other provisions in gen­
eral. Nevertheless, it would be contrary to 
the fundamental principles requiring the 
speediest and best possible administration 
of justice for a party to be allowed com­
plete freedom of choice as to the moment 
when it wishes to submit its application for 
reopening of the procedure. Such applica­
tion will have to be made not only within a 
reasonable time of the date on which the 
relevant fact became known (which period 
ceases to be reasonable, again in my view, 
after the expiry of a three-month period) 
I - 4324 
HÜLS V COMMISSION 
but without delay, so as to avoid any 
further delay in the delivery of the judg­
ment. 
69. In relation to the present case, I con­
sider first and foremost that a fact which, if 
upheld, immediately entails annulment of 
the contested act for infringement of an 
essential procedural requirement is in the 
nature of a fact of significance for the 
judgment to be given, thus justifying 
reopening of the oral procedure in the same 
way as revision of the judgment delivered 
would be justified. 63 It remains to deter­
mine the moment in time when it became 
known to the appellant so as to demon­
strate whether it was unknown to it until 
the closure of the oral procedure and 
whether it was brought before the Court 
of First Instance within a reasonable time. 
In the present case what is of relevance is 
when matters came to the appellant's 
knowledge which were capable of giving 
rise in its mind to doubts as to the formal 
legality of the contested Commission act 
and leading it on that ground to seek 
further measures of inquiry. 
70. Certain preliminary observations are in 
my view essential. 
71. First I consider that the lack of knowl­
edge, as a precondition of the submission of 
new pleas, must be strictly interpreted. 64 
The party seeking a reopening of the 
procedure, in so far as it has brought 
proceedings against an act, is obliged to 
show all possible diligence in the marshal­
ling of evidence in support of its arguments. 
Evidence of that kind is not only that which 
proves beyond any doubt the existence of a 
defect in the contested act capable of 
entailing its annulment but also evidence 
giving rise albeit to a mere suspicion that 
careful examination is likely to reveal a 
good ground for annulment of the act. If 
the party has ignored evidence coming 
within the latter category during the whole 
course of the written, evidential and oral 
procedures, it cannot rely on other facts 
which corroborate and supplement the 
suspicions which the original evidence 
ought to have aroused in it, in order to 
succeed in its claim for reopening of the 
procedure. 
72. In the present case the moment when 
the fact of importance for the judgment 63 — It could be argued that the disclosures by the Commission 
representatives in the PVC cases, on which the applicant's 
pleading was founded, do not constitute 'facts' but rather 
an indirect means of covertly putting forward a series of 
grounds of annulment of the Polypropylene decision. 
Under that interpretation those grounds were raised out 
of time and are therefore inadmissible. I do not think that 
the above interpretation of the pleading needs to be 
followed, though it does not lack logical support. The 
pleas in law of the applicant presuppose a factual 
circumstance, namely breaches by the Commission on 
the adoption of the Polypropylene decision. What is 
important is to determine the moment in time when the 
applicant at first instance learnt or ought to have learnt of 
those irregularities. 
64 — That viewpoint is also echoed by the Court when it 
examines the admissibility of an application for revision. It 
has been made clear in case-law that the application for 
revision, owing to its exceptional nature, is subject to 
particularly strict criteria of admissibility. 'Total absence of 
knowledge' of the fact underpinning the application for 
revision is required; that is not the case if knowledge of the 
fact was possible during the course of the original 
proceedings. See judgment in Case 116/78 Rev Bellintani 
v Commission [1980] ECR 23. 
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OPINION OF MR COSMAS — CASE C-199/92 P 
was learned, which determines whether the 
application for reopening the procedure 
was made within the time-limit, coincides 
with the moment in time when the party 
making that application had available to it 
sufficient evidence of suspicions that the 
contested act was likely to reveal certain 
substantial procedural defects. Thus, the 
relevant moment in time is not when the 
party's suspicions were confirmed or given 
more concrete form, but rather the moment 
when evidence came to light capable of 
giving rise to those suspicions. When the 
'decisive fact' of importance to the judg­
ment consists of doubts as to the lawfulness 
of an act which merit further examination, 
the party is presumed to have knowledge of 
that fact at the time when it obtains access 
to the evidence, albeit inchoate, giving rise 
to those doubts. If it disregards or under­
estimates that evidence it loses the right to 
raise it exceptionally after the expiry of the 
procedural time-limits. Thus, it is of rele­
vance to establish not only when the party 
pleading the fact learnt of that fact but also 
when it ought to have learnt of it if it had 
shown due diligence. 65 
73. In the present case, especially on the 
issue as to the existence or not of an 
authenticated original of the Commission's 
Polypropylene Decision which, as stated 
above, is also the relevant issue, I conclude 
as follows: the appellant maintains that the 
evidence giving rise to doubts as to the 
existence of an authenticated original came 
to its notice no earlier than on the occasion 
of the statements made by the Commission 
officials at the hearing in the PVC cases. 
According to those disclosures, which were 
made on 10 December 1991, application of 
Article 12 of the Commission's internal 
rules of procedure, and other rules, con­
cerning the form and procedure for adop­
tion of its acts, had become attenuated over 
time and was disregarded not only in the 
case of the PVC decision but also in other 
related cases. 
74. That evidence is, none the less, weighty 
inasmuch as it concerns the probability that 
an infringement of an essential procedural 
requirement occurred on adoption of the 
Polypropylene Decision at issue. Yet they 
do not constitute unknown facts of decisive 
importance to the judgment in the sense 
that they create doubts for the first time as 
to the formal legality of the contested act; 
they simply further reinforce the suspicions 
already aroused by the documents in the 
file which were available to the party prior 
to commencement of proceedings. The duty 
of diligence incumbent on the latter 
65 — It should be observed that the party who through its own 
fault did not learn in due time of a fact cannot plead the 
delay in its information in order to succeed in its 
application for reopening of the oral procedure. That 
solution was adopted by the Court in Case 56/70 Mandelli 
v Commission [1971] ECR 1, in regard to the examination 
as to the admissibility of an application for revision. The 
party seeking revision relied on a report by the Italian 
authorities of which it learnt only after the end of the 
original proceedings. However, the Court held that the 
applicant could not have been unaware of the existence of 
that report and that there was nothing to prevent it from 
having 'suggested that the Court should make a prepara­
tory inquiry directed towards the production... of the 
document in question and any other relevant information 
in the hands of the Italian administration.' On those 
grounds the application for revision was refused. 
The Court will refuse an application for the adoption of 
further measures of inquiry submitted after closure of the 
oral procedure where the party had the possibility of 
submitting the application prior to closure thereof (judg­
ment in Case C-415/93 Bosman [1995] ECR I-4921, 
paragraph 54). 
I - 4326 
HÜLS V COMMISSION 
required it to have already discerned the 
likelihood of the non-existence of an 
authenticated original at the time when it 
lodged its action or at least by the time of 
closure of the oral procedure. 66 
75. Furthermore, the case-file must be 
complete and accessible to the parties so 
as to enable verification of its contents, as 
also the omission of other relevant mate­
rial. That is the only way of ensuring 
equality of the means at the parties' dis­
posal, at the same time as affording them 
the possibility of establishing whether a 
certain document exists and indeed whe­
ther in regard to its adoption the formal­
ities required by the law were observed, in 
the same way as for example the question 
whether the body which adopted the act in 
question was competent to do so, whether 
it was lawfully convened (in the case of 
collegiate bodies) or whether it was law­
fully constituted etc. Consequently, in the 
light of the foregoing considerations con­
cerning also the rules on the burden of 
proof, it was sufficient for the applicant to 
raise at the appropriate time the issue of the 
possible absence of an original of the act in 
order for the Court of First Instance to 
order the carrying out of further measures 
of inquiry and, in particular, to order the 
Commission to produce evidence in its 
possession to prove or disprove the exis­
tence of the act. 
76. Thus, the fact first giving rise to doubts 
as to the observance of the formal pre­
conditions on the adoption of the Polypro­
pylene decision by the Commission is 
constituted by the omission from the Court 
file of the case of such evidence as would 
prove beyond doubt observance of the 
formal preconditions in question. 67 Tem­
porally it falls at a point in time clearly 
prior to the closure of the oral procedure. 
For that reason I do not consider that any 
fact of importance for the judgment came 
to the applicant's notice subsequently so as 
to permit the application for reopening the 
oral procedure to be made out of time. 68 
66 — Thus, the applicant was precluded from validly raising the 
substantial procedural defects after closure of the oral 
procedure. Because, either the Commission's infringements 
in that connection were apparent beyond doubt from the 
documents in the file, when they would have to have been 
raised not later than in the reply, or the documents in the 
file simply created doubts as to whether essential proce­
dural requirements had been observed or not, when the 
applicant ought to have raised them at the appropriate 
time, at the same time requesting the Court of First 
Instance to conduct measures of inquiry with regard to 
that point. 
67 — It could be argued that the first suspicions were already 
aroused on communication to the appellant of the 
Polypropylene decision, inasmuch as it is not apparent 
from the text notified that the essential formal require­
ments provided for in Article 12 of the Commission's rules 
of procedure had been observed. 
68 — Even though the foregoing analysis may appear severe to 
the party raising the plea, it is in my opinion the most 
appropriate. On the other hand, I do not agree with the 
viewpoint of the Court of First Instance in the above-
mentioned Soda Ash and LdPE cases (footnotes 8 and 9 
respectively) in which it was held that the applicants were 
right to await final judgment in the PVC cases before 
making the relevant factual submissions in their own cases. 
Irrespective of whether the disclosures made during the 
course of the procedure in the PVC cases were unknown or 
not to the parties to the other proceedings, those parties 
were bound in any event to examine diligently the formal 
legality of the act concerning them, even if only from a 
review of the case-file. The subsequent disclosures simply 
reinforced suspicions that the Commission had been guilty 
of irregularities. 
Again, the appellant cannot rely on the presumption of 
legality of the contested act as a reason why it could not 
conceive that behind its apparent completeness lay sig­
nificant defects. From the moment when a person chal­
lenges an act of a Community body before the courts, the 
presumption of legality ceases to operate against or in 
favour of that person. On the one hand, as has already 
been observed (see paragraph 36), the presumption of 
legality cannot be availed of in order to refute an 
admissible plea by the applicant going to the unlawfulness 
of the act. For its part, the applicant may not rely on the 
same presumption as a justificatory ground for its omission 
to identify at the appropriate time a legal defect in the 
contested act. 
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OPINION OF MR COSMAS — CASE C-199/92 P 
(iii.2.2) Whether the plea raised out of time 
is required to be reviewed by the Court of 
its own motion 
77. It remains to be examined whether the 
consequences of the fact that a plea is 
raised out of time may be overcome in the 
event that that plea is to be reviewed of the 
Court's own motion. Indeed, the absence of 
an authenticated original of the Commis­
sion's decisions constitutes, as already sta­
ted, an infringement of an essential proce­
dural requirement and as such may be 
reviewed by the Community judicature of 
its own motion. 6 9 The question arises, 
then, whether the Court of First Instance 
would need to proceed to an examination 
of the pleas of the parties raised out of time 
and to set aside the contested act or at least 
to order measures of inquiry to be con­
ducted in order to establish the existence of 
any formal defect. 
78. In order to answer that question it is 
necessary to examine the limits of the 
Court's ex officio power of review. 70 In 
cases where a ground of annulment is 
examined of the Court's own motion, the 
Court, without any application being made 
to it, may investigate on its own initiative 
the documents in the file in order to 
establish whether that plea is well founded. 
Investigation of its own motion by the 
judicature, as far as the facts are concerned, 
is in principle confined to the documents in 
the file submitted for judgment. Only if it 
appears from those documents that an act 
was adopted in breach of an essential 
procedural requirement, is the judicature 
obliged to annul the act. Certainly, it may 
avail itself of its discretion not to be 
satisfied by the evidence of the file and to 
order the carrying out of further measures 
of inquiry. That investigation is however 
optional and not mandatory. The fact alone 
that starting from certain indications from 
the already existing evidence concerning 
issues reviewed of the Court's own motion, 
the Court could have pursued its investiga­
tion further in order possibly to establish 
that the contested act is unlawful, does not 
suffice in order to set aside the judgment as 
having been delivered in breach of the rules 
on ex officio judicial review. 
79. In the present case it is not apparent 
from the contested judgment, nor is it 
submitted that a fully proven factual sub­
mission was made, that there was a sub­
stantial procedural defect in the contested 
act which ought to have been established of 
its own motion by the Court of First 
Instance. Furthermore, the Court of First 
Instance did not infringe the rules on 
review of its own motion simply by virtue 
of the fact that it did not investigate in 
depth whether the requisite formalities and 
procedural requirements had been observed 
on adoption of the Commission's Polypro­
pylene decision. As it correctly held in the 
judgment, '...Even though the Community 
court, in an action for annulment brought 
under the second paragraph of Article 173 
of the EEC Treaty, must of its own motion 
consider the issue of the existence of the 
contested measure, that does not mean that 
in every action brought under the second 
69 — See footnote 36 above. 
70 — See also section containing analysis of review by the Court 
of its own motion. 
I - 4328 
HÜLS V COMMISSION 
paragraph of Article 173 of the EEC Treaty 
the possibility that the contested measure is 
non-existent must automatically be investi­
gated'. 71 
It follows from the foregoing that the 
application for reopening of the procedure 
submitted by the appellant prior to delivery 
of the judgment at first instance was rightly 
dismissed. All the grounds of appeal to 
contrary effect are unfounded and must be 
rejected. 
B — Pleas concerning the finding by the 
Court of First Instance of infringements of 
Article 85 of the Treaty 
80. In the second part of its application the 
appellant company points to a series of 
errors alleged to have been made by the 
Court of First Instance in its review and in 
the finding of the relevant facts in the 
present case. 
81. The question arises, as the Commission 
rightly points out, whether and under 
which conditions the manner in which the 
facts were found by the court trying the 
substantive issues, on the one hand, and the 
content of those findings, on the other, 
constitute points of law in accordance with 
Article 51 of the EEC Statute of the Court 
and, as such, whether they may be reviewed 
by the appellate jurisdiction. 
The issue of admissibility will be examined 
in the context of the investigation into the 
pleas raised by the appellant. In its plead­
ings, correctly construed, Hüls is challen­
ging the findings of the Court of First 
Instance on three main issues: its participa­
tion, first, in regular meetings of Polypro­
pylene producers, secondly in price initia­
tives and, thirdly, in the adoption of 
measures designed to facilitate the imple­
mentation of the price initiatives. 
(1) Arguments of the parties 
(a) Participation in regular meetings 
82. According to the appellant, the Court 
of First Instance, in contravention of the 
rules of Community law on evidence, 
arrived at the mistaken conclusion that 
the company participated in meetings of 
71 — It might be observed that the obligation of judicial review 
of the Court's own motion is narrower than the duty of 
diligence incumbent on the parties which, as we have seen, 
obliges them to identify and then to make submissions in 
due time on the evidence implying possible procedural 
irregularities in the contested act. That finding should not 
occasion surprise. Review by the judicature of its own 
motion in annulment proceedings was not provided for in 
order to remedy omissions of the parties. It is intended to 
safeguard the legal order by identifying and condemning 
manifest and serious irregularities in acts adopted by the 
Community bodies. When those irregularities are not 
apparent from the file, the Community judicature is not 
obliged to conduct further measures of inquiry. The option 
to do so is a discretionary power and not an obligation. 
I - 4329 
OPINION OF MR COSMAS — CASE C-199/92 P 
Polypropylene producers from the end of 
1978 or the beginning of 1979. In actual 
fact, according to the appellant, the Court 
of First Instance based its finding, first, on a 
reply from a competing company, ICI, to a 
question from the Commission which states 
nothing concerning the duration of the 
appellant's participation in those meetings, 
secondly, on various tables in the posses­
sion of ICI, ATO and Hercules which, 
however, constitute particularly subjective 
evidence, just as there are several views as 
to how they were assembled, and do not 
enable conclusions to be drawn concerning 
the duration of participation in the relevant 
meetings and, finally, on the appellant's 
reply to the request for information 
addressed to it by the Commission from 
which it was inferred, against logic and in 
conjunction with the appellant's participa­
tion in the meetings in 1982 and 1983, that 
the company also participated 'regularly' in 
earlier meetings (see paragraphs 114 to 118 
of the judgment appealed against). Conse­
quently, Hüls maintains, the Court of First 
Instance based its conclusion on that point 
on evidence lacking conviction and, sub­
stantively, solely on the information pro­
vided by the competitor undertaking, ICI. 
In that connection the appellant relies on 
the Court's judgment in Duraffour v Coun­
cil. 72 
Furthermore, the appellant maintains that, 
by requesting it to provide sufficient evi­
dence to show that its participation in the 
meetings was without any anti-competitive 
intention (paragraph 126 of the judgment 
appealed against), the Court of First 
Instance infringed the rules governing the 
burden of proof and violated the presump­
tion of innocence of the accused by, in fact, 
requiring the appellant to prove a negative 
fact: its non-participation in anti-competi­
tive conduct. In that connection reference is 
made to the Opinion of Advocate General 
Sir Gordon Slynn in Musique Diffusion 
Française v Commission. 73 The appellant 
further maintains that the Court of First 
Instance, by inferring its regular participa­
tion in the meetings of Polypropylene 
producers without there being any prima 
facie evidence for that, is essentially estab­
lishing a presumption against the appellant, 
requiring the appellant to rebut that pre­
sumption, thus reversing the rules on the 
burden of proof. 
83. The Commission considers that in its 
arguments Hüls is calling in question the 
facts as found by the Court of First Instance 
and that, accordingly, its plea in that 
connection must be rejected as inadmissi­
ble. In the alternative it stresses that the 
Court of First Instance did not base its 
finding concerning the period of time 
during which Hüls participated in the 
meetings of polypropylene producers solely 
on information supplied by ICI (paragraph 
114 of the judgment appealed against) but 
also on the contents of the tables men­
tioned in paragraph 115 of the judgment 
appealed against. At the same time the 
Commission considers that paragraphs 116 
and 117 of the judgment appealed against 
demonstrate the inaccuracy of the informa­
tion produced by Hüls and hence remove 
the doubts in connection with the conclu­
sions drawn in paragraphs 114 and 115. In 
those circumstances there can be no ques­
tion, in the Commission's view, of a rever­
sal of the burden of proof. Nor may any 
such thing, moreover, be upheld in connec­
tion with paragraph 126 of the judgment 
72 — Judgment of the Court in Case 18/70 Duraffour v Council 
[1971] ECR 515. 
73 —Judgment in Cases 100/80 to 103/80 Musique Diffusion 
Française v Commission [1983] ECR 1825. 
I - 4330 
HÜLS V COMMISSION 
appealed against. In that paragraph the 
Court of First Instance requires Hüls to 
substantiate the grounds on which it main­
tains that its participation in substantively 
unlawful evaluations are none the less not 
contrary to the rules on competition. That 
requirement by the Court of First Instance 
cannot be deemed to be contrary to the 
rules governing the burden of proof nor to 
violate the presumption of innocence. 
(b) Participation in price initiatives 
84. In that limb of its arguments the 
appellant challenges the findings at first 
instance that it took part in the periodic 
meetings of polypropylene producers to 
determine price targets and that it adhered 
to initiatives in that regard (paragraphs 167 
and 168 of the judgment appealed against). 
Hüls maintains that its participation was 
proven only in a limited number of meet­
ings. Furthermore, the fact that the Court 
of First Instance infers from that participa­
tion its collaboration in the price initiatives, 
requiring evidence to the contrary (para­
graph 168 of the judgment appealed 
against), amounts to a reversal of the 
burden of proof and a violation of the 
presumption of innocence. That is all the 
more so, according to Hüls, since it rarely 
followed the target prices and the relevant 
price instructions which it issued in that 
connection were merely of an internal 
nature within the undertaking. The whole 
issue is linked, moreover, to a misunder­
standing on the part of the Commission of 
the concept of a concerted practice: accord­
ing to Hüls, for there to be a concerted 
practice the matters which were the subject 
of consultations must be implemented. The 
fact remains, according to the appellant, 
that its participation in all the price initia­
tives was not proven and, therefore, the 
deliberately vague finding by the Court of 
First Instance on that point (paragraph 173 
of the judgment appealed against) is in 
contradiction with the facts as found and 
infringes Article 190 of the Treaty. At the 
same time, Hüls calls in question the 
evidentiary value of the reply by ICI to 
the questions addressed to it by the Com­
mission (see paragraph 174 of the judgment 
appealed against) in connection with the 
appellant's participation in the price initia­
tives, certainly from as early as 1979. In 
light of the foregoing observations, finally, 
it casts doubt on the judgment at first 
instance holding it responsible for partici­
pation in the price initiatives (paragraph 
177 of the judgment appealed against). 
85. According to the Commission, in the 
present case the requirement to produce 
concrete evidence in support of the sub­
mission that participation in the meetings 
of polypropylene producers did not entail 
collaboration in the price initiatives which 
formed the subject-matter of those meet­
ings (see paragraph 168 of the judgment 
appealed against) does not amount to a 
reversal of the burden of proof. In the same 
way the Court of First Instance adjudged 
that the price instructions issued by the 
appellant were not purely of an internal 
nature (paragraph 173 of the judgment 
appealed against). Finally, the reference to 
Article 190 of the Treaty, in relation to the 
reasoning contained in the judgment 
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OPINION OF MR COSMAS — CASE C-199/92 P 
appealed against, was, in the Commission's 
view, of no legal significance whatever: it 
also stresses that the calling in question of 
the value as evidence of the information 
supplied by ICI constitutes an inadmissible 
submission, inasmuch as it is directed 
against the appraisal of the evidence by 
the court trying the substantive issues. 
.(c) The measures designed to facilitate the 
implementation of the price initiatives 
86. In that limb of its arguments the 
appellant challenges, first, the finding by 
the Court of First Instance that, by parti­
cipating in the meetings at which a series of 
measures were adopted in order to create 
conditions favourable to price increases, 
Hüls subscribed to those measures, inas­
much as it adduces no evidence to the 
contrary (paragraph 190 of the judgment 
appealed against). According to the appel­
lant, such reasoning based on an ill-defined 
reference to a 'set of measures' and which 
ignores the legal arguments and evidence 
adduced by Hüls at first instance, is not 
consistent with the obligation to provide a 
statement of reasons as provided for in 
Article 190 of the Treaty, or with the rules 
concerning the correct appraisal of evi­
dence. 
87. Particularly in connection with the 
system of account leadership, the appellant 
observes, on the one hand, that such a 
system was never adopted but was merely 
the subject of discussions and proposals 
(contrary to what was deemed to be the 
case in paragraph 191 of the judgment 
appealed against) and, on the other, that 
Hüls was never a leader within the meaning 
of that system, although it was a supplier in 
isolated cases. The system was never put 
into operation, as is apparent from the 
findings made in paragraph 192 of the 
judgment appealed against where there is 
mention of an 'attempt' to put it into 
operation and of the conduct which 'should 
not have been' followed. 
88. As regards, finally, target tonnages and 
quotas, Hüls points out that the Court of 
First Instance imputed liability to it based 
on the mistaken finding that it regularly 
participated in the meetings of polypropy­
lene producers (paragraph 231 of the 
judgment appealed against). Moreover, 
the reliance placed by the Court of First 
Instance on mention of the name Hüls in 
certain tables as supplementary evidence 
(paragraph 232) would appear to give the 
impression that there was a series of 
indications as to the participation by Hüls 
in the commission of the infringement. 
However, those tables, in light of the 
foregoing arguments, do not, in the appel­
lant's view, constitute a reliable source, nor 
do they permit the inference of the conclu­
sions drawn from them by the Court of 
First Instance. 
89. The Commission observes, first, in 
connection with the criticisms made by 
the appellant of paragraph 190 of the 
judgment appealed against, that they are 
I - 4332 
HÜLS V COMMISSION 
based on an incomplete reading of the 
judgment of the Court of First Instance. 
Moreover, the arguments by Hüls concern­
ing the system of account leadership dis­
regard the finding by the Court of First 
Instance (paragraphs 192 and 193) that 
that system was partially operational for 
two months, even though the parties con­
cerned were dissatisfied by its results. 
90. As regards the target tonnages and 
quotas, criticism is levelled by Hüls at the 
findings made by the Court of First 
Instance in paragraphs 231 and 232, which 
are said to disregard both the existing 
evidence and the precise content of the 
tables, as is apparent from paragraph 233 
of the judgment appealed against. Conse­
quently, the appellant's arguments are inad­
missible, inasmuch as they refer to the 
appraisal of the evidence by the Court of 
First Instance. 
(2) Legal appraisal of the pleas raised 
(a) Admissibility 
91. As already stated, in accordance with 
Article 168a of the EC Treaty and Arti­
cle 51 of the EEC Statute of the Court of 
Justice, an appeal is limited to points of 
law. It follows from those provisions, as the 
Court has consistently held, that an appeal 
can only be based on grounds of an 
infringement of rules of law to the exclu­
sion of any appraisal of the facts. There­
fore, the appellate court does not review 
the appraisal of the evidence by the court 
trying the substantive issues but only whe­
ther an admissible plea has been raised that 
the court below has misdirected itself by 
distorting the clear sense of the evidence. 
The Court has jurisdiction under the afore­
mentioned Article 168a of the EC Treaty to 
review the legal classification of the facts as 
found, as well as the conclusions drawn 
from those facts by the Court of First 
Instance. 74 Thus, the Court is not compe­
tent to find the facts or, in principle, to 
examine the evidence accepted by the 
Court of First Instance in connection with 
those facts. Provided that the evidence was 
adduced and relied on lawfully and in 
accordance with the rules and general 
principles of law relating to the burden of 
proof and the procedural rules governing 
the obtaining of evidence, the Court of First 
Instance is competent to appraise the value 
to be given to the evidence before it. 75 
92. On the basis of the foregoing, it should 
be observed that the main thrust of the 
74 — See recent judgment in Commission v Brazzelli Lualdi, 
cited in footnote 31 (paragraphs 48 and 49) and the order 
in San Marco Impex Italiana v Commission, cited in 
footnote 7 (paragraph 39). 
75 — See Commission v Brazelli Luaidi, cited in footnote 31 
(paragraph 66) and San Marco Impex Italiana v Commis­
sion, cited in footnote 7 (paragraph 40). 
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OPINION OF MR COSMAS — CASE C-199/92 P 
appellant's arguments is aimed at the 
appraisal of the existing evidence by the 
Court of First Instance on the basis of an 
essentially different interpretation of that 
evidence. In that context the evidential 
weight of various elements is called in 
question, such as the information supplied 
by ICI (paragraphs 114 and 174 of the 
judgment appealed against), the evidence 
gleaned from various tables (paragraphs 
115 and 232 of the judgment) or that 
contained in notes of meetings of the 
polypropylene producers (paragraphs 191 
and 192 of the judgment). In the appellant's 
view, that evidence cannot warrant the 
conclusions arrived at by the Court of First 
Instance concerning the participation by 
Hüls in the meetings of polypropylene 
producers during the whole of the period 
imputed to it, and its collaboration in the 
initiatives undertaken at those meetings. In 
doing so, however, the appellant is impugn­
ing the substantive evaluation of the evi­
dence without pleading and proving that 
the Court of First Instance distorted the 
clear sense of the evidence, and conse­
quently the allegations made in that regard 
are inadmissible and must be rejected. 76 
Only in regard to the allegation of a 
reversal of the burden of proof by the Court 
of First Instance and the attendant violation 
of the presumption of innocence enuring to 
the appellant's benefit, does Hüls impute to 
the judgment at first instance an error 
reviewable on appeal. 77 
(b) Whether the pleas are well founded 
93. In my opinion the Court of First 
Instance in the judgment appealed against 
did not infringe the rules on the burden of 
proof or the general principle of observance 
of the presumption of the innocence of the 
accused. Concerning those issues I refer to 
the analysis set out in the relevant para­
graphs of my Opinion in the Enichem and 
Montecatini cases. 78 
76 — It is true that in all its arguments going to the legal content 
of the second part of the appeal the appellant is in fact 
seeking an elucidation by the appeal court in accordance 
with Article 51 of the EEC Statute of the Court. Moreover, 
it is worth noting that, under Article 112(1)(c) of the Rules 
of Procedure of the Court the appeal must contain, inter 
alia, 'the pleas in law and arguments relied on'. Strict 
adherence to the letter of that provision would perhaps, in 
light of the foregoing, lead to the conclusion also reached 
by the Commission that the whole of the arguments 
contained in the second part of the notice of appeal must 
be rejected as inadmissible on account of a lack of 
precision. I consider, however, that such a difficulty should 
e provided for in pleadings that leave no margin of legal 
appreciation at the appellate level. Where that is not done, 
and notwithstanding the margin of appreciation that must 
be left to the Court on that point, the best possible 
administration of justice indeed militates in favour of an 
interpretative approach which, by following the rules of 
grammar and logic, brings out the pleas in law contained 
in the pleading without however discovering them where, 
they do not exist. 
77 — It could be wondered whether, in the context of the 
interpretative approach adopted by the appellant in its 
pleading, what it is essentially pleading is the bad reason­
ing of the judgment appealed against. Such could be the 
inference to be drawn, for example, from the appellant's 
submission that the Court of First Instance based its 
conclusion, in connection with the appellant's participa­
tion in the meetings of polypropylene producers from the 
end of 1978 or the beginning of 1979, solely on the reply 
by ICI to the request tor information. Yet I do not believe 
that it is the reasoning of the judgment in itself at which 
the appellant is levelling its criticism, given that it concedes 
that the Court of First Instance relies in that connection on 
other evidence as well (the tables mentioned in paragraph 
115; but see also paragraph 116) whose probative force is 
simply refuted by the appellant. Thus, the plea is merely 
one going to appraisal of the existing factual evidence. 
78 — See paragraph 50 et seq. of my Opinion in Case C-49/92 P 
Commission v Enichem delivered today, and paragraphs 
53 to 68 of my Opinion in Case C-235/92 P Montecatini v 
Commission, also delivered today. 
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HÜLS V COMMISSION 
V — Conclusion 
94. In light of all the foregoing I propose that the Court should: 
(1) Dismiss in its entirety the appeal brought by Hüls Aktiengesellschaft; 
(2) Dismiss the intervention; 
(3) Order the intervener to pay its costs; 
(4) Order the appellant to pay the remaining costs. 
I - 4335