Opinion of the Advocate General — ECLI:EU:C:1997:360
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, at the time of the 
originating application or, in any event, before closure of 
the oral procedure. For an examination of the grounds on 
which I consider that the pleas and claims set out in the 
pleading were submitted out of time and ought not to have 
been considered by the Court of First Instance, I would 
refer to the analysis at paragraphs 57 to 79 of my Opinion 
in Hüls v Commission, 
18 —Moreover, of the procedural defects relied on, the non­
existence of an authenticated original of the Commission's 
decision, under Article 12 of its Rules of Procedure, is the 
most decisive. This defect subsumes within it the other 
irregularities relied on by the appellant (see in this regard 
paragraph 33 of my Opinion in Hüls v Commission). 
However, the Court of First Instance did not find concrete 
evidence of those defects in any of the documents before it, 
nor did the appellant adduce any such evidence. Thus, 
since the infringement of the formal requirements laid 
down in Article 12 of the Commission's Rules of Proce­
dure was not sufficiently demonstrated in law it was not 
possible to infer with any certainty, first, that the decision 
notified was altered after its adoption by the Commission, 
that the Commission did not adopt the decision in all the 
languages provided for by the Rules of Procedure and, 
finally, that there was any substantial procedural defect in 
regard to the rules concerning the reasoning and notifica­
tion of Commission decisions. The pleading of 2 March 
1992 merely mentions suspicions of possible irregularities 
by the Commission on adoption of the Polypropylene 
decision. Yet mere suspicions cannot in any event suffice in 
order to bring about annulment of the contested decision. 
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HOECHST V COMMISSION 
of First Instance for appraisal do not allow 
the inference that the framers of the 
contested decision committed substantial 
irregularities, it remains to examine whe­
ther that same evidence justified reopening 
the oral procedure with a view to ordering 
fresh measures of organisation of proce­
dure. 
(a) Arguments of the parties 
35. The appellant maintains that, in its 
pleading of 2 March 1992, it requested the 
Court of First Instance, on the one hand, to 
reopen the oral procedure under Arti­
cles 62 and 64 of its Rules of Procedure 
and, on the other, to adopt measures of 
organisation of procedure under Arti­
cles 65 and 66 of those Rules. It also 
considers that, contrary to the Commis­
sion's assertions, the Court of First Instance 
does not enjoy unlimited discretionary 
power in responding to such applications 
and that that response must be examined in 
the context of the review conducted by the 
appellate jurisdiction. In order to appraise 
the legality of the judgment at first 
instance, it is essential, in Hoechst's view, 
to appraise the objective pursued by the 
application for reopening of the procedure. 
Where that application seeks the adoption 
of measures of inquiry with a view to 
making new findings of such a nature as to 
have a decisive effect, in which case those 
matters will have to be ventilated in fresh 
pleadings and hearings, the possibility open 
to the Court of First Instance is trans­
formed, in Hoechst's view, into an obliga­
tion to reopen the oral procedure and to 
adopt measures of inquiry under the rules 
governing the burden of proof. Those rules 
render mandatory the investigation of evi­
dence crucial to the outcome of the case. In 
Hoechst's view, the need for there to be an 
examination in greater detail of the exis­
tence of substantial procedural defects 
vitiating the contested decision raised by 
it is dictated by a whole series of procedural 
and substantive rules of Community law. 
Thus the refusal by the Court of First 
Instance is, as far as the appellant is 
concerned, contrary to both Article 62 
and Articles 65 and 66 of the Rules of 
Procedure of the Court of First Instance. 
That Court was bound, on the basis of the 
application made by the appellant but also 
of its own motion, to investigate, in light of 
the considerations set out in the pleading of 
2 March 1992, all the matters which may 
have enabled it to establish whether or not 
the Polypropylene decision was adopted 
lawfully. 
36. The appellant also maintains that the 
Court of First Instance did not reject the 
pleas in its pleading on the ground that they 
were formulated out of time but rather 
examined them in detail. None the less, in 
Hoechst's submission, although it was 
under an obligation to do so, the Court of 
First Instance neglected to examine them 
not only in regard to non-existence but also 
in regard to infringement of essential for­
mal requirements. In any event, again in 
Hoechst's submission, the Commission 
cannot be heard to say that the pleading 
was submitted out of time. In fact, for the 
Commission to make that allegation is 
tantamount to its challenging the accuracy 
in law of the judgment appealed against, 
although it did not appeal and, therefore, 
that allegation is inadmissible. The argu­
ment that what is in the pleading of 
2 March 1992 ought to have been pro­
duced within a period of three months from 
the date when the applicant gained knowl-
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OPINION OF MR COSMAS — CASE C-227/92 P 
edge of it, by analogy with Article 125 of 
the Rules of Procedure concerning applica­
tions for revision, is refuted by the appel­
lant's reply to the effect that procedural 
time-limits cannot be applied by analogy. In 
any event, since the appellant gained 
knowledge of the matters on which it has 
raised pleas only thanks to the disclosures 
made by the Commission's representatives 
at the hearing in the PVC cases, which took 
place on 10 December 1992, the date of 
2 March 1992, on which the pleading was 
lodged, is within that three-month period. 
37. For its part, the Commission points out 
as a preliminary matter that the appellant is 
wrong to maintain that the Court of First 
Instance was obliged to order reopening of 
the procedure because to do so was not 
indispensable in the present case. The 
request for reopening of the oral procedure 
by the appellant was not, it is the Com­
mission's contention, based on matters of 
significance in achieving a resolution of the 
dispute and was, moreover, made out of 
time. In the Commission's view, the Court 
of First Instance was right to reject the 
pleas based on infringement of the rules on 
languages applicable to the decision or on 
the non-existence of a duly authenticated 
original of the contested decision. In fact, 
as the Court went on to hold, in its PVC 
judgment, 19 even on the supposition that 
they do exist, those irregularities do not 
entail the non-existence of the act which 
they affect. As regards the matters pre­
sented by the appellant as new facts, the 
Commission points out that, as such facts 
are connected with the PVC judgment of 
the Court of First Instance, they cannot be 
relied on in support of an application for 
reopening of the oral procedure in other 
proceedings. 20 If the new facts are consid­
ered to be constituted by the disclosures 
made at the hearing by the representatives 
of the Commission on which the PVC 
judgment of the Court of First Instance was 
based, their submission by Hoechst in its 
request of 2 March 1992 was out of time. 
The relevant request ought to have been 
made within three months of the date when 
those new facts came to the applicant's 
knowledge by analogy with the provisions 
laid down in the case of an application for 
revision under Article 125 of the Rules of 
Procedure of the Court. The Commission 
states that, as early as the afternoon of 
22 November 1991, one of its officials had 
acknowledged in the context of the proce­
dure leading to the hearing in the PVC 
cases that the procedure laid down in 
Article 12 of the Commission's Rules of 
Procedure had fallen into disuse. From that 
day on, then, according to the contentions 
on behalf of the respondent, Hoechst knew 
of the facts on which it relied in its request 
for the reopening of the oral procedure. 
The Commission adds that the appellant is 
wrong to take the view that the Court of 
First Instance indirectly acknowledged that 
the pleading had been submitted within the 
time- limits. On the contrary, in the Com­
mission's view, it expressed doubts in its 
judgment as regards the submission at the 
correct time of the pleas raised in the 
pleading. 
38. The Commission further contends that 
the Court of First Instance rightly held that 
19 — See paragraph 14 above. 
20 — The Commission refers to the order of 26 March 1992 in 
Case T-4/89 Rev. BASF v Commission [1992] ECR 
II-1591, and to the judgment in Case C-403/85 Rev. 
Ferrandi v Commission [1991] ECR I-1215. 
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HOECHST V COMMISSION 
Hoechst had not submitted with the request 
in question the requisite sufficient evidence 
for its application for the reopening of the 
procedure to be acceded to. The position 
taken by the Court of First Instance con­
tinues to be correct even if the request of 
2 March 1992 is interpreted as meaning 
that it is alleging formal invalidity and not 
that the Polypropylene decision in question 
is non-existent. Moreover, it points out that 
the appellant, not the Commission, bore 
the burden of proof as regards the existence 
of the relevant procedural defects. The 
contrary interpretation, which is advocated 
by the appellant, runs counter to the 
presumption of legality of acts of Commu­
nity institutions in accordance with case-
law. 21 Further, Hoechst could not merely 
rely on a probable failure to observe the 
procedure laid down in Article 12 of the 
Commission's Rules of Procedure. It had to 
bring forward concrete evidence to show 
that the polypropylene decision had under­
gone alterations as to its content after its 
adoption. That interpretation which was 
followed by the Court of First Instance in 
the judgment under appeal is supported, 
again in the Commission's view, by the 
judgment in Lestelle v Commission 22 and 
the Court's PVC judgment. 23 In any event, 
the possible formal invalidity of the Poly­
propylene decision ought, in accordance 
with Article 48(2) of the Rules of Proce­
dure of the Court, to have been submitted 
in the originating application and not in 
any event after the conclusion of the oral 
procedure. In the alternative, it is conten­
ded on behalf of the respondent that it was 
in the absolute discretion of the Court of 
First Instance to decide whether reopening 
of the procedure was necessary or not. 24 
39. As far as the interpretation of the 
provisions of Article 64(3)(d) of the Rules 
of Procedure is concerned, the Commission 
observes that there are no predetermined 
conditions which may be inferred either 
from those provisions or from any other 
procedural rule which, when met, oblige 
the Community judicature to accede to a 
request for the adoption of measures of 
organisation of procedure. Consequently, it 
is not correct to assert that the Court of 
First Instance is required to engage in the 
task of information collection also to cover 
facts raised belatedly or in a general and 
uncertain manner by the parties. Conver­
sely, the respondent relies on the provisions 
of Article 173 of the Treaty, the first 
paragraph of Article 19 of the EEC Statute 
of the Court of Justice and Article 44(1)(c) 
and (e) and Article 48(1) and (2) of the 
Rules of Procedure of the Court of First 
Instance from which it derives the principle 
of the obligation on the part of the 
applicant party to present his applications 
within the time-limits, together with evi­
dence in support. Measures of organisation 
of procedure are not intended to remedy 
omissions of the parties as regards the 
presentation of their arguments within the 
time-limits and in accordance with legal 
requirements. In any event, owing precisely 
to its exceptional nature, any application 
for the adoption of measures of organisa­
tion of procedure must be made within a 
reasonable time frame; otherwise there is a 
risk that the sound administration of justice 
will be compromised. Thus, in the Com­
mission's view, the application made by 
Hoechst is out of time. 21 — The Commission refers to the judgments in Dunlop 
Slazenger v Commission, Fiatagri and New Holland Ford 
v Commission and John Deere v Commission (cited above 
at footnote 12). 
22 — Case C-30/91 P Lestelle v Commission [1992] ECR 
I-3755. 
23 — Loc. cit., paragraph 14. 
24 — The Commission cites in support the judgment in Case 
T-33/91 Williams v Court of Auditors [1992) ECR II-2499, 
paragraph 31. 
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OPINION OF MR COSMAS — CASE C-227/92 P 
(b) My reply on the above issues 
40. In light of the foregoing, the question 
arises whether the Court of First Instance 
was legally entitled to reject the application 
to reopen the procedure, a question directly 
linked with the likely existence of substan­
tial procedural defects in the Commission's 
Polypropylene decision. In this connection I 
would refer to the analysis at paragraphs 
47 to 79 of my Opinion in Hüls v 
Commission from which it is apparent that 
the solution which the Court of First 
Instance opted for was correct, albeit on 
different grounds; accordingly, the pleas in 
support of the contrary viewpoint must be 
rejected. 
Conclusion 
41. In light of all the foregoing I propose that the Court should: 
(1) Dismiss in its entirety the appeal brought by Hoechst AG; 
(2) Dismiss the intervention; 
(3) Order the intervener to pay its costs; 
(4) Order the appellant to pay the remaining costs. 
I - 4464